Consideration of the law as it affects older persons has often been restricted to issues which, on their face, clearly have a disproportionate impact on older persons, such as estates, health care, and end of life issues. Less often considered are laws which, while they have broad application, may have a different impact on older adults than they do on others, and which might be fairer or more effective if they took issues related to aging into account.
As well, elder law is sometimes treated as a collection of disparate issues, and it has been felt that this area of the law would benefit from a more holistic and principled approach.
The aging of the Canadian population, together with the advances made by organizations advocating for seniors’ rights, have in recent years brought issues related to elder law more frequently to the forefront. The recent repeal of Ontario’s mandatory retirement laws was the result of concerted advocacy by many organizations and individuals, and a recognition of the importance of ensuring that the law takes into account the rights, needs and circumstances of older adults.
This Project is based in part on a proposal by Professor David Freedman, a professor of Elder Law at Queen’s University Law School.
It is the intent of this Project to develop a systematic framework for the law as it affects older adults. The focus of this Project is not on reform of any one specific issue related to older adults, although specific issues may be examined as examples. Rather, this Project aims to develop a coherent approach to this area of the law, which can be used as a template, or set of principles, in developing law reform proposals related to older adults, and in ensuring that new laws take into account the needs and circumstances of this group. Therefore, the aim of this project is not to develop specific recommendations in any one area of the law as it affects older adults, but rather to provide a basis on which any area of the law may be examined from an anti-ageist perspective.
In keeping with the Law Commission of Ontario’s (LCO) holistic approach to law reform, this Project will consider laws in their context, taking into account how they are operationalized and implemented, and whether laws affecting older adults are achieving their purposes or are having unintended impacts on older adults.
Given the breadth of scope of this Project, it will be a multi-stage, multi-year endeavour. The Project therefore began with a Pre-Study, which aimed to delineate the scope of the Project and identify key themes, principles and issues for examination.
In May of 2008, the LCO launched this Pre-Study with a Consultation Paper on Shaping the Project. This Paper was posted on the LCO website and distributed to a wide range of academics and researchers, legal clinics, community organizations, and government bodies. The Consultation Paper provided a brief overview of themes and issues identified through its preliminary research, and requested feedback from stakeholders on the scope and design of the Project, including key issues and principles. The LCO received written submissions from 21 organizations, and held meetings with six organizations and individuals. The LCO wishes to extend its thanks to all those who participated in this consultation for their invaluable contributions. In particular, the LCO would like to thank the Ontario Seniors’ Secretariat for the opportunity to obtain comments and feedback from its Community Liaison Committee. A full list of organizations contributing to this consultation may be found at the end of this Report.
This Consultation Report marks the end of this first stage of the Project. Given the volume of submissions received by the LCO, and the myriad topics and concerns identified, this Consultation Report does not attempt to report on or consider all of the issues identified. Rather, it sets out the results of the Pre-Study, and identifies next steps for the Project, including key themes, issues and principles and the LCO’s research priorities.
The LCO has identified, through this process, five preliminary principles that may guide the law as it affects older adults: independence (autonomy), participation, security, dignity and respect for the diversity of older adults. The next challenge for this Project is to consider, research and analyze the scope, meaning and interaction of these five principles, and to determine how they may concretely apply to some of the pressing current issues in the law as it affects older adults.
The LCO will consider these principles through research and analysis on the following five questions:
1. What would an anti-ageist approach to the law look like?
2. When is it appropriate or effective to use age as a legal category?
3. What principles and approaches best promote access to the law for older adults?
4. How can the law appropriately recognize and support the relationships of older adults?
5. How can a principled framework for the law as it affects older adults be applied to ensure secure and dignified living environments for older persons?
These preliminary principles and questions will be further outlined in the remainder of this Report.
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