Gold’s Legal Minute**GLM**
By Allan Gold lawyer Montreal and elder law attorney
Vol. 14, #8 – Sept. 30, 2023
Work is generally good for physical and mental health and well-being. In contrast, worklessness is associated with poorer physical and mental health and well-being. Since a job takes up a majority of your time, it can be deeply tied to your sense of self-worth and success. Nevertheless, some assert, “An occupation is what you do—it’s not who you are.” Regardless, your career is an important part of your life. And many of you out there often say, “I’ve been working all my life.” But if and when you’re too sick and can’t work, then what? Or if you must stop working in order to care or support someone near and dear, aged or critically ill, can you get some financial aid? Let’s get to work on this topic!
“Older worker” – In Canada, an older worker is frequently defined as 55 years of age or more (FPT Ministers Responsible for Seniors, 2019). However, the Organization for Economic Co-operation and Development (OECD) defines an older worker as aged 50 and older (OECD, 2006), which is the common international literature definition. 2
STATISTICS: “At 65, I still have to work” – Many of you can’t afford to stop
It’s a fact of life. Many many people need to work after 65. Here are some stats:
- One in four (24%) persons aged 65 to 70 is still working, up from 11% in 2000.
- Four in ten (39%) workers aged 65 to 69 (32% of men and 51% of women in that age group) work part-time, compared to just 12% of so-called “core- age” workers aged 25 to 54.
- Forty percent of workers over 65 are self-employed. 3
‘FACTS MANY PEOPLE DON’T KNOW ABOUT’ DEP’T
Oddly enough, many people don’t know that Employment and Social Development Canada has a program offering financial assistance (under certain conditions) when you can’t work or become a caregiver. Please be informed :
- That if you can’t work for medical reasons – there are sickness benefits. You could receive 55% of your earnings up to a maximum of $650 a week. The number of weeks of benefits you could receive depends on the date your claim begins: (a) Before December 18, 2022: up to 15 weeks; (b) On or after December 18, 2022: up to 26 weeks; (N.B. You must get a medical certificate showing that you’re unable to work for medical reasons and for approximately how long. Medical reasons include illness, injury, quarantine or any medical condition that prevents you from working.” 4 (N.B.There is no fuzziness allowed here. THE MEDICAL CERTIFICATE FOR EMPLOYMENT INSURANCE (EI) SICKNESS BENEFITS (SC INS5140 (2023-07-006)) includes a section, “Date on which the above patient became unable to work due to their medical condition.Date (YYYY-MM-DD); In my opinion, the above patient is incapable of working until: Date (YYYY-MM-DD)) ”
- That if there’s someone who is critically ill or injured or needing end-of-life care and you must be away from work to care for or support that person, there’s financial assistance available. You could receive 55% of your earnings, up to a maximum of $650 a week. As a caregiver, you don’t have to be related to or live with the person you care for or support, but they must consider you to be like a family member. The 3 types of caregiving benefits: (a) Family caregiver benefit for children-up to 35 weeks-a critically ill or injured person under 18; (b)Family caregiver benefit for adults-up to 15 weeks-a critically ill or injured person 18 or over; (c)Compassionate care benefits-up to 26 weeks-a person of any age who requires end-of-life care. Please note that you can receive benefits during the 52 weeks following the date the person is certified by a medical doctor or nurse practitioner to be critically ill or injured or in need of end-of-life care. You can take the weeks of benefits within this timeframe either all at once or in separate periods.The weeks of benefits can be shared by eligible caregivers, either at the same time or one after another. 5 (N.B.The claimant must submit a medical certificate attesting that the child or adult is critically ill or injured and requires the care or support of one or more family members. It’s a Medical Certificate for EI Family Caregiver Benefits (SC-INS5242B.pdf). The medical certificate must be signed by a medical doctor or nurse practitioner. For clarity, the health team member must declare: “B. Based on my assessment, I certify that the 3 conditions listed below existed as of (YYYY-MM-DD) I certify that the three (3) conditions existed as of (YYYY-MM-DD): The patient’s life is at risk as a result of illness or injury. Yes No If yes, please elaborate briefly (for example: condition and diagnosis); 2. There has been a significant change in the baseline state of health of the patient. Yes No; 3 . The patient requires the care or support of one or more family members. Yes No; C. In my professional opinion, the patient will require the care or support of one or more family members until:(YYYY-MM-DD).
Employment Insurance Act (S.C. 1996, c. 23)
- 12 (1) If a benefit period has been established for a claimant, benefits may be paid to the claimant for each week of unemployment that falls in the benefit period, subject to the maximums established by this section.
- (a) because of pregnancy is 15;
- (b) because the claimant is caring for one or more new-born children of the claimant or one or more children placed with the claimant for the purpose of adoption is, in accordance with the election under section 23,
- (c) because of a prescribed illness, injury or quarantine is 26;
- Marginal note:Compassionate care benefits
- (a) a family member of the claimant has a serious medical condition with a significant risk of death within 26 weeks
- (i) from the day the certificate is issued,
- (ii) in the case of a claim that is made before the day on which the certificate is issued, from the day from which the medical doctor or nurse practitioner certifies the family member’s medical condition, or
- (iii) in the case of a claim that is regarded to have been made on an earlier day under subsection 10(4) or (5), from that earlier day; and
- (b) the family member requires the care or support of one or more other family members.” (underlining by A. Gold)
LP v Canada Employment Insurance Commission, 2021 SST 405
Hon Candace R. Salmon (Tribunal Member, Social Security Tribunal of Canada) wrote:
“ Sickness benefits are a special EI benefit program. Claimants qualify for sickness benefits under different provisions than regular benefits. In this case, there is no question that the Claimant qualified for 15 weeks of sickness benefits.
 The Employment Insurance Act states that the maximum number of weeks for which benefits may be paid because of illness or injury is 15 weeks.Footnote 1 While the Claimant submitted this number is increasing to 26 weeks, as of today no change has been made to the law.” (N.B. As at December 18, 2022: it’s up to 26 weeks!)
EA c Canada Employment Insurance Commission, 2019 SST 1762 Tribunal File Number: GE-19-982
The EA case is helpful because it shines a light on the EI caregiver program and provides an insight into its application. The court found, “ I find that the three weeks of paternity benefits are not Employment Insurance benefits within the meaning of section 79.16 of the Regulations.  I find that the Appellant is not entitled to family caregiver benefits, since he has failed to show that his children’s lives were at risk.  I find that the Appellant is entitled to family caregiver benefits concerning his partner, since the claim was made during the benefit period. The Commission will have to determine whether the medical evidence allows the Appellant to show that his partner’s life is at risk.” The “at risk” factor is critical!
IS v Canada Employment Insurance Commission, 2021 SST 270
Hon. Amanda Pezzutto (Tribunal Member, Social Security Tribunal of Canada) wrote:
“ I am dismissing the Claimant’s appeal. She hasn’t proven her entitlement to caregiver benefits because she doesn’t have a medical certificate that describes her husband as critically ill.”
GA v Canada Employment Insurance Commission, 2021 SST 677
Hon. Catherine Shaw (Tribunal Member, Social Security Tribunal of Canada) wrote:
“ The Claimant hasn’t shown that he has worked enough hours to qualify for EI family caregiver benefits. He is liable to repay the benefits he was paid on this claim.”
BUT IF ORDINARILY AWAY FROM WORK
Should your condition continue and/or the circumstance persists and you’re unable to work, thereupon you would move to another level of Canada’s social safety net. It’s the disability benefit.
In Quebec, it’s through Retraite Québec. Here’s a question: “Is terminal illness a disability?” Although you may not think of yourself this way, people who are terminally ill are likely to qualify for disability benefits from the Quebec Pension Plan. The disability pension is paid to the person recognized as disabled by Retraite Québec. 6 For more information, check with Retraite Québec.
As to the ROC – rest of Canada, it’s The Canada Pension Plan (CPP). The disability benefit is “a monthly payment you can get if you: (a) Are under 65 ; (b) Have made enough contributions into the CPP; (c) Have a mental or physical disability that regularly stops you from doing any type of substantially gainful work; (d) Have a disability that is long-term and of indefinite duration, or is likely to result in death.” 7
All this to say – someday, it might be, “Heigh ho, Heigh ho, it’s ‘No Longer’ OFF to work we go!” This might be true for an older worker – it could be devastating for a senior (aged 65 to 70). Of course, “Saving for the rainy days” is most assuredly your first line of defense. If your employer doesn’t offer disability insurance, I also suggest that you call a life and health insurance agent. You might qualify for said coverage on your own. Such a policy will provide further peace of mind.
CONCLUSION: Working ≠ Living
If over 50, you’re not over the hill! Some of you working stiffs say, “I’ll work until I’m dead.” But in the blink of an eye, your working life could be gone. Of course, your life isn’t over when you cease working full-time. I know that you want to retire well. But “I’ll work until I die” isn’t a plan. It indicates an unwillingness to consider a time when you shall be without career. Indeed, there’s life after work! But first, you must accept what you can’t control. Then your job is to figure out how to make life beyond work, the best it can be !
Allan J. Gold www.allanjgold.com
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NOTICE – CAUTION –DISCLAIMER.
The material provided herein is of a general nature, strictly for informational purposes. The interpretation and analysis is not to be misapplied to a personal situation with a particular set of facts. Under no circumstances, are the herein suggestions and tips, intended to bring a reader to the point of acting or not acting, but instead, the hope is that they are to be a cause for pause and reflection. It is specifically declared that this content is not to be a replacement of, or a substitution for, legal or any other appropriate advice. To the contrary, for more information on these presents, related subjects or any other questions, it is the express recommendation of the author that everyone seek out and consult a qualified professional or competent adviser.
1Image by Stephanie Ghesquier from Pixabay
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