The person accommodated in long-term care and the married spouse must contribute financially to the cost of accommodation in a public or contracted CHSLD or in an intermediate resource. The current rules on financial contribution can hardly be applied to the marital experience of several people accommodated in these different facilities. The Act respecting health services and social services and its implementing regulations have always expressly stated the financial responsibility of the married spouse and have never been amended to take into account other marital arrangements. Couples have filed for divorce, reluctantly and with heartbreak, in order to avoid this ignominy.
The Council for the Protection of Patients (CPM) deplores the fact that the Minister of Health did not seize the opportunity to correct this situation, a source of inequity for many. Minister Dubé’s Bill 15, An Act to make the health and social services system more efficient, repeats, word for word, the responsibility of the married spouse in its section 659. However, for many years, several representatives or family members of users have expressed their incomprehension and their complete disagreement with this aspect of the law. On more than one occasion, the media have reported on the obsolescence of this rule, which inexorably leads the unsheltered married spouse to become poorer and to go into debt to pay the monthly bill for the spouse’s accommodation in a CHSLD.
This is the case, at least, for this citizen who revealed to Radio-Canada on May 30, 2016, that he had to partially cover the costs of his spouse who suffers from Alzheimer’s disease and is living in a CHSLD. The Québec Ombudsman denounced the unfairness resulting from this rule on February 17, 2014, then returned to the charge in an opinion published on June 10, 2020. In it, he provides a detailed report on the financial consequences of the unfair rules for married couples, but also for common-law spouses.
The Québec Ombudsman is asking the Ministry of Health and Social Services (MSSS) to update its regulations to ease the burden on married spouses and to apply the same rules to common-law spouses. In December 2020, the Minister responsible for Seniors, Marguerite Blais, provided some relief to married spouses, without however changing the definition of the word “spouse” contained in the law, which excludes common-law spouses.
Several people have contacted the Administrative Tribunal of Quebec to contest a decision that set the contribution taking into account the presence of a married spouse, often separated for several years. Several institutions have also complained about the administration’s decisions that made separated spouses responsible when it was often impossible for them to recover any payment from them. Common-law spouses have also complained about the fact that they were not considered in the calculation of the contribution, which sometimes caused them financial harm when the user was the main provider for the household.
For reasons of expediency, the MSSS has decided not to modify the text of the Act, but to relax its application by means of an administrative directive from the Régie de l’assurance maladie du Québec (RAMQ), in force since 1e April 2001, in order to disregard the spouse’s income and assets when it is impossible to obtain the spouse’s cooperation and legal separation has been declared by the Court. Unfortunately, this directive still leads couples to go to court to obtain a judgment of legal separation in order to benefit from the promised administrative relief. The directive continues to exclude the common-law spouse in the calculation of the contribution.
Overall, the tax law as well as the social laws and their regulations recognize the common-law spouse for the purposes of their application. It is high time that the MSSS modernizes and puts an end to the social injustice experienced by many spouses whose civil status is not that of married.
Why not simply use the concept of “involuntary separation” used by Canada’s Old Age Security when spouses become separated for reasons beyond their control? This optional mechanism allows married or common-law spouses, at their request, to be considered single when assessing their respective incomes. If the involuntary separation results in one of them being disadvantaged, they can choose not to apply. Applying such a principle would be simple and beneficial for the person in care and the spouse at home, regardless of their marital status.
In conclusion, the CPM is of the opinion that the desire for efficiency that constitutes the main intention of this bill should not have ignored the inequities created by a definition of the word “spouse” that belongs to a bygone era. The parliamentary committee of December 7 unfortunately froze the fate of spouses in less than ten minutes by ignoring the problem.
However, in 2021, common-law unions represented 42% of people living as a couple. Added to this are the aging of the population and life expectancy, which contribute to the increase in the number of people in accommodation who have a type of conjugal union other than marriage. Effectiveness necessarily involves modernizing the concept of spouse. The fact of not having acted on this issue in Bill 15, adopted under gag order, unfortunately demonstrates that here, effectiveness is primarily aimed at structural changes, and that it does not translate into a concrete solution for the user.