A.    Taking Older Adults into Account

The starting point of an anti-ageist approach to the law is to recognize the existence of older adults as a group who may in some respects have different needs and experiences than younger persons, whether due to the accumulated effects of their life-courses, social structures, or marginalization and stereotyping of older persons. With this recognition, as part of respecting older adults as valued citizens, one must take those particular needs and circumstances into account when designing laws, policies and programs. 

As is discussed at some length in Chapter III of this Interim Report, there are a number of widely held stereotypes regarding older adults. If legislation or policy is based on stereotypes, it is likely to have negative effects on this population. In order to avoid this, it is important to consult directly with older adults themselves, and hear their experiences and perspectives. As well, recourse should be made to recent research regarding older adults, so that law, policies and practices are based on evidence rather than assumptions. 

A difficulty in designing laws or policies that acknowledge the needs and circumstances of older adults is that older adults are an extremely diverse group. “Older age” spans several decades, and older persons as a group incorporate all of the diversity of the population at large in terms of racialization and ethnicity, sexual orientation, health and disability, education and socio-economic status, citizenship and immigration status, marital and family status, and other characteristics. Contrary to attitudes that see age itself as overwhelming all other forms of diversity to create a homogenous group of older persons, differences tend to be magnified rather than minimized over the life-course. Therefore, one must consider older adults, not as a single group, but as a broad category that contains many groups within it that may share commonalities around some experiences, but may also diverge in many ways. 

The following sections of this Chapter outline some basic elements of the experiences of older adults. It is clearly not intended to be exhaustive: this would be beyond the range of possibility for any but the most voluminous document. Rather, it is intended to suggest some factors with respect to older adults that should be taken into account when designing laws or policies. 

Further, this discussion of the experiences and circumstances of older adults focuses on those aspects that may impact older adults’ relationship with the law. Chapters IV and V of this Interim Report outline some key aspects of how older adults interact with the law, including some laws that older adults are particularly likely to interact with and the ways in which they may access law and the legal system. For example, older adults are likely to encounter the law in the context of ongoing relationships, whether with family members or with key institutions, like long-term care homes. As another example, the law is likely to be relevant at key transition-points in the lives of older adults – from paid employment to retirement and access to income security programs, for example, or from living in their homes in the community to some form of supported or congregate living. This Chapter’s brief consideration of the circumstances of older adults is intended to assist in understanding that legal and policy context.

It should be noted that while there may be some aspects of the lives of older adults that are closely tied to biological aspects of aging and can therefore be assumed to be reasonably constant, none of the characteristics outlined below is carved in stone. The circumstances of older adults are shaped by their life experiences, and given the rapid social changes over the last century, those who are entering into older adulthood now will have had very different life experiences from those who are currently in their 80s and 90s with respect to opportunities for education, employment options and patterns, gender roles and many other factors. Further, the lives of older adults are very much shaped by current social structures and realities, and these are also in flux.  Options regarding living environments and home care; the availability of informal care due to changing family structures; the impact of the current economic climate on pensions, savings and investments – these are just a few examples of how constraints and opportunities for older adults are constantly changing. Law reform must be based on current research as well as look ahead to potential trends for the future. 

 

B.    Who Is An “Older Adult”? Approaches and Definitions

As a threshold issue, there is considerable debate over definitions in this area. Should age be used as a category at all? What is meant by “old (or older) age”?  Who should be considered an “older adult”?

1.                  Age as a Category 

The use of age as a way of categorizing people is so common a practice as to be almost unnoticeable. Our ages mark expected stations on our life-course – times when we are expected to receive an education, to be part of the labour force, to establish a family, to retire. Youth and age are often associated in the popular imagination with particular qualities; for example, youth with energy, curiosity and exploration, and age with wisdom and perspective.  

Law also commonly uses age, at both the older and younger ends of the spectrum, as a category on the basis of which distinctions may be made. Older age is often a requirement for accessing particular benefits such as pensions or income supports, or a marker for additional responsibilities such as seniors’ drivers testing, or the basis on which particular activities or benefits are restricted, as with mandatory retirement or employment benefits.  

With growing attention to social policy issues related to older adults, and to barriers and negative attitudes faced by older adults, there has been a move to re-examine the use of age as a category: a notable example is the Law Commission of Canada’s project, Does Age Matter? Law and Relations Between Generations.[19] There has been a growing recognition that age distinctions, like distinctions based on race, sex, sexual orientation or disability, are not always based on need and can be hurtful, undermine the dignity of older persons and have significant negative impact on older persons. The Ontario Human Rights Commission (OHRC) has noted that: 

Age discrimination is not seen as something that is as serious as other forms of discrimination, despite the fact that it can have the same economic, social and psychological impact as any other form of discrimination.[20] 

Indeed, as is discussed in Chapter IV of this Report, some decisions of the Supreme Court of Canada suggest that age-based distinctions may be viewed in law differently (and less critically) than distinctions based on other enumerated grounds, such as disability or sex.[21] 

Age-based distinctions may be based on ageist stereotypes about the abilities, worth and contributions of older persons. They may also themselves reinforce ageist thinking: it has been pointed out that the use of categories is unavoidably homogenizing and can foster tensions between social groups.[22] The use of age as a category over-emphasizes the importance of chronological age in determining a person’s likes and dislikes, abilities and limitations, hopes and fears, and tends to blur the perception of older adults as unique individuals. The Law Commission of Canada pointed out that:

The categorization of people into age groups for the purpose of awarding benefits or imposing restrictions has a number of disadvantages. Categories lead to comparisons and encourage people to emphasize differences between age groups; this can lead to stereotypes and incorrect assumptions. Categorization can also fail to recognize similarities between age groups and differences within age groups.[23]  

The focus on making distinctions and counting people “in” or “out” based on certain characteristics may detract from the principle of “inclusive design”. That is, instead of focusing on characteristics assumed to be associated with age and aging, one might more productively focus on how to design programs and policies to include the needs and circumstances of all, regardless of age or abilities.[24] This does not or should not mean ignoring differences, including those based on age or abilities; rather, it requires us to recognize variation as part of the human condition and to embrace that variation to the degree possible in our plans and designs.  

A number of alternatives to the use of age as a category have been proposed, including focusing on key transition points (such as withdrawal from the labour force or relocation into a long-term care setting), using generational criteria, or using self-identification.[25] Of course, these alternatives may not all be appropriate for all purposes – it is, for example, hard to imagine an income support program based on self-identification –  and may frequently be more complex and expensive to implement than age-based categories. 

However, while use of age categories risks reinforcing ageist thinking, it is at the same time indispensable in identifying and describing institutionalized ageism. Without the use of age as a marker in social science research, we would not, for example, be able to identify and attempt to redress age-based disparities in income, access to opportunities or provision of services. Ageism cannot be combated without measuring differences across the lifespan. Given that this Project aims to develop an anti-ageist approach to the law, the Project must consider what is meant by older age, at least for the purposes of this Project. 

This does not mean, however, that age is always appropriately used as a category. The use of explicitly age-based categories in law and policy will be considered at some length in Chapter IV of this Interim Report.

 

2.                  Approaches to a Definition

If one accepts the necessity of using age as a category for some purposes, that leaves still the difficult question of how to define membership in that category. If “old” and “young” or at least “older” and “younger” are useful distinctions to make, how ought one to make them?  Again, there is no consensus on this question.

It has been pointed out that the labels of “young” and “old” are by their nature relative and elude rigid compartmentalization:

In the context of youth and aging, the slippery and socially constructed nature of our categories becomes especially clear. The human life span is a continuum. Yet for many purposes, society describes the aging process in a series of near water-tight compartments: federally defined childhood ends and adulthood begins at exactly 18 years of age, and adulthood gives way to old age at 65. There may be defensible physical, psychological or developmental reasons for setting these general boundaries. More importantly, they are socially, legally and politically meaningful…. But there is an element of arbitrariness in our line drawing…. [T]he aging process is both an individual and a gradual one: we will not all be equally situated physically, mentally or even financially when we reach 65. Nor will we wake up old one morning, simply because we have received our first pension cheque.[26]

There are three commonly adopted approaches to defining “old age” or “older age”: chronological, socially constructed, and self-identification.&