[1] A variety of terms are used to describe the category of persons who fall within the ambit of this project, including “seniors”, “elders”, “older adults”, or “third agers”. For the purposes of this Paper, the terms “older person” or “older adult” will be used, while recognizing that the most appropriate usage is a source of continuing discussion.
[2] Figures in this section are based on Martin Turcotte and Grant Schellenberg, Portrait of Seniors in Canada (Ottawa: Statistics Canada, 2006), unless otherwise noted.
[3] For a helpful discussion of the issues, see Christie Ford, “Bright Lines: Status, Recognition and the Elusive Nature of Ageing” (1996) 2 Appeal 4-7. The Ontario Human Rights Commission has adopted this approach in addressing the issue of age discrimination: Ontario Human Rights Commission, Policy on Discrimination against Older Persons because of Age (Toronto: 2007) at section 2.2.
[4] This approach was adopted by the Special Senate Committee on Aging. See Special Senate Committee on Aging, First Interim Report: Embracing the Challenge of Aging (Ottawa: Senate of Canada, March 2007), at 11.
[5] The term “unattached” includes women who were never married, widowed, or divorced. While one might anticipate differences in the financial status of each of these groups (for example, widows are likely to have access to survivor benefits, which may increase their financial security), Statistics Canada does not separately analyze the income levels of each of these subgroups.
[6] Cara Williams, “Finances in the Golden Years”, Perspectives (Ottawa: Statistics Canada, November 2003).
[7] Cara Williams, see above.
[8] Richard Shillington, Research Paper: Occupational Pension Plan Coverage in Ontario (Toronto: Expert Commission on Pensions, 2007)
[9] Only a small proportion of the population of older adults has Alzheimer’s disease or another form of dementia: according to the 2003 Canadian Community Health Survey, only two per cent of Canadians aged 65 and older had dementia. However, dementia has a particularly significant impact on older persons for two reasons: first, the prevalence increases markedly with age, so that approximately one-third of persons aged 85 or older has some form of dementia; and secondly, because older persons with dementia are at significantly increased risk of dependency and institutionalization (see Helen Trottier et al, “Living at Home or in an Institution: What Makes the Difference for Seniors?”, Health Reports (Spring 2000, vol. 11, no. 4)).
[10] The International Plan of Action on Ageing was adopted by the first World Assembly on Ageing in Vienna in 1982, and endorsed by the United Nations General Assembly later that year (Res. 37/51). It was the first international instrument on aging, and guided thinking and the formulation of policies and programs on aging.
[11] United Nations, Principles for Older Persons, G.A. Resolution 46/91.
[12] World Health Organization, Active Ageing: A Policy Framework, 2002.
[13] Ageism may be defined as any attitude, action or an institutional structure which subordinates a person or a group because of age, or any assignment of roles in society purely on the basis of age. Most often in our society, ageism reflects a prejudice against older persons, a negative bias toward the aging. As such, ageism is broader than stereotyping, although stereotyping may lead to and support ageism.
[14] See, for example, the discussion in Marie Beaulieu and Charmaine Spencer, Older Adults’ Personal Relationships and the Law in Canada: Legal, Psycho-Social and Ethical Aspects (Ottawa: Law Commission of Canada, 1999), pp.34-35.
[15] In the mid-1990s, the Nova Scotia Law Reform Commission completed projects on Adult Guardianship (1993), Living Wills (1994), Adult Guardianship and Personal Health Care Directives (1995), and Enduring Powers of Attorney (1999). In the late 1990s, the Manitoba Law Reform Commission completed projects on Assessments of Competence and Adult Protection and Elder Abuse. Recently, the Manitoba Law Reform Commission worked together with the Alberta Law Reform Institute and the Saskatchewan Law Reform Commission on Enduring Powers of Attorney (2003). The British Columbia Law Institute completed a project on Adult Guardianship in 2006, and in 2002 the Alberta Law Reform Institute completed a project on Non-Resident Trustees under the Dependent Adults Act.
[16] S.O. 1996, c. 2, Schedule A.
[17] S.O. 1992, c. 30.
[18] United Nations Convention on the Rights of Persons with Disabilities, 13 December 2006, G.A. Res. 61/106.
[19] Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497. The Court held that the denial of Canada Pension Plan survivor benefits to a 30 year-old woman without dependents, based on her age, did not discriminate on the basis of age, as the age-based distinction in question was not based on stereotypes, and did not violate human dignity.
[20] Ontario Human Rights Code, R.S.O. 1990, c. H-19, ss. 14, 15.
[21] Section 25(2) of the Ontario Human Rights Code protects from challenges pension and benefit plans that comply with the Employment Standards Ac, 2000 and its accompanying regulations. O.Reg. 286/01, which regulates employment-related health, insurance and dental plans, regulates such plans only insofar as they apply to persons between the ages of 18 and 65, thereby permitting differential treatment of persons over age 65. The Ontario Human Rights Commission has expressed concerns regarding these provisions, and recommended legislative change.
[22] For a thorough and thoughtful discussion of the use of age as a category, see Law Commission of Canada, Does Age Matter? Law and Relationships Between Generations (Ottawa: Law Commission of Canada, 2004).
[23] Special Senate Committee on Aging, see note 4, at 8 and following; Beaulieu and Spencer, see note 14, at 21.
[24] See, for example, Ontario Human Rights Commission, Policy on Discrimination Against Older Persons because of Age, see note 3, section 4.5.
[25] Ontario Human Rights Commission, see note 3, at section 5.3.
[26] See for example Wayne J. Millar, “Older Drivers – A Complex Public Health Issue” Health Reports (Ottawa: Statistics Canada, Autumn 1999); Deborah Laliberte Rudman et al, “Holding On and Letting Go: The Perspective of Pre-Seniors and Seniors on Driving Self-Regulation in Later Life” Canadian Journal on Aging 25(1): 65-76 (2006); H. Tuokko and F. Hunter, Using “Age” as a Fitness to Drive Criterion for Older Adults (Ottawa: Law Commission of Canada, 2002).
[27] See, for example, Donald Poirier and Norma Poirier, Why is it so Difficult to Combat Elder Abuse and in Particular, Financial Exploitation of the Elderly? (Ottawa: Law Commission of Canada, 1999); Canadian Network on the Prevention of Elder Abuse, Canadian Laws on Abuse and Neglect (Ottawa: 2007).
[28] There has been some work done in other jurisdictions. In the United States, groundbreaking work was done almost thirty years ago by the American Bar Association’s Commission on the Legal Problems of the Elderly. In Australia, the National Research Institute on Gerontology and Geriatric Medicine undertook a project on “Law and Old People in Australia” in 1983.
[29] It should be noted that over the years, a number of organizations across Canada, such as Canadian Pensioners Concerned, the Public Legal Education Association of Saskatchewan, the University of Ottawa Legal Aid Society, and others have published plain language guides to the law for older persons, in order to address this barrier.
[30] Ontario Building Code Act, 1992, S.O. 1992, c. 23.
[31] R.S.O. 1990, c. H.19.
[32] S.O. 2005, c. 11.
[33] Ontario Human Rights Code, R.S.O. 1990, c. H.19, s. 47(2).
[34] See, for example, the Ontario Human Rights Commission’s Submission of the Ontario Human Rights Commission Concerning Barrier-Free Access Requirements in the Ontario Building Code (March 2002); Moving Towards Barrier-Free Services: Final Report on the Restaurant Accessibility Initiative (July 2006); Submission of the Ontario Human Rights Commission to the Transportation Standards Review Committee Concerning the Initial Proposed Transportation Accessibility Standard ( August 2007), all available online at www.ohrc.on.ca.
[35] Sylvie Lafrenière et al., “Dependent Seniors at Home – Formal and Informal Help”, Health Reports (Ottawa: Statistics Canada, August 2003).
[36] Cara Williams, “The Sandwich Generation”, Canadian Social Trends (Ottawa: Statistics Canada, Summer 2005). The actual numbers of Canadians providing both elder care and childcare are relatively small – about 712,000 in 2002. However, the stresses on this group may be considerable, with significant numbers reporting lost income, reductions in work hours, and impacts on their health and social life.
[37] Employment Standards Act, 2000, S.O. 2000, c. 41, s. 49.1.
[38] Ontario Human Rights Commission, The Cost of Caring: Report on the Consultation on Discrimination on the Basis of Family Status (Toronto: 2007), and Ontario Human Rights Commission, Policy and Guidelines on Discrimination on the Basis of Family Status (Toronto: 2007).
[39] For further information see www.ccels.ca.
[40] British Columbia Law Institute, Report on the Parental Support Obligation in Section 90 of the Family Relations Act (Vancouver: March, 2007).
[41] Family Law Act, R.S.O. 1990, c. F.3, s. 32.
[42] Statistics Canada, General Social Survey (Ottawa: 1999).
[43] For example, offences under the Criminal Code include intimidation, uttering threats, harassing phone calls, theft, fraud, criminal breach of trust, conversion by a trustee, and assault.
[44] This Bill of Rights is inserted in the three statutes that currently govern long-term care homes in Ontario: the Nursing Homes Act, R.S.O., 1990, c. N.7, the Charitable Institutions Act, R.S.O. 1990. c.C.9, and the Homes for the Aged and Rest Homes Act, R.S.O. 1990, c. H.13.
[45] Substitute Decisions Act 1992, S.O. 1992, c. 30, ss. 27, 62.
[46] See discussion under Access to the Legal System.
[47] Turcotte and Schellenberg, see note 2, at 157.
[48] Susan Stobert and Kelly Cranswick, “Looking After Seniors: Who Does What for Whom?” Canadian Social Trends (Ottawa: Statistics Canada, Autumn 2004).
[49] This issue has recently been considered by the Nova Scotia Law Reform Commission. See Final Report: Grandparent-Grandchild Access (April 2007).
[50] Pamela Cross, Grandmothers and the Law (Ontario Women’s Justice Network, May 2005).
[51] Ontario Human Rights Commission, The Cost of Caring, see note 38.
[52] Yude M. Henteleff, “Trusts and Planning for Children with Disabilities”, Elder Law: Issues for an Aging Population (Winnipeg: Law Society of Manitoba, November 2003).
[53] For an overview, see Jennifer A. Cooper, “Family Law Concerns for Elder Clients”, Elder Law: Issues for an Aging Population (Winnipeg: Law Society of Manitoba, November 2003)
[54] The legal framework for reverse mortgages has been the subject of research and recommendations by the Canadian Centre for Elder Law Studies. See Report on Reverse Mortgages (Vancouver: Canadian Centre for Elder Law Studies, February 2006).
[55] Turcotte and Schellenberg, see note 2 at 138.
[56] R.S.O. 1990, c. N.7.
[57] R.S.O. 1990, c. H.13.
[58] R.S.O. 1990, c. C.9.
[59] S.O. 2007, c. 8, s. 194.
[60] S.O. 2006, c. 17, s. 5.
[61] Ontario Seniors’ Secretariat, News Release, September 7, 2007.
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