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Articles and Publications

September 2016

Caring for the Elderly and the Duty to Supervise

Sean Valentine
Sean Valentine,
Associate Lawyer

Michael Blinick
Michael Blinick,
Partner

 

By Sean Valentine and Michael Blinick

 

The Canadian demographic continues to age, with many baby boomers moving into the latter part of their lives. The increase in this demographic will continue to place significant burdens on the health care system, as well as adult children to care for their parents and provide the necessities of life.

One of the hardest decisions to make is when to deem an elder relative incapable of caring for themselves independently. When does a duty arise on behalf of an adult child to supervise an elderly relative who is living independently? This question and its possible ramifications provide an opportunity to revisit the case of Morrison, et al. v. Hooper and v. Young, et al.1

In Morrison, Anna Morrison was 84 years old when she was crossing as a pedestrian two blocks from her home in the City of Toronto. She was violently struck by the Defendant's vehicle and sustained serious injuries. Ms. Morrison and her two adult children commenced an action for damages and the Defendant, in turn, counterclaimed alleging that Ms. Morrison's adult children failed to properly supervise the conduct of Ms. Morrison.

The Plaintiff's medical history documented some features of “suspicious paranoid thinking” for some time prior to the accident. In addition, she was receiving assistance twice a week from an assigned personal support homemaker to aid in laundry and bathing. Her Geriatric Psychiatrist confirmed that the Plaintiff was competent enough to decide on a nursing home placement but was too high functioning to be placed in one. Though her doctor used the word “dementia” to describe her condition, the Plaintiff exhibited much independence.

At issue on motion was whether in law, there may be a duty to supervise an elderly parent who is living independently.

A motion for summary judgment was brought by the Plaintiff's adult children, seeking to strike the Defendant's counterclaim as disclosing no cause of action or failing to raise a triable issue. At issue on motion was whether in law, there may be a duty to supervise an elderly parent who is living independently. Justice Wilson, writing for the Ontario Superior Court of Justice, concluded that there is no duty in law for a child to supervise an elderly parent who is living independently.

In her reasons, Justice Wilson provided that the Plaintiff's children had acted responsibly by providing social assistance and seeking proper medical treatment and concluded that an elderly parent living independently from their children is not in a special relationship of vulnerability with the children in a corresponding position of power. An elderly person living independently, even with some difficulties, is autonomous, unless judged otherwise by the court after consultation with expert capacity specialists.

Justice Wilson granted the Plaintiffs' motion for summary judgment and ordered that the Defendant's crossclaim be struck as it was plain and obvious that the counterclaim did not disclose a cause of action.

In Summary

It is important to recognize that although Justice Wilson did not find a duty to be owed to the Plaintiff in Morrison, there are certainly circumstances in which a duty will arise in the future. We anticipate that this question will continue to surface with an aging population, the limited space in public homes, and the high cost of care for relatives to live in private facilities going into the future.

Counsel and adjusters alike, should review files where

  • elderly relatives have a history of diminished capacity, or
  • Expert capacity specialists have deemed the individuals to be incapable of making informed decisions.

These files may trigger a relative's duty to supervise and should be flagged as possible instances where a duty may be found and exposure to a claim for damages could arise from a relative's failure to discharge this duty.


1 2010 ONSC 4394 [Morrison].


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