Canada: Prescribing Legal Remedies In A Hospital Setting

Printed with permission from Pro Bono Law Ontario.

On a recent walk to pick up her eldest daughter from kindergarten, Cindy Desbiens heard the words she'd been dreaming about for years.

"Mom, keep up!"

The tiny voice from far ahead was that of Desbiens' three-year-old daughter Charolette. An outspoken preschooler with boundless energy, the youngest in the family wasn't always the one doing the yelling or the running.

Charolette was born with a rare form of congenital heart disease called Hypoplastic Right Heart Syndrome that essentially left her with half a working heart. She spent the first four-and-a-half months of her life in Toronto's Hospital for Sick Children where she endured two heart surgeries and a long list of other, complicated medical procedures.

Every step of the way, her parents were by her side.

But when Cindy and Jeff Desbiens tried to claim a tax credit for the more than $12,000 in expenses the family incurred travelling back-and-forth from their Waterloo, Ontario home to support and learn to care for their critically-ill daughter, the Canada Revenue Agency said their presence at the hospital was unnecessary. They were just visiting.

Their claim was denied.

"I was shocked," remembers Cindy Desbiens. "At the time of her first surgery, Charolette was just five days old. Who would ever say she didn't need us?"

Frustrated by their failed attempts at appeal, the couple turned to SickKids for help. They received some hopeful news: the access-to-justice charity, Pro Bono Law Ontario (PBLO), had just launched a unique new project at SickKids that brought health care and legal care together to help low-income paediatric patients and their families.

THE FAMILY LEGAL Health Project is a first in Canada and it's already attracting serious attention. The project landed a two-year funding grant in September from the Law Foundation of Ontario. By May 1, PBLO triage lawyer, Lee Ann Chapman, was on site at the hospital fielding inquiries from social workers and health care providers, and referring cases to Legal Aid Ontario and PBLO's roster of volunteer lawyers at law firm partners McMillan and Torkin Manes Cohen Arbus.

In the first month alone, Chapman received 30 referrals on cases involving everything from health care access and immigration, to education, consent and capacity.

"There are a multitude of issues that can affect a child's health and not all of them are medical," explains SickKids social work director Ted McNeill. "Without being sensitive to the social context, we may be ineffective in delivering health services."

The Desbiens were matched last summer with McMillan partners and tax lawyers Michael Friedman, Ryan Morris and Michael Templeton, who agreed to tackle the case for free. They promptly prepared and filed a Notice of Appeal to the Tax Court of Canada to secure the Desbiens' right to a tax credit for their expenses. By January, the Desbiens had their second round of good news – the Canada Revenue Agency decided not to contest the Desbiens' appeal. A favourable judgment was rendered by the Tax Court of Canada, and the Desbiens were permitted to fully claim a tax credit for their expenses.

With the continued pro bono support of the lawyers at McMillan, the Desbiens are now lobbying the government for a change in the definition of medical expenses. Another win would mark a first for PBLO's Family Legal Health Project toward its mission of systemic advocacy. "Equally important," says SickKids' McNeil, "is the role of the process in raising awareness about the need to understand health in the broadest possible sense."

For his part, Friedman is happy to help ensure other families don't have to endure the tax challenges that confronted the Desbiens.

"When taxpayers face tax disputes with the government, it's hard to get effective representation without having to incur significant costs. Families in this kind of situation have enough to worry about without adding the cost of legal representation. They should be focusing their attention on other, more important things."

Thanks to McMillan, PBLO and SickKids, the Desbiens family is doing just that.

Join Pro Bono Law Ontario in September for the official launch of the Family Legal Health Project at SickKids. Visit for details of the event.

The foregoing provides only an overview. Readers are cautioned against making any decisions based on this material alone. Rather, a qualified lawyer should be consulted.

© Copyright 2009 McMillan LLP

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