II. TAKING THE CIRCUMSTANCES OF OLDER ADULTS INTO ACCOUNT

II. TAKING THE CIRCUMSTANCES OF OLDER ADULTS INTO ACCOUNT2017-03-03T18:30:48+00:00

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.  

 

The Chronological Approach

Despite the relative nature of age and aging, it is still extremely common to find definitions that are based on a particular chronological age, although the precise age adopted may vary. For example, on the international stage, the World Health Organization has adopted age 60 as its transition point into “old age”. In Ontario, “senior’s discounts” and other privately-based seniors’ programs may be based on a range of ages, including 55, 60, and 65. In Canada, the age of 65 has often been used as a marker for access to many benefits and programs because for many years it has been closely associated with the major life transition of withdrawal from the labour force, a life transition which results in significant changes in income levels and sources, activities, expectations and social status. 

Changes in labour force patterns and the removal of protections for mandatory retirement requirements in most of Canada have weakened the association between age 65 and withdrawal from the workforce, a trend that is likely to continue. As well, improvements in health and life expectancy mean that age 65 is not now generally viewed as a particularly advanced age.

Still, the common association of age 65 with a transition to the status of a “senior” and its value as a clear, easily measured and understood marker means that age 65 continues to be commonly used as a marker of “old age” by many laws and social institutions. For these reasons, Statistics Canada used age 65 as its marker in drawing a statistical portrait of Canada’s senior population.[27]

 

Social Identity and Public Perception

Despite its clarity and simplicity, the use of a single chronological point in order to mark transition into old age has significant drawbacks since individuals age at different paces, both biologically and socially. As a result, some have adopted more comparative and relativistic approaches to “older age” and “older adults” that recognize the social dimensions of aging. The OHRC, in its Policy on Discrimination Against Older People Because of Age, adopted the following definition:

The term “older” is not meant to denote “old age” or stigmatise persons in any way. Rather it is simply being used as a relative concept, meaning older than those who are less likely to face the particular types of discrimination being discussed. 

It is important to remember that the concept of who is an “older” person may be a contextual one. For example, while older workers are generally those over age 45, if the average age in a workplace is 25, a 37 year old job applicant may be turned away because of a perception that she is unable to fit in with the workplace culture. Therefore in some situations, for example where the allegation pertains to negative attitudes and stereotypes about aging, it may be necessary to think not in terms of absolute, but rather relative age. In other contexts, actual age may be relevant, for example, where a person’s age is used to determine eligibility for a program or service.[28]

The two approaches are not necessarily inconsistent or irreconcilable, as the most appropriate approach for the purpose of combating negative attitudes towards older persons and ageist discrimination may be different from the one most appropriate for describing the demographic characteristics of Canadians.  However, they do point to two different aspects of the social identity associated with aging. One aspect, associated with chronological age, is based in a bureaucratically managed identity, and generally serves as a convenient administrative proxy for more complex assessments of program eligibility. Our birthdates are frequently used by government to determine responsibilities and entitlements. Another aspect of aging is conveyed by the physical appearance of the body and the presentation of self in various social settings and is thus not particularly tied to a particular age or date.[29]

 

Self-Identification

In its recent Final Report, the Senate Special Committee on Aging, in recognition of the diversity among older persons, avoided adopting any definition of “old age” or “older adult” at all, allowing readers to self-identify with respect to their potential status as older persons:

In the end, we leave it to the reader to define what they mean by seniors. There are as many ways to age as there are individuals aging. Some 60-year-olds may associate strongly with the term seniors. They may have a positive view of being a senior or elder. The term may be imbued with a sense of the wisdom which one acquires through life experience, or with well-deserved retirement from paid work.

Others may react strongly against the label “senior” and the meaning which is currently ascribed to it.

So we will use the terms “seniors” and “older persons” loosely and give full licence to the reader to determine whether or not these categories apply to them.[30]

 

3.                  The LCO’s Approach

The focus of this Project is on how the law relates to older persons. The experience of aging is a complex interaction between biological changes (that will vary across individual experiences), the effects of the life-course, the constraints and opportunities offered by social structures, and the diverse identities of older adults.  Given this complexity, and the multiplicity of the ways in which the law relates to age, it would be impossible for this Project to adopt a single definition of what is meant by an “older adult”.

In some cases, the law uses chronological age as a criterion for access to benefits, imposition of requirements, or denial of opportunities; in such situations, the bureaucratic aspects of age identity become central. In situations where those designing or administering the law may be influenced by age-related stereotypes or negative attitudes, a more comparative approach based on perceived social identity and the effect of ageist ideas is more appropriate. Self-identification may be helpful in reflecting the ways in which culture, individual experiences and social expectations affect the aging process. 

In some areas of law and aging, multiple dimensions of aging may be at play. If we consider the interaction of the law with a resident of a long-term care home, factors at play may include the health-related declines that for some accompany the experience of aging; the presence or absence of social supports such as informal caregivers and advocates, or formal home and health-care supports; the attitudes of family and friends, as well as of long-term care staff towards older persons; and the hopes and expectations of older persons themselves about their rights, their living environments and the quality of their lives. To add even greater complexity, one might consider the potential effects of gender or placement in a particular age-cohort: for example, for older women, social expectations, access to education, caregiving roles, and labour force segmentation will have profoundly shaped the financial and social resources which they bring to the experience of congregate living. 

This Project includes in its scope all those who have been identified as “old” or “older”, whether through legal and policy frameworks, social attitudes and perceptions, or self-identification. 

 

C.      Understanding the Circumstances of Older Adults

This section provides a brief outline of some key aspects of the lives of older adults as a foundation for understanding when and how older adults’ needs and circumstances, and thereby their relationships with the law, may differ from those of younger persons. Given the confines of space and the diversity among older adults, this is not intended to provide an exhaustive description; rather, it is intended to point towards some key considerations that are particularly relevant to the relationship of older adults with the law.  

Further, it is important to remember that as a result of ongoing demographic shifts, changing social attitudes and rapidly evolving legal and policy landscapes, the circumstances of older adults are constantly changing. At the same time that the move away from legislated mandatory retirement may open up new opportunities for economic security for some older adults, rapid economic change may undermine the security of those who have already withdrawn from the workforce. Recent reforms in Ontario to the laws governing both long-term care homes and the retirement homes sector may lead to profound change in the living environments of older adults.  What is true now may not be true five years from now.  

As well, the lives and circumstances of older adults are profoundly shaped, not only by current laws and policies, but by those in effect when they were children, young adults and middle-aged. For example, the literacy levels of those who are now older are the results of public policy decisions and socio-economic conditions that were in place decades ago. The challenges that now exist in ensuring that those who are now in their 80s have access to the information they need about their rights and responsibilities have their sources in long-past decisions by governments, families and individuals. 

This has two implications for any evaluations of law and policy with respect to older adults. First, any laws and policies developed to address the circumstances of those who are currently older must be rooted in a solid understanding of how the life-courses of older adults have shaped their experiences and current needs. Secondly, to understand how laws and policies may affect older adults, it is important to consider how current laws and policies are shaping the lives of those who will someday be older adults. How might our laws and policies shape the older age of those who are now children, youth, or middle-aged?

 

1.                  Older Adults in Canada and Ontario – An Overview

Demographic Trends

It is by now hardly novel to state that the population of Ontario and of Canada in general is aging and will continue to do so as a result of the combined effect of low fertility rates, longer life expectancies, and the effects of the baby boom generation. In 1981, persons over age 65 made up 9.6 per cent of Canada’s population. In 2005, that figure was 13.1 per cent. It is projected that by 2036, persons over aged 65 will make up approximately one-quarter of Canada’s population.[31]  The share of the population over age 65 is actually slightly lower in Ontario than the national average, at approximately 12.8 per cent in 2005.[32] Regardless of the proportion of the population that falls within the category of “older”, it would be important to give consideration to the needs of older persons in the design of laws; the expansion of this demographic makes the need more pressing.

 

Education and Literacy Levels

Education levels are important to take into consideration in understanding the circumstances of older adults, not only because they influence how information may be accessed, but because they have a significant relationship with other key aspects of the lives of older adults. Higher levels of education are associated with, for example, better health and reduced likelihood being low-income or socially isolated.

Overall, education levels are lower among older adults than among the general population; however, this is changing. The widening of access to higher education beginning in the 1960s has resulted over the past 20 years in significant shifts in the levels of educational attainment among older adults. The share of older adults with less than high school education has been steadily shrinking, while the share of those with some postsecondary education has been increasing. This is true for both men and women, and given current levels of educational attainment, this shift will continue. Currently, just under half of men aged 65 and older have less than a high school education, while less than 10 per cent have a university degree. A study conducted in 2003 found that over 80 per cent of Canadians over the age of 65 had prose literacy levels considered below the desired threshold for coping well in a complex knowledge society, as compared to roughly 40 per cent of those aged 16 to 45, and approximately 45 per cent of those aged 46 to 55.  There were similar levels of low numeracy. Again, the literacy and numeracy levels of older adults are likely to increase in the future, based on current educational trends.[33] 

Information and computer technology has become increasingly important as a means of communicating and accessing information. Among seniors, home access to personal computers and to the internet has been steadily increasing, although rates of home access are still much lower than for younger age groups. Senior men are more likely than senior women to use the internet or e-mail, and higher levels of education are associated with a greater propensity to use information or computer technology. Seniors tend to be much less comfortable than younger users with installing or upgrading computer software, but most feel that their computer skills meet their current needs.[34]

 

Labour Force Participation

Approximately one-quarter of Canada’s labour force participants are age 50 or older. While labour force participation does decline with age, in 2004 there were just under 300,000 Canadians aged 65 or older in the labour force.[35]  

Labour force participation by older persons has been in flux over the past 30 years. While rates of participation for older men fell between the mid-70s and mid-90s, between 1996 and 2004, the rates of participation for older men increased steadily and significantly, both for those aged 55 to 65 and those aged 65 and older.[36] While labour force participation rates for older women continue to be significantly lower than those for men, they have been steadily increasing since the 1970s. In 2004, the participation rate for women aged 55 to 64 was 49 per cent, and for women age 65 and older, it was 11 per cent.[37] For both men and women, those with a university education are more likely to remain in the labour force as they age: this is particularly true for those aged 65 and older.  

With changes in occupational structures, such as the rise in non-standard work and the decline in the number of workers covered by registered pension plans,[38] surveys indicate that the proportion of Canadians who wish to work past age 65 or as long as their health enables them to work have continued to grow: in 2003, 26 per cent of those contacted by a Decima poll expressed this view.[39]

A significant and stable proportion of older workers are engaged in part-time work. Over one-third of working men over the age of 65 work part-time hours, while about ten per cent of those between the age of 55 and 64 do so. For women over age 65 in the labour force, almost two-thirds are engaged in part-time work, while about one-third of those between the ages of 55 and 64 are.[40] Overall, older persons are considerably more likely than younger ones to be engaged in part-time work. They are also more likely to be temporarily employed or self-employed. The Report of the Expert Panel on Older Workers stated that, 

A large proportion of older workers have non-standard forms of employment. These types of work arrangements can afford older individuals a significant degree of flexibility in their lives. Older workers can better manage the balance between work and family, and retired workers can re-enter the labour force, participate at a level they choose, supplement their retirement income and be involved in meaningful work. 

Yet the growth in part-time employment could also reflect lack of full-time work opportunities and part-time or other non-standard jobs may not always be the first choice of older workers… While non-standard employment offers older workers the opportunity for increased choice and flexibility in how they participate in the labour market, many wish to contribute and be productive through full-time employment. [41]

While older workers generally fare well in the work force, some older workers are vulnerable. Among unemployed older workers, a high proportion of those aged 55 to 64 lose their jobs involuntarily, and once unemployed, older workers tend to stay unemployed longer than average. The incidence of long-term unemployment tends to increase with age.[42]

There are a number of other challenges facing some older workers. For example, they may be concentrated in declining industries; they may have difficulty accessing training and education; and they can face high costs of adjusting when they experience a job loss (for example, the costs of relocation).[43]

Older workers may also face a range of negative attitudes from employers or potential employers that may make it more difficult for them to find or retain work. In its report on its consultations on discrimination against older persons because of age, the OHRC reported that: 

The input received on workplace age discrimination served to confirm the problems identified in the Commission’s Discussion Paper. In particular, many reported that stereotypes and negative attitudes towards older workers (starting as early as age 45) are commonplace in the workplace. This includes assumptions that older workers are less ambitious and hardworking, less dynamic and unable to learn new things. People reported being denied training opportunities and opportunities for advancement and being terminated because of age. Others recounted the difficulties they had in finding employment due to their age…Many people agreed that older workers bear the brunt of workplace reorganization and downsizing.[44]

 

Income Security

In terms of income security, the financial situation of Canadian seniors has improved significantly over the past 25 years, with their average before-tax income increasing by close to 25 per cent over that time frame, and rates of low-income dropping significantly, regardless of what measure of low-income is adopted. This is true for all groups of older adults, whether male or female, or single or married.[45] However, disparities remain when groups of older adults are compared, and some have benefited more than others from the increase in income.  

In 2003, the rate of low-income among seniors was 15 per cent, if measured based on the Low Income Cutoff before taxes, or approximately seven per cent, if measured based on the Low Income Cutoff after taxes.[46] Unattached seniors were much more likely to be low-income than married couples.  The highest rate of low income, if using the Low Income Cutoff before taxes, is that among unattached women at just under 19 per cent. Because of the impact of historic gender roles, many senior women are dependent on their spouses for income security, and widowhood may result in a slide into low-income.[47] The rate of low-income among older adults is now lower in Canada than in most other industrialized countries, including Sweden, the United States, and Britain.[48]  

The wealth of seniors has also increased over the past 25 years. In 1999, the median wealth of a family headed by a person aged 65 or older was $126,000. Approximately three-quarters of older adults aged 65 to 74 reside in their own homes and most of these own their homes mortgage-free. Rates of home ownership decline for those aged 75 and older.[49] 

A key factor in the increase in incomes for seniors has been the maturation of the Canada Pension Plan and the creation of various income support programs for older adults. CPP/QPP payments now make up approximately 20 per cent of the income of older adults. As well, over 95 per cent of seniors receive income from Old Age Security, Guaranteed Income Supplement or Spouses Allowance. Seniors have also benefited significantly from improvements in private pension plan coverage in the post-war years. In 2003, close to 70 per cent of men aged 65 and older, and just over half of all women were in receipt of income from a private pension plan.[50]  

However, as noted above, membership in registered pension plans is declining, indicating that in future, older adults may be less financially secure.[51]  Further, not all seniors have access to these benefits. Immigrant seniors, for example, cannot access Old Age Security until they have been resident in Canada for 10 years, a policy that has been identified as having a significant impact on the financial and psychological security of immigrant seniors.[52]

Statistics Canada figures from 2008 indicate that recent economic upheavals in Canada may be having a significant effect on the income security of seniors, who may be heavily reliant on income from investments. Between 2007 and 2008, the number of seniors living below the after-tax Low Income Cutoff increased by 18 per cent – the most substantial increase for any age group.[53]

 

The Living Environments of Older Adults

As with all of us, the living environments of older adults significantly shape their overall well-being. A living environment is not just a physical residence, but a network of supports and relationships, and it exists as part of a larger community. In considering the effects of a particular living environment on older adults, one must consider not only the attributes of the physical dwelling, but how well it provides the older adult with security, access to necessary supports and services, and the opportunity to remain engaged with and part of the larger community.  

Not all older adults require specialized supports in order to retain their physical, psychological and emotional security, exercise their autonomy and live full lives, but for those who do, the opportunities that are presented by their environment to access informal or formal supports are crucial to their well-being. The quality of a living environment therefore cannot be assessed in isolation from issues surrounding the availability of supports. 

Due to the health and activity limitations that are associated with aging for many older adults, transportation options and the physical accessibility of the community are crucial. 

The key principle that has been enunciated for the living environments of older adults is that of aging in place. This reflects the expressed preferences of older adults. According to a recent survey, almost 80 per cent of Canadians surveyed believed that aging at home offers a better quality of life, citing greater comfort, independence and the opportunity to be closer to family. The older the survey respondents, the more strongly they expressed their preference to remain at home as they age.[54] Aging in place is also considered a more cost-effective approach to aging, since long-term care in an institutional setting is expensive to provide.[55] The principle of aging in place has been incorporated into all of the key Canadian policy documents related to older adults, including the National Framework on Aging (NFA), the OHRC’s report on human rights and older persons entitled A Time for Action, and the Final Report of the Special Senate Committee on Aging. However, in reality aging in place may often be more of an ideal than a lived practice. Not infrequently, older adults are compelled to change their living environments in order to obtain supports, find affordable housing or locate an accessible environment.[56] 

The living environments of older adults are diverse. Some key aspects of the living environments of older adults are briefly highlighted below. 

Geography and Aging: Overall, Canada is increasingly urban. In 2001, almost two-thirds of Canadians lived in large urban centres. At that time, approximately 70 per cent of those over age 65 lived in an urban centre with at least 50,000 inhabitants. About 23 per cent of Canada’s seniors live in rural areas. Most of these seniors, however, are living in rural areas that are fairly closely integrated with a nearby metropolitan area.[57]

Older adults who live in northern, rural or remote communities face special challenges. For example, lack of transportation may create significant difficulties for those older persons who are no longer able to drive, as many of these communities have no public transportation, and necessary services may not be located nearby. Older adults may become isolated, and their physical, mental and emotional well-being may be put at risk.[58]     

Older Adults in Privately Owned Homes: The vast majority of older adults live in private households – about 93 per cent of those age 65 and older do so.[59] In most cases, older adults own their own homes rather than renting, and live in houses rather than rental apartments. As noted above, the preference of the vast majority of older adults is to continue to live in their own homes as they age; however, they may face a number of challenges to doing so. 

  • Most homes do not have the accessibility features necessary for those who develop significant mobility disabilities. There are some programs through the Canada Mortgage and Housing Corporation that address this on a limited basis.[60]
  • Although older adults are disproportionately home owners compared to younger Canadians, because most live on a fixed income they may be “house rich but cash poor” and face financial barriers to remaining in their homes. The cost of major home repairs or significant property tax increases may make their homes unaffordable. For this reason, older adults may look to financial instruments such as reverse mortgages to meet their financial needs.[61]
  • Further, home care supports are often expensive or difficult to access. The Home Care and Community Services Act, 1994 sets out a framework for the delivery of in-home services in Ontario.[62] As is described in greater length in Chapter VII of this Interim Report, while the Act provides for community support services, home-making services and personal support services, in practice the requirements for eligibility for such services are not transparent, and access is dependent on funding envelopes.[63] Lack of access to formal or informal supports for activities of daily living such as shopping, cleaning or cooking may make it impossible for older adults to remain at home. The Special Senate Committee on Aging suggested that the government develop a national home care program, as well as provide better supports to informal caregivers, such as respite care or expanded compassionate care benefits.[64]                                   

Older Adults and Rental Housing: In 2006, just over one-fifth of individuals between the ages of 65 and 74 were renters, as were 28 per cent of those aged 75 and older. Some older adults have been renters most or all of their lives. For former home-owners, widowhood is frequently the impetus behind a transition from home ownership to rental housing. 

Older adults living in rental housing may face difficulties and barriers due to minimum income requirements. As well, landlords may be reluctant to rent to older persons for fear that they will become disabled – and therefore a “burden” – in the future. Where older adults do need accommodations that require modifications to their unit or the apartment building, landlords may be reluctant to undertake the expense and may try to encourage the tenant to leave.[65]

Over half of renters between the ages of 65 and 74 and close to two-thirds of those aged 75 and over experience housing affordability problems.  Older adults who rent are typically less financially well-off than other older adults, and are typically widows who live alone. Older adults represent one-quarter of the applicants for social housing in Ontario.[66] 

Social housing is an important program for many vulnerable citizens, including older adults. Social housing in Ontario is delivered through a complex network of services and providers. Social housing providers include private, cooperative and municipal non-profit corporations, as well as local housing corporations. Funding may come from the federal, provincial or municipal governments. Social housing may take the form of affordable housing units, non-profit housing, co-operative housing with rent-geared-to-income, and supportive housing that provides personal support and homemaking services for the frail elderly and persons with various types of disabilities in a community residential setting.[67]

Provisions for seniors’ social housing are generally found under municipal by-laws and policies. Many municipalities make provision for specialized social housing for low-income seniors. For example, the City of Kingston has eight social housing projects that house either “seniors” only, or a combination of older adults and persons with disabilities. Kingston has a “cascading” admissions policy for its seniors housing: persons aged 65 and older are prioritized on its waiting list, followed by those aged 60 and older, and then those aged 55 and older.[68] The City of Toronto operates over 19,000 seniors-only social housing units (including those which are rent-geared-to-income and market rents in non-profit, municipal or cooperative housing).[69] The City of Toronto has established aged 59 as the minimum age to qualify for housing. Peel Region has 32 buildings dedicated to housing for persons aged 65 and older, whether rent-geared to income, market rent or subsidized housing.[70]

“Retirement Residences”: An increasing number of older Ontarians live in “retirement residences”, or “care homes” as they are termed under the Residential Tenancies Act. It is estimated that there are over 700 homes providing services to approximately 40,000 older Ontarians.[71] The services and supports provided by retirement homes range widely. These homes may be very large or very small. Some offer only minimal assistive services while others essentially operate as private long-term care facilities.[72] Concerns have been expressed that the retirement home sector is evolving towards a private sector parallel to long-term care homes, rather than providing a much-needed “middle option” in a spectrum of supports for older persons.[73]

Until recently, retirement homes in Ontario have been regulated mainly through the Residential Tenancies Act (RTA). The RTA by and large requires retirement homes to meet the same standards as other types of residential tenancies, but with some significant exceptions with regard to information for tenants, rent increases and evictions.[74] The lack of a legislated framework regulating the care portion of retirement home living has been the source of considerable concern and criticism, particularly given the shortage of long-term care spaces in Ontario and the fact that in some cases retirement homes are operating as “bootleg long-term care homes” with locked-in wards servicing high-need patients.[75]                                                 

In 2010, the government of Ontario introduced the Retirement Homes Act, 2010,[76] which sets out certain minimum standards for the care and safety of residents, and includes a Resident’s Bill of Rights. The statute regulates the retirement homes industry through a third-party regulatory model. The Retirement Homes Regulatory Authority is given the authority to issue or refuse licenses to retirement homes, or to impose conditions on licenses that are issued. The Authority has the power to appoint inspectors to ensure that licensees meet the requirements of the Act, and can receive and review complaints regarding contraventions of the Act by licensees. The Authority also has the power to make orders under the Act. While the government may appoint members of the board of directors of the Authority, the government may not appoint a majority of the members of the board. The majority of the directors shall be elected by the other members of the board.   

Long Term Care: As noted above, the vast majority of older adults – 93 per cent – live in private households. Only seven per cent live in congregate settings such as nursing homes or hospitals. The likelihood of institutional living increases with age: approximately one-third of those over age 85 do so. Women aged 85 and older are significantly more likely than men aged 85 and older to live in an institutional setting. This is most likely because, as is noted below, gender differences in life expectancy together with the tendency for women to marry men who are older than themselves mean that women are more likely to outlive their spouses and to find themselves alone.[77] 

A number of groups have expressed concerns about the lack of appropriate long-term care services for their specific needs. For example, the cultural, linguistic or religious needs of older persons may not be adequately met through existing facilities. LGBT older adults may find themselves forced back into the closet through the lack of appropriate services and facilities. Deaf Canadians have raised the lack of TTY systems and lack of visual alarms in bedrooms and bathrooms in some long-term care homes, as placing the safety of Deaf older adults at risk and excluding them in their own living spaces. The Alzheimer’s’ Society has raised concerns about the lack of specific treatments and services for persons with Alzheimer’s’ Disease or related conditions. This is particularly problematic given that persons with dementia make up a very significant proportion of those living in long-term care facilities.[78]

ACE has consistently raised a number of grave systemic issues facing older persons in long-term care, including “first available bed” policies that may place older adults in inadequate or inappropriate facilities; improper admission contracts; questionable policies on detention and use of restraints; and a lack of accessible and effective complaints procedures, which may leave older adults vulnerable to abuse and mistreatment in their homes.[79] 

The regulation of the long-term care sector in Ontario is currently in transition. As of July 1, 2010, the Long Term Care Homes Act, 2007 (LTCHA)[80] came into effect, replacing three statutes that previously regulated the sector in a patchwork fashion. The LTCHA provides a comprehensive scheme, covering licensing and funding of long-term care homes, admission of residents, standards for appropriate service provision, qualifications for staff, provision of information to residents, resident and family councils, the prevention of abuse and neglect, and complaints, inspections and enforcement. As the LTCHA is so new, it will take some time to evaluate its effectiveness in ensuring that long-term care homes provide safe, dignified and comfortable homes for their residents. 

 

Family, Relationships and Caring

Older adults are no different from other human beings: their relationships are central to their lives, and the extent and quality of their relationships will significantly influence their overall quality of life. 

Inadequate relationship support is associated not only with an increase in mortality, morbidity and psychological distress but a decrease in overall general health and well being. Disruption of personal ties, loneliness and conflictual interactions are major sources of stress, while supportive social connections and intimate relations are vital sources of emotional strength.[81]  

Social interaction has a positive effect on both physical and mental health. Several studies have found that people with weak social ties are at greater risk of death, even when age, physical limitations and illness, and socio-economic status are taken into account.[82] Older adults, like others, report that loneliness, isolation and the loss of loved ones have a major negative effect on quality of life.[83] The Alzheimer’s Society reports that social interaction may have a protective effect against the disease, while the Canadian Coalition for Seniors’ Mental Health has stated that:

Social support networks are particularly important for seniors as social isolation is known to be linked to depression and loss of autonomy. Community or institutional based programs that provide social support to seniors help to ensure maintenance of mental health.[84] 

Older adults who are not socially connected are less likely to hear about available supports and services, and so are less likely to benefit from them. 

Some older adults are more likely than others to experience social exclusion: these include those who live in low-income, those who are newcomers, those with disabilities, women, and those who are the oldest of the old. The Senate Special Committee on Ageing recommended that the federal government invest in research on the social networks of older adults, and that it support organizations that provide social supports for older adults.[85]

Relationships and Living Arrangements: As individuals age, the likelihood that they will be living alone increases. This is particularly true for women.  Just over one-fifth of older adults age 65 to 74 were living alone in 2001, while just over one-third of those aged 85 and older were living alone. Because of differences in life expectancy between men and women, and the tendency for men to marry younger women, the patterns differ between the sexes. For example, only 18 per cent of men aged 75 to 84 were living alone in 2001, while this was true for 43 per cent of women in this age group.[86] 

In general, the most common living arrangement for older adults is living with a spouse, although the frequency varies by gender and declines with age. Among men aged 85 and older, this was the most common living arrangement – 38 per cent of these men were living with a spouse – while it was the least frequent living arrangement for women of the same age, including only seven per cent of these women.[87] The numbers of older adults who have never married or who are divorced is increasing. For example, in 1981, only four per cent of women age 55 to 64 were divorced, but by 2001, this had increased to 11 per cent. This points to some potentially significant changes in the living arrangements of older adults in future years. 

Most older adults have children: in 2001, fewer than 10 per cent of all those age 65 to 74 had no children. The average number of children for older adults is decreasing, however, as fertility rates decline. A significant proportion of older adults live with their children or grandchildren: just over 17 per cent in 2001. About four per cent of Canadians live in multi-generational households.[88]

Older adults, like younger Canadians, generally report having friends, including close friends. However, the likelihood of having no close friends, or no friends at all, increases with age. For example, of older adults age 75 and older, 18 per cent reported having no close friends, compared to five per cent of those age 25 to 54. This may be partly because older adults are more likely to lose their friends to death, but it may also be attributed to the fact that older adults are less likely than younger ones to have opportunities to meet any new friends. For example, those aged 75 and older are the most likely of any age group to say that they have not met any new people in the last month (82 per cent).[89] However, older adults are more likely than younger ones to see or speak regularly to relatives (other than spouses and children) and to know and have relationships with their neighbours.[90]

Caregiving and Supports: Where older adults become frail or disabled, their relationships with family and friends can make a significant difference to their ability to remain active, to continue to live in their home communities, and to their fundamental health and well-being. For example, through continuing powers of attorney under the Substitute Decisions Act, older adults may identify people that they trust to act as substitute decision-makers for them on issues related to property or personal care, should they lose legal capacity. Similarly, under the Health Care Consent Act, family members may be charged with making medical decisions for older adults who are unable to make those decisions for themselves. The way in which these fundamental powers are exercised will profoundly shape the lives and well-being of those affected. In these ways, the relationships of older adults will affect their ability to participate and be included, their ability to maintain independence and autonomy, and their basic security. 

While older adults are often pictured as heavily dependent on loved ones for help with day-to-day tasks, statistics paint a more nuanced picture. Statistics Canada has noted that “Seniors are not the only, and maybe not even the principal, recipients of social support in society.”[91] Older adults in general are not more likely than younger persons to receive help from someone not living with them with domestic work, transportation or running errands, and are less likely than younger adults to receive emotional support, coaching or practical advice.  However, not surprisingly, those older adults who live alone are more likely to receive help with domestic work, transportation and errand running needs.  

Not surprisingly, older adults are more likely than younger ones to be receiving help (from any source) because of a long-term health problem. This is particularly notable for those over the age of 85: only 16 per cent of those aged 65 to 74 are receiving help because of a long-term health problem, while 60 per cent of those over 85 receive help for this reason. Older women are more likely than older men to require such help, particularly if they live alone.   About three-quarters of those receiving help because of a long-term health problem receive it, at least in part, from informal sources. As individuals age, they are more likely to receive some or all of their help from formal sources: approximately 60 per cent of those aged 85 and older receive part or all of their help from formal sources.[92]  

As populations age, one of the greatest challenges in health policy is to strike a balance among support for self-care (people looking after themselves), informal support (care from family members and friends) and formal care (health and social services). Formal care includes both primary health care (delivered mostly at the community level) and institutional care (either in hospitals or nursing homes). While it is clear that most of the care individuals need is provided by themselves or their informal caregivers, most countries allot their financial resources inversely, i.e., the greatest share of expenditure is on institutional care.[93] 

Many individuals and organizations have expressed concerns about shortfalls in supports for informal caregivers. In both A Time for Action, its report on human rights and older adults, and in The Cost of Caring, its report on human rights and family caregivers, the OHRC has indicated concern with the impact on older persons and their families of a lack of supports for informal caregiving,. The OHRC has recommended that government provide enhanced supports for older adults and those who are providing them with informal care.[94] The recent report of the Senate Special Committee on Aging also made several recommendations for government action on this issue.[95] 

It is often overlooked that older adults make significant contributions to their communities through the care they provide in their relationships with family and friends, whether it be as primary caregivers for ill or disabled family members, the familial supports they provide as grandparents, or the wisdom, advice and experience they share with those with whom they are close. A significant proportion of older adults provide help and care to others. For older adults under the age of 75, more report providing help to others than receiving such help. Younger older adults are more likely than those over age 75 to provide help with such things as domestic work, home maintenance or outdoor work (about a quarter of those age 65 to 74 report providing such assistance to someone not living with them), and to help with child care (22 per cent of those age 65 to 74). While those over age 75 were more likely to receive help with domestic work, errands and transportation than to provide it, they were more likely to provide emotional support, and teaching and coaching.[96] The United Nations, through the Madrid International Plan of Action on Ageing, has urged greater recognition, respect and support for the contributions older adults make through their caring roles.[97] 

Domestic violence: Family violence makes up approximately one-third of the incidents of violent victimization of older adults. Older women are considerably more likely than older men to be the victims of family violence. Of older persons who were the victim of a violent incident in 2003, 40 per cent of older women were victimized by a family member, as compared to 20 per cent of older men. In family violence, most often the accused were male adult children (33 percent) and spouses (30 per cent). Another 15 per cent were male members of the extended family. Most family related assaults took place at home, between people who were sharing a residence. 

 

Participation in the Community

Older adults under the age of 75 are just as likely as younger adults to be a member of a voluntary organization or association (at a participation rate of just over half), and to participate in group activities at least once a week. The likelihood of participation was slightly lower for those over age 75. Older adults are more likely than younger persons to be involved in religious-affiliated organizations, or in fraternal organizations and service clubs. However, older adults are less likely than younger adults to be members of or participants in sports and recreation organizations. Younger persons are also more likely to participate in school, neighbourhood, civic or community organizations. Likelihood of participating in organizations increases with education levels.[98] 

About 45 per cent of all Canadians did some volunteer work during 2004. Older adults are slightly less likely to volunteer (39 per cent of those aged 65 to 74 volunteered in 2004), but when they do, they tend to contribute more hours. For example, volunteers age 65 to 74 contributed 250 hours on average in 2004, approximately 100 more hours than those contributed by adults age 25 to 54. The most significant barrier to volunteering for older adults was health or physical limitations: over 70 per cent of those aged 75 and older gave this as their reason for not volunteering.[99]  

Older adults are more likely to vote, at all levels of government, than other age groups. In 2003, close to 90 per cent of adults age 65 and older reported voting in the federal election, as compared to 70 per cent of 25 to 54 year olds. They are significantly more likely to be regular voters than younger adults. They are, however, less likely than younger adults to sign a petition, boycott or choose a product for ethical reasons, or to participate in a demonstration or march.[100] This may reflect changes associated with life stages, or it may reflect generational differences in modes of political participation.

 

2.                  Intersecting Identities: Age and Compounded Disadvantage
 

In keeping with the recognition that older adults are not a homogenous group, it is important to give thoughtful consideration to the ways in which the experience of aging may differ depending on an individual’s gender, sexual orientation, racialization, Aboriginal identity, health impairment or disability, place of residence, socio-economic status, citizenship or immigration status, or other factors. This section is intended to provide a starting point for consideration of the practical effect of these different identities and life histories on the needs and circumstances of older adults. 

Gender and Aging

Most older adults are women, and the older the age group examined, the truer this is. In 2005, while women made up 52 per cent of those between the ages of 65 and 69, they made up 75 per cent of those aged 90 and older.[101]  Although there is some expectation that the size of this discrepancy will decline as differences in life expectancies between men and women narrow, for now aging is, to a significant degree, a “women’s issue”. As one scholar has argued,  

It is thus imperative that scholars examine and expose the legal framework defining the personal, health and income security of their oldest citizens in light of the reality that most elderly persons, as well as those who care for them, are women. Reform of elder law and policy must take account of this reality and assure that such “reform” does not exacerbate existing discrimination against and injustice towards women.[102] 

Older men and women differ on a wide range of measurements.  Both because of longer life expectancies, and because women tend to marry older men, women are more likely than men to be widowed. This has a number of implications for income (particularly since women who are now older were less likely to participate in the labour force and therefore to have their own pensions and control their own money than younger women now are),[103] for caregiving (women, as they age, are less likely to have a spouse to provide for their care needs) and for living arrangements (such that older women are more likely than men to reside in congregate settings). Older women are also likely to have lower levels of educational attainment than their male contemporaries (another factor that will differ for younger generations). Since education levels have a close relationship with a number of indicators of wellbeing, such as health and social isolation, this is significant.[104]

While older persons in general are the subject of negative portrayals in the media, this is often particularly problematic for women. The United Nations Madrid International Plan of Action on Ageing notes that:

Women are particularly affected by misleading and negative stereotypes: instead of being portrayed in ways that reflect their contributions, strengths, resourcefulness and humanity, they are often depicted as weak and dependent. This reinforces exclusionary practices at the local and national levels. [105]

Because of these realities, policy frameworks on aging often recommend that legislators and policy developers pay specific attention to the ways in which gender influences the experiences and circumstances of older persons.[106]

 

Immigration and Older Adults

A very significant proportion of older adults are immigrants. In 2001, over one-quarter of persons aged 65 to 84 were immigrants. Most, however, arrived in Canada when they were young, and have lived in Canada for decades. Less than ten per cent of immigrant older adults in 2001 had arrived in Canada within the previous ten years.  In any given year, persons aged over 65 make up between two and four per cent of immigrants and refugees arriving in Canada.[107]  The number of recent immigrant seniors is therefore small. However, this is a group whose needs are important to take into account, as their circumstances are likely to be significantly more precarious than those of older adult immigrants who have had a lengthy residence in Canada. They will have less access to income support programs, may be dependent on their relatives to maintain their legal status in the country, may not know an official language, and are less likely to have significant social networks on which they can rely.[108]  

The changes in Canada’s immigration patterns mean that immigrant seniors who are long-time residents of Canada are mostly likely to have come from Western Europe (54 per cent, in 2001). Older adults whose birth place was other than Canada or Western Europe are still a small minority of the total population of older adults.[109] 

 

Language

Almost all older adults can speak one of Canada’s official languages. In 2001, only 4.5 per cent of older adults could speak neither English nor French. However, 13.5 per cent of those between the ages of 65 and 74 used a non-official language at home.[110]  

There are approximately 160,000 francophone seniors in Ontario, out of a total Franco-Ontarian population of 576,000.[111] The Franco-Ontarian population is therefore somewhat older than the Ontario population as a whole. The proportion of seniors who are Francophones is higher in Northeastern and Eastern Ontario, as with the Francophone population as a whole. 

Francophones aged 65 and older tend to have a higher rate of language retention (assessed on the basis of the language spoken at home for persons whose mother tongue is French), although language retention is decreasing among seniors, as among the population of Francophones as a whole.[112] 

Francophones experience particular barriers in accessing government services, despite the guarantees of the French Language Services Act. The LCO was informed that:

l’un des obstacles à l’accès au système judiciaire pour la population de langue française (576 000 personnes de langue première français en Ontario) et en particulier pour les aînés (environ 160 000)  est la faible disponibilité des services en français de qualité équivalente à ceux dispensés en anglais. La  Loi stipule que les francophones on le droit de se faire servir en français dans le domaine de la Justice, mais malgré les efforts indéniables du Ministère du Procureur général de l’Ontario en ce sens (Institut linguistique par exemple, progrès au sein de la Police provinciale de l’Ontario), il y a beaucoup de travail à faire, et peut-être des outils « créatifs » à développer pour atteindre l’objectif de parité de services.[113]

 

Racialized Older Adults 

There is relatively little information available regarding older adults who are racialized. Ethno-gerontology, which studies the influence of race, ethnicity, national origin and culture on individual and population aging, is a relatively new field of study.[114] Racialized persons make up an increasing share of the older adult population. Between 1981 and 2001, the share of older adults who were “visible minorities” within the definition of the federal Employment Equity Act increased from two per cent to seven per cent. The largest share of this group were Chinese Canadians (39 per cent), followed by just over 20 per cent who were South Asian Canadians, and 13 per cent African Canadians.[115] The majority of these older adults live in large urban areas, which has some significant implications for the experience of aging. 

Racialized older adults are more likely than non-racialized older adults to experience low income, particularly if they are female, with 25 per cent of older racialized women falling below the low-income cutoff, according to Statistics Canada figures.[116]

In its public consultation on human rights and older persons, the OHRC heard concerns regarding the manner in which service providers currently address the needs of various groups of older adults in terms of respecting the cultural and religious needs of some older persons. The OHRC indicated that service providers in all sectors must respect the identity and dignity of all persons and be sensitive to the diverse needs of older persons based on culture, religion, race or ethnicity.[117]

In initial consultation meetings regarding this project, the LCO heard that persons from some racialized communities may experience discrimination or racism in the receipt of services, and that the experience of discrimination over the life-course may make some groups of racialized older adults more hesitant to demand their rights or to seek help.[118]

 

Aboriginal People

Due to higher fertility and birth rates, the Aboriginal population in Canada is younger than the non-aboriginal population. In 2006, Aboriginal older adults made up five per cent of the Aboriginal population, or just fewer than 60,000 people. This may not, however, include all persons identifying as Aboriginal within urban areas. It is well-documented that Aboriginal peoples in general have lower health statuses, socio-economic status and literacy rates than the general Canadian population, as well as shorter life spans. The majority of First Nations and Inuit older adults have experienced unhealthy living conditions and poorer health for most of their lives, as compared to non-Aboriginal Canadians. Aboriginal peoples suffer from higher rates of chronic diseases such as diabetes, asthma and heart disease.[119] 

It is important to note that among Aboriginal individuals, older adults form the highest proportion of those who know and speak their Aboriginal language. Aboriginal older adults who speak an Aboriginal language fluently or well are the most likely to consider both spirituality and traditional culture important. As a result, Aboriginal older adults may constitute the most important link in sharing knowledge of traditions and language with younger generations.[120] 

Many Aboriginal older adults will have been significantly affected by residential schools experiences. Over 40 per cent of First Nations adults over the age of 60 and close to half of those aged 50 to 59 attended residential schools. It has been noted that, as a result of the residential schools experience, Aboriginal older adults are particularly at risk for low self-esteem and increased dependence resulting from devaluation of their cultures and loss of traditional ways of life. Residential school survivors may experience long-term physical, psychological and emotional effects of their experiences.[121]

 

Sexual Orientation and Gender Identity

There is a dearth of information about lesbian, gay, bisexual, transgendered, and transsexual (LGBT) older adults. The lives of LGBT older adults have been shaped by high historical levels of stigma, discrimination and marginalization, and many LGBT older adults will never have felt safe to publicly disclose their sexual orientation. As well, ageism within the LGBT community means that most organizations, programs and space have been geared towards younger persons. LGBT older adults are therefore largely invisible both in the older adult community and in the LGBT community, and may have significant difficulty in accessing safe and appropriate supports and services.[122] 

 

Health, Activity Limitations and Disability

For most individuals, aging is associated with a decline in general health, and the onset of various types of activity limitations. However, it is important not to exaggerate the extent of health limitations among older adults. While self-perceived health declines with age, 37 per cent of persons aged 65 years and older considered themselves in very good or excellent health in 2003, as compared to 63 per cent of those aged 25 to 54.[123]   

The life expectancy at birth for a Canadian born in 2003 was 80 years. Most of that life expectancy is likely to be spent in good health. In 2001, a 65 year old man could expect another 12.7 years of life in good health; the figure for females was 14.4 years. 

Some chronic conditions disproportionately affect older adults. Arthritis or rheumatism is the most common of these conditions, affecting just over half of those aged 75 and older. Forty per cent of those over age 65 report living with high blood pressure. As well, older adults are particularly affected by eye-related problems, such as cataracts and glaucoma. In 2003, about 70 per cent of persons over age 65 had some type of vision-related problem, but only 4 per cent had an uncorrected problem (a figure rising to 8 per cent for those over age 80). Alzheimer’s disease and other forms of dementia are relatively rare at any age, but the risk increases significantly with age, so that approximately two per cent of all those aged 65 and older have been diagnosed with one of these conditions, again with incidence highest among the oldest of the old.[124] 

Although older adults are more likely to have activity limitations than younger persons, most older adults do not have activity limitations. In 2003, one in ten older adults aged 75 and older and living in a private household required help with personal care (such as washing, dressing and eating), as compared to one in one hundred adults aged 25-54. About one-quarter of older adults aged 75 and older required some assistance with housework. Mobility limitations become particularly prevalent for the oldest of the old, with close to half of all those aged 85 and older unable to walk or requiring mechanical or human assistance to get around, as compared to less than 10 per cent of those aged 65 to 74.[125] 

Contrary to stereotypes, most older adults are in good mental health and have a positive psychological outlook. Levels of psychological distress are highest for those aged 25 to 64, and lowest for those aged 65-74, with those aged 55-64 and 75 and older scoring similarly. The relationship between age and measures of perceptions of well-being is similar, with older adults having higher levels of self-perceived well-being than those aged 25 to 54. [126]

As is discussed at greater length elsewhere in this Interim Report, because there is a correlation between increasing age, declining health and increased risk of impairment, age is sometimes used as a proxy for health and impairment. Age is considerably easier to measure than health or impairment. As is discussed at length in another of the LCO’s publications, defining disability is complex and controversial, and often requires extensive adjudication mechanisms.[127] This makes the use of age as a proxy appealing, but the very brief overview above of the complex relationship among aging, health and impairment indicates how problematic such a use can be, particularly when it operates to reinforce inaccurate stereotypes and perceptions of older persons as non-contributing burdens on society.   

Interestingly, despite the correlations among aging, health and impairment described above, and the parallels between ageism and ableism, there has been relatively little attention paid to the relationship between age and disability outside of the health care field. Disability advocates rarely focus on the experiences of old people with disabilities, while anti-ageist organizations often fail to address the experience of disability in this group. There is a paucity of academic writing theorizing the intersection of age and disability.  

It is important to acknowledge the two ways in which age and disability may intersect. Some persons are born with disabilities, or acquire them during adulthood and age with their disabilities. Others live without disabilities throughout childhood, youth and much of their adulthood, and acquire disabilities only as they enter old age. Members of these two groups will often have profoundly different life experiences, and will therefore experience their impairments quite differently. A person who is born non-hearing and who becomes part of the cultural Deaf community will have his or her social, educational and employment experiences significantly shaped by that fact. A person who is born hearing and acquires a hearing impairment in old age may have the same degree of hearing loss as a culturally Deaf person,  but will have been shaped by a different life experience that has affected social networks, self conceptions, and, frequently, access to education and employment. These two hypothetical individuals with similar impairments will require different types of services and supports in old age. The differences are highlighted by the identifying terminology distinguishing between the Deaf, deafened, or hard of hearing.  

Older persons may also be affected, not by the experience of disability per se, but by the perception that they will inevitably become disabled, and therefore will become a burden, or will be requesting expensive or administratively onerous accommodations or services.[128] The definition of disability in the Ontario Human Rights Code encompasses current disabilities, past disabilities and perceived disabilities, but does not explicitly address anticipated disabilities. However, in the Mercier case, the Supreme Court of Canada considered a situation where a person with a slight curvature of the spine, which caused no current impairment, was refused employment because the employer anticipated that, in the future, disability could or would result. The Court ruled that these facts fell within human rights protections for disability, stating that,   

[A] multi-dimensional approach that includes a socio-political dimension is particularly appropriate. By placing the emphasis on human dignity, respect, and the right to equality rather than a simple biomedical condition, this approach recognizes that the attitudes of society and its members often contribute to the idea or perception of a “handicap”. In fact, a person may have no limitations in everyday activities other than those created by prejudice and stereotypes.[129]

There are similarities in the ways in which older persons and persons with disabilities are situated in society, particularly as both groups are largely excluded from the labour market, and therefore experience structural dependency and are not considered “adults”.[130] Both groups, being associated with impaired bodies and incapacity, evoke fear of vulnerability and death, and therefore are subject to social distancing. Persons with disabilities and older persons frequently experience social and locational segregation, living in specialized residential institutions, an experience that some have characterized as a kind of “social death”.[131] 

However, there are some significant differences between the perceptions of younger persons with disabilities and those who acquire disabilities in old age. While impairment at birth or in youth is commonly characterized as aberrant, impairment and activity limitations in old age are commonly understood as “normal”, even a defining characteristic of this stage of life. As a result, older persons with impairments are often not viewed as “disabled” in the same way that younger persons with similar impairments are. Older persons may not be perceived as disabled unless they are unable to engage in the activities that a “normal” older person could. The onset of impairment, along with withdrawal from the workforce, may be the most important social markers of transition to “old age”.  Impairment in old age may therefore not have the same disruptive impact on identity that it has at earlier life stages.[132]  

Considerable advances have been made in both the disability and the older people’s movements in recent decades. Interestingly, however, older persons are under-represented in the disability movement, especially considering the broad experience and impact of disability on older persons, and persons with disabilities have also been marginalized in some new ways of thinking about old age. As one author notes,

There is, then, a sense in which the political strategy of the [disability] movement has sought to distance disability debates from negative associations with old age and dependency by emphasizing adult-centred values and issues. Similarly, older people’s movements and movements for the Third Age have advocated ‘active ageing’ as a way to distance their claims from the negative imagery of disability and dependency.

In this way, the strategy of both older people’s movements and disabled people’s movements has been to articulate claims for recognition of adult status and citizenship by distancing their struggles from negative associations with the other. These parallel claims may well be benefiting those at the margins of inclusion (i.e., younger disabled people and older adults in their fifties and sixties) by allowing them to liberate themselves from the imagery of frailty, dependence and burden so often attached to very old people with significant impairments.[133]

These strategies, however, run the risk of further marginalizing a very disadvantaged group: persons of advanced old age with significant impairments. 

The LCO, in conducting its project on the law as it affects disabilities, will employ an anti-ageist lens, and in conducting this project, will similarly bring an anti-ableist approach to bear in considering the experiences of older adults. 

 

Intersecting Identities and Compounded Disadvantage

In keeping with the recognition that older adults are not a homogeneous group, and will have different circumstances, resources, life experiences and intersecting identities, it is important to acknowledge that some older adults are more likely to face disadvantage than others, or may experience disadvantage in different ways. 

Older adults who have, throughout their life-course, been marginalized due to other aspects of their identity, carry the effects of that marginalization through into old age. For example, racialized or Aboriginal older adults who have faced direct and systemic discrimination in the labour force will, as a result, enter old age with lower savings, without private pension benefits, and with reduced Canada Pension Plan entitlements. Similarly, in the past, higher education was considered less important or less appropriate for women than for men. In old age, this may affect not only financial security, but may also affect the ability of women to effectively access information about their rights, act upon that information, and to enforce these rights.

The effects of lifelong marginalization may impact in subtle ways. Older lesbians, gays and bisexuals, for example, are more likely to have remained “closeted” as a survival strategy. This has a multitude of effects on the relationships of LGBT older adults.  As well, the adoption of a survival strategy of silence and invisibility can compound the effect of the invisibility often imposed on older adults by ageism, with the result that the needs, and even the very existence, of LBGT seniors may go unrecognized. For example, there is a dearth of appropriate programming for LGBT seniors.[134] 

Multiple identities may result in uniquely compounded disadvantage. Women with disabilities experience a much higher rate of abuse of all types than either non-disabled women or men with disabilities; however, women with disabilities may have fewer options than others for leaving abusive situations, for example, because women’s shelters and transition houses are often not accessible.[135] Sponsorship requirements for older immigrants may create power imbalances within family dynamics that can result in abuse and exploitation, which is compounded by the fact that language and cultural barriers may make it especially difficult for these older adults to report or escape abuse.[136]

Persons with some disabilities may experience some biological effects of aging at a different rate, or experience greater risk of developing additional disabilities. For example, persons with Down’s Syndrome are at a significantly higher risk of developing dementia symptoms associated with Alzheimer’s’ Disease. As well, persons with intellectual disabilities who have lived with their parents throughout their lives may, as they themselves reach the threshold of old age and their parents reach advanced old age or die, find themselves suddenly separated from their lifelong support systems and thrown into substantial insecurity in terms of their supports and living arrangements.[137]

Disadvantage may manifest differently rather than disproportionately in some circumstances. Elder abuse may take culturally specific forms, for example.[138] Older gay men may be particularly vulnerable to financial abuse or physical assault by younger sexual partners.[139]

Similar outcomes may have a different effect on individuals depending on identity and life-course. The principle of “ageing in place” recognizes the importance to all older adults of maintaining their place in their home communities. However, the principle will have different meaning or impact for some communities. For a person who has lived with a disability for many years and has built up a community support network, the disruption of that network through a move away from the community may have a profound effect. For an immigrant senior who faces language barriers and has distinct cultural values, the move from independent living into a long-term care setting may be particularly disruptive. For a First Nations senior who has lived all of his or her life in their First Nations community, the impact of being required, due to lack of appropriate supports, to move away from his or her community in old age, will be unique. Aboriginal communities that have a special and unique role and value for their elders also experience a reciprocal impact from losing their elders in this way. As well, for Aboriginal persons who lived through residential schools during their youth, re-institutionalization in old age may hold a special trauma.[140] 

 

D.     “Vulnerability”, Inequality, Risk and Older Adults

As is discussed at more length in Chapter IV of this Interim Report, older age has often been used as a proxy, both in law and in policy, for other qualities – often forms of disadvantage – such as low-income or impairment and disability. This tendency to use age as a proxy for certain types of disadvantage is connected to a fairly widely-held perception of older adults as being, as a group, in some way “vulnerable”, at heightened risk of a variety of negative outcomes, including low-income, abuse and exploitation or discrimination.  

The brief review in this Chapter of the circumstances of older adults reveals the complex relationship of age with many forms of disadvantage: “older adults”, however one defines them, are an extremely diverse group with a wide range of resources, capacities and outlooks. Not all older adults are poor, ill, disabled or otherwise disadvantaged.   

With this recognition, there has been something of a move away from the simple use of age as a marker for disadvantage. Instead, there have been efforts to identify sub-groups within the broader umbrella of “older adults” who are “frail” or “vulnerable”, and therefore in need of additional attention and protection through law and policy. 

Certainly, at least some older adults are at risk of significantly negative outcomes. To fail to acknowledge and address these heightened risks would be to exacerbate this disadvantage and to further marginalize these older adults. 

There is an unstated social expectation and responsibility to live up to that ideal [of “successful aging”], with those who do not or cannot being blamed for their failure. 

Ageism is also the perpetuation of the belief that individuals by themselves can achieve this “successful aging”, or that by individual effort and sufficient willpower they can undo all the social inequities that have led up to their later years or the inequities that arise in later life.[141]

[emphasis in the original]

As the material in this Chapter indicates, some older adults enter this stage of life with inadequate resources, financial or otherwise, to meet the challenges of aging. Some aspects of aging, such as the heightened likelihood of ill-health and disability and the inability to recoup financial losses, create greater risks of disadvantage for older adults. There are indeed some older adults who experience more negative outcomes, and have greater needs for supports and resources, than either younger persons or other older adults. Laws of general application that do not take into account the ways in which some older adults experience higher risks of negative outcomes may make it more difficult for older adults to access and enforce their rights. The challenge is to accurately identify who these older adults are, and to develop conceptual approaches to these needs that will not replicate the problems that became apparent when older adults as a whole were considered “frail” and “vulnerable”.

 

1.                  Is “Vulnerability” a Useful Concept for the Law as it Affects Older Adults?

As was briefly noted above, the concept of “vulnerability” has frequently been used to describe those older adults who are in need of heightened supports of protections. 

This concept has a freighted status in the law as it affects older adults, with ongoing debates about whether older adults, or some portion of older adults, should be considered as “vulnerable”. Given the recurrent policy tensions in the area of elder law between promoting the autonomy of older adults and protecting their safety and security, the concept of vulnerability has broad implications for this field.

The Merriam-Webster Dictionary defines “vulnerable” as “1) Capable of being wounded; susceptible to wounds 2) open to attack”. A person who is “vulnerable” is therefore at higher risk for some kind of injury or harm. The concept of vulnerability may suggest some kind of heightened obligation on the part of others to prevent or address potential harms, or some entitlement to additional protections. 

Reflecting assumptions about the weakness, frailty and dependence of older adults, the popular imagination, as well as the law, has often associated older age in general with “vulnerability”. Adult protection laws are a good example of this.[142] The particular vulnerability of older adults to low income was the motivation for the creation of the largely successful set of income security programs that address older adults. 

The concept of “vulnerability” and its association with old age is contentious. Assumptions that all older adults are vulnerable seem to draw on and perpetuate stereotypes of older adults that are belied by the many active, healthy and engaged older adults. This concern is strengthened by the tendency of discussions regarding older adults and vulnerability to focus on the area of legal capacity and decision-making, to the point where vulnerability and the lack of legal decisional capacity are frequently used as interchangeable concepts. The concept of vulnerability as applied to older adults tends to take on a pejorative aspect, rather than being seen as part of the human condition in general. There is a risk that vulnerability may be seen as inherent to the status of being an older person, rather than something that has roots in the life-courses and environments of some older persons. 

Furthermore, the association of older adults with vulnerability can be used to justify heavy-handed and paternalistic intervention in the lives of these individuals. As one author states: 

Resistance to the idea of vulnerability as key to a conceptually coherent category of “law and aging” is strong, and rooted in the idea that vulnerability = weakness and resistance to the presumption that age = loss of capacity. The fear is that legal theory focusing on personal vulnerability increases social vulnerability, the more significant source of harm, to the extent that it reinforces ageist presumptions of weakness and incapacity. Legal protection for the truly incapable, of whatever age, exists; and beyond that, older adults should be treated in law and otherwise like any other adult persons.[143]

Legal scholar Martha Fineman has suggested a reconceptualization of vulnerability, detached from specific subgroups (such as older adults or children), that is focused on vulnerability as at the heart of the human condition, a state that “arises from our embodiment, which carries with it the imminent or ever present possibility of harm, injury and misfortune.”[144] In this approach, vulnerability has institutional as well as individual aspects, and suggests a relationship of responsibility between the state and the individual:

While all human beings stand in a position of constant vulnerability, we are individually positioned differently. We have different forms of embodiment, and also are differently situated within webs of economic and institutional relationships. As a result, our vulnerabilities range in magnitude and potential at the individual level. Vulnerability, therefore, is both universal and particular; it is experienced uniquely by each of us. Important in regard to this particularity point is the fact that our individual experience of vulnerability varies according to the quality and quantity of resources we possess or can command. While society cannot eradicate our vulnerability, it can and does mediate, compensate, and lessen our vulnerability through programs, institutions, and structures. Therefore, a vulnerability analysis must consider both individual position and institutional relationships.[145]

While a shift in focus to state and institutional roles in addressing vulnerability may be helpful, it is important to acknowledge that state and institutional responses to perceived vulnerability on the part of older adults have in some cases been paternalistic, coercive and counterproductive. It has been argued that in some cases, such as mandatory reporting requirements for elder abuse, legal responses to vulnerability may exacerbate rather than reduce risk.[146] The legal reaction to the label of vulnerability may be a cause of valid concern, and it is important to question whether the response of the law to vulnerability has been appropriate, and the degree to which paternalistic or coercive responses are indeed necessary or desirable. 

The employment of an anti-ageist approach to the law, and the application of appropriate principles in designing laws, policies and programs for older adults may assist in preventing inappropriate or heavy-handed responses to vulnerability, but that leaves open the question of whether the concept of vulnerability remains a valid and useful one for the law as it affects older adults, despite the fact that inappropriate responses to vulnerability have been employed in the past, or whether new concepts and approaches are necessary. A consideration of equality-rights analysis and concepts of risk can add to our analysis.

 

2.                  Applying an Equality Analysis to Older Adults

Another approach to thinking about the ways and situations in which older adults may need additional attention or protection in law and policy is through the lens of an equality rights analysis. 

Constitutional and human rights guarantees of equality and non-discrimination for older adults and for other individuals and groups who may be marginalized or disadvantaged are discussed at some length in Chapter IV of this Interim Report. The point here is not so much to undertake a legal analysis as to underscore the fact that, as a society, we have recognized equality and non-discrimination as central values, as well as the reality that we not infrequently fall short of these values. 

It is difficult to define what we mean by “equality”, as is evidenced by the very complex jurisprudence under section 15 of the Charter. What is clear is that “equality” does not equal sameness: it is not a matter of “treating likes alike”. People are different, and those differences can matter. Part of ensuring equality is recognizing, and taking into account, the actual circumstances and characteristics of affected individuals and groups. Inequality may result from attributing and acting on differences where none exist (due to stereotyping, for example), but it may also result from ignoring or devaluing differences.[147] 

The discussion earlier in this Chapter points to some of the ways in which some older adults may differ from some other groups, such as the greater likelihood (increasing as age advances) of living in congregate settings, of living with certain types of impairments and disabilities, or of withdrawing from the paid workforce and living on a fixed income. Such differences, if unrecognized, may situate these older adults differently with respect to the law, and make it more difficult for them to access or benefit from the law. 

An equality rights analysis has the benefit of being a positive approach, in that it focuses on the ultimate purpose of interventions that target older adults or some older adults: increasing equality. That is, it concentrates attention on moving towards a positive outcome, rather than simply aiming to minimize a negative. Such a focus positions older adults as rights-bearers, rather than passive and fragile subjects of others’ interventions. In contrast to concepts of vulnerability, it does not have an inherent tendency to privilege concerns about the security of older adults over the preservation of independence and autonomy.

 

3.                  Older Adults and Heightened Risk

A flexible alternative to the use of “vulnerability” as a label to identify older adults who need additional supports or protections is to focus on indicators of heightened risk.  

Unlike the concept of vulnerability, the notion of heightened risk readily accommodates the recognition that the status of an individual will vary from situation to situation and over time: risk is a matter of degree and not an “all or nothing” state. As well, the concept of heightened risk focuses attention not only on the attributes of the individual but also on factors in an individual’s immediate or broader environment. That is, the concept of heightened risk accommodates a recognition of the societal factors that may lead to negative outcomes, and reduces the stigma for individuals who are identified in this way.[148] That is, all humans live with risk to some degree, and risk may be increased or decreased by the quality of the resources or assets available. Some older adults may have lesser or greater degrees of risk of negative outcomes than others: the task is to determine the factors or supports that will increase or decrease risk. This approach recognizes the diversity of the older adult population, avoids applying categories in a stigmatizing way as indicating qualities specific and inherent to older adults, and may assist in ensuring that programs and initiatives are targeted to those who are most in need. 

To identify sources of heightened risk for older adults is, however, by no means a simple endeavour. There may be a tendency to think of risk as associated with individual choices or conditions: for example, an individual who chooses to live on his or her own despite increasing levels of disability may be at greater risk of injury, or an individual who develops dementia may be at heightened risk for financial abuse. 

While there are individual elements to risk, risk must also be seen in its broader social context. An individual’s family and other relationships, living environments, or income sources and levels may either increase or decrease risk levels, depending on their quality and extent. To continue the example from the previous paragraph, while the development of health and activity limitations or disabilities may pose additional risks of negative outcomes for older adults, those risks are as much a result of societal failures to plan for, and include, persons with disabilities, as they are of the actual impairments. For example:

Living environments: The living environments of older adults may either increase or decrease their vulnerability, depending on their quality or on the supports available in them. Environments which are socially isolating, reduce autonomy, or do not provide basic physical or emotional security will increase risks for older adults. Independent and congregate living environments may either increase or decrease vulnerability, depending on their quality or appropriateness. However, it should be noted that there are unique risks associated with congregate environments in that such living environments, while providing important supports for older adults in need, may also reduce independence and control and may have the effect of socially isolating their residents. Residents of institutions will experience greater barriers than other older adults in making complaints regarding their circumstances and this is particularly true for those who live in locked-in wards.[149]

Family and Relationships: As was highlighted earlier, strong social relationship supports will increase the emotional, mental and physical well-being of older adults. Being able to contribute, practically or emotionally to the well-being of their loved ones allows older adults to continue to be, and to feel part of, their communities. Reciprocally, strong relationships can help maintain the ability of older adults to continue to live in the community and maintain independence and autonomy. They can also help to ensure that the rights of older adults are respected, whether they are living in the community or in congregate settings. Conversely, social isolation has an impact on health and well-being; it may also make older adults more vulnerable to abuse or exploitation. As individuals age, family members and friends may die or become less accessible. As well, negative societal attitudes towards older persons may make it more difficult to make new social bonds.  

Socio-economic status: Older adults who are financially secure will be more able to purchase necessary supports to maintain their health, participation and security, and to ensure that their rights are respected than will older adults who are not financially secure. Those older adults who are low-income, and have lower education and literacy levels may have fewer resources available to meet the challenges of aging, and may have more difficulty finding and accessing information and supports to address their needs.

These individual and societal factors will of course have shaped the life-courses of older adults: in some cases, heightened risk in old age may be a materialization of decisions and disadvantages experienced across childhood, youth and middle age. For example, as discussed earlier, persons who have experienced the effects of racism, sexism or other forms of discrimination throughout their lives are likely to enter old age with lower levels of literacy and education and less income security, placing them at a disadvantage in encountering the challenges of aging.  

The law may increase or decrease the levels of risk for older adults. For example, the legal regimes for continuing powers of attorney, or for safeguarding the security of those who live in congregate environments can either ensure that the rights of older adults are safeguarded, or leave them vulnerable to abuse or mistreatment. Laws of general application that do not take into account the needs of older adults may make it more difficult for older adults to uphold their rights.

 ocietal attitudes may also affect levels of risk. In this sense, it may be reasonable to suggest that older adults as whole have sources of risk distinct from other groups. While many older adults are healthy, economically secure, enjoy strong networks of social support, and are fully engaged in their communities, they are still vulnerable to the effects of ageism. The effects of discrimination, negative attitudes and social exclusion may result in greater risks for older adults. For example, as is discussed earlier in this Chapter, older adults may find it harder to locate and maintain employment due to age discrimination, leaving them at greater risk of income insecurity. This may be particularly true for those older adults who are racialized, new immigrants, LGBT or otherwise face unique attitudinal barriers. The biological changes often associated with aging, may result in a greater sense of physical vulnerability as bodies age and become more frail, as well as a greater risk of social isolation as family, friends and spouses age and die. These changes may leave older adults feeling less secure. It is important to acknowledge this, while also acknowledging that some older adults will experience this more than others, and that this common type of disadvantage is not sufficient to justify paternalistic intrusions into the lives of older adults in general.

Risks may combine or be compounded. For example, older women who are widowed may face higher levels of risk due to the combination of diminished financial security and gender-based stereotypes and disadvantages, particularly as they age and other social supports diminish.

A focus on “risk” or “heightened risk” therefore can give us a flexible way of understanding the dynamic contexts in which older adults live, and taking into account situational aspects of disadvantage for older adults. It does not position disadvantage as inherent to a particular older adult, but focuses attention on a range of factors, both internal and external, that may contribute to negative outcomes. 

While the concepts of (in)equality and risk bring different perspectives to the experiences of older adults, they are linked. To develop laws, programs and policies that aim to identify and ameliorate inequality, it will be necessary to identify those who are at greater risk of disadvantage and negative outcomes. 

 

4.                  Responding to Risk and Inequality Among Older Adults

Given the history of policy responses to older adults who are perceived as frail or incapable, caution must be applied in designing legal responses to inequality or heightened risk. The application of a set of principles that give due weight to the importance of autonomy, dignity and participation and inclusion, and do not focus solely on security, may assist in pointing towards responses which promote the equality and well-being of older adults, rather than further marginalizing them. 

In tailoring responses to risk, it is important to carefully consider exactly what  harms or negative outcomes individuals are at risk for. What is the negative outcome which may materialize? Most often we think of physical, emotional, sexual or financial abuse, but there may be other types of outcomes – such as poverty and homelessness, social isolation and exclusion, discrimination or crime. There are also degrees of harm, and responses should be tailored to the level of harm that may materialize.

In her reconceptualization of vulnerability, Fineman posits that the role of governments in addressing vulnerability is not to achieve invulnerability – an impossible task – but to increase resilience, which she defines as “having some means with which to address and confront misfortune”: 

[I]nstitutions collectively form systems that play an important role in lessening, ameliorating, and compensating for vulnerability. Together and independently they provide us with resources in the form of advantages or coping mechanisms that cushion us when we are facing misfortune, disaster, and violence. Cumulatively these assets provide individuals with resilience in the face of our shared vulnerability.[150]

She suggests that these assets or resources may take five forms: physical, human, social, ecological or environmental, and existential. This focus on increasing resilience, through the provision of resources, provides an alternative to one of the more the common responses to risk among older adults – increasing control over and decreasing choices for older adults.

 

E.      Implications: Developing a Contextual Approach to the Law as it Affects Older Adults

An anti-ageist approach to the law must begin with an understanding of and respect for the needs and circumstances of older adults. Margaret Hall has suggested that one way in which ageism may manifest in the law is the failure to “respond appropriately to the real needs of older persons as a group (understanding that older adults are extremely diverse), recognizing that older adults generally are situated differently from younger people and have different needs”.[151] This is as true for the implementation of the law as it is for the substance. 

This is not as simple as it sounds. The tendency among some to view older persons as a homogenous “other”, characterized mainly by frailty, dependence and proximity to death does a gross disservice to the complexity of the experience of aging and the richness of life experiences and perspectives among older persons. Law and policy frameworks that take as a starting point the idea of a standardized experience of aging will inevitably result in the over- or under-inclusion of many older adults who diverge from the imagined norm, and potentially result in injustice. This poses a significant challenge for those attempting to develop policies and programs for older persons. 

As well, as is discussed further in the following Chapter, when making generalizations about older adults, one must take great care that they are not tainted by stereotypes or negative assumptions about older persons. Laws and policies must be based on research and evidence, rather than assumptions. Demographic forces and societal trends mean that the nature of the older adult population is continually changing, and what is true of many older adults today may be true of only a small minority tomorrow.  

This Chapter has provided a brief overview of some of the contexts and characteristics of older adults. These may affect the interaction of older adults as a group, with the law. When developing, implementing and evaluating laws, those responsible should consider how these contexts and characteristics may affect how the laws impact and are accessed. Some examples of potential effects are included below. These are not meant to be comprehensive, but to provide examples of how law and policy-makers may begin to analyze the potential effects of their initiatives on older adults. 

While laws, programs and policies must recognize the capacities and individuality of older adults, this must be balanced by the provision of additional supports for those older adults who are particularly disadvantaged or at risk, in order to ensure that the law promotes dignity, autonomy, participation and security for all older adults. Different strategies may be required to ensure the autonomy and security of, for example, a 60 year old who is financially secure, healthy, and happily married, and for an 85 year old widow who has a mobility impairment and a diagnosis of dementia, whose children live several hours away, and who resides in a long-term care home.  

Life expectancy: While to note that older adults are likely to have less time remaining to them than younger adults is to state the obvious; nonetheless, the potential shortness of the time remaining to an older adult impacts, for example, on the effectiveness of implementation and enforcement mechanisms. 

The timeliness of legal redress is an important component of access to justice for everyone. Slow processes can discourage justice seekers, or can make remedies ineffective by the time they are obtained. For older adults of advanced age, however, timeliness may take on particularly urgency, as finite life spans may mean that redress that can only be acquired through lengthy procedures is essentially meaningless.[152] Of course, the older a person is, the greater the concern: the issue is less acute for an individual in his or her 60s than it is for someone in his or her 80s or 90s. 

Literacy and education levels: While levels of literacy and education among older adults will rise over time due to recent trends in education, the fact that at the current time older adults tend to have lower levels of literacy and education than younger Canadians has a significant impact on how many older adults access information and therefore on their ability to understand and enforce their rights.  This problem is exacerbated by shifts in how information about legal rights is provided:

Increasingly in many parts of Canada, public information on the law and government information about services and entitlements has been shifting from people sources to virtual sources such as the internet. The Special Senate Committee on Aging notes that a reliance on web-based information assumes a basic level of literacy and people’s ability to access the internet. Many older adults, particularly older women, do not have access to or cannot use the internet.[153]

This means that older men and women may be less aware of their legal rights, and have more difficulty accessing information about those rights. The legal system in general is increasingly complex:

Stakeholders and members of the public universally found Ontario’s legal system to be too expensive and too complicated for the vast majority of people. There is growing inequality between wealthy litigants and poorer litigants. The system is seen as intimidating to the average user and as catering to Ontario’s elite. Participants commented that the legal process was overly complex and that such complexity led to unnecessary and harmful delays.[154] 

It is worth noting as well that many of the laws that particularly affect older adults, such as those related to capacity, consent and substitute decision-making, are extremely complex, even in the best of circumstances. For example, ACE’s practitioner’s manual on long-term care and retirement homes runs to over 600 pages, while Toronto’s Rent-Geared-to-Income Guide explaining the law for staff and directors of cooperative and non-profit housing, is over 200 pages. Lack of knowledge about their rights may form a substantial barrier to access to the law for older adults.[155] 

Labour Force Participation: While this may change in the future, it is currently the case that most older adults have withdrawn from employment and are reliant on fixed incomes from pensions or government programs for their livelihood. As a result, most older adults have limited capacity to deal with significant unanticipated expenditures, which could tip them into spending the rest of their lifetimes in poverty or financial difficulties.  This means that for many older adults, spending the considerable sums required to undertake litigation is not a feasible response to difficulties in accessing their legal rights. This difficulty is exacerbated by the low levels of availability of Legal Aid. 

Summit participants agreed that Legal Aid is under-funded and not able to fulfill properly its mandate of ensuring that all Ontarians have equal and meaningful access to the justice system. 

Legal aid is unavailable to many lower and middle income applicants because of strict qualifying standards. It is almost wholly unavailable in civil matters. As well, Legal Aid pays lawyers at rates substantially below rates in private practice. As a result, fewer lawyers can take Legal Aid cases. Litigants who do qualify for Legal Aid, particularly in rural areas, are experiencing difficulty in finding a lawyer who will act.[156]

Income Security: While low-income is not currently widespread among older adults, some groups of older adults, such as unattached older women, are disproportionately low-income. As well, current trends in terms of pensions and retirement savings indicate that low-income may once again become more common among older adults. This means, for example, that costs associated with accessing legal rights and remedies could operate as a barrier to some significant groups of older adults. 

Living Environments: While the great majority of older adults live in private dwellings, they are significantly more likely than other adults to live in congregate settings, such as long-term care homes. This is particularly true for women of advanced age. This has important implications for how older adults access information, receive services and benefits, and enforce their rights. 

Persons living in congregate settings, and particularly long-term care homes, may face substantial barriers to accessing justice. The Advocacy Centre for the Elderly (ACE) has stated that:

The power imbalance between older adults and staff or health care providers in congregate settings is one of the most significant factors contributing to an environment where older people are reluctant to complain and seek justice. Residents are “captives” of the home in which they live: that is, they cannot do without the help that is provided, have little or no say about who provides that care, and cannot leave and go elsewhere if they are unhappy with the care they receive. We heard from residents at our focus groups that they do not complain due to fear of retribution by staff members and concerns about evictions. Also, residents expressed a reluctance to “make a fuss” or “cause trouble”. Some residents feared they would be “evicted” from the retirement home or long-term care home if they did not comply with the “rules”.[157]

As well, persons aged 65 and older are disproportionately likely to live in rural or remote areas,[158] and may face particular access issues as a result. As noted earlier, transportation may become a major issue for older adults who are unable to drive, and do not have access to public transportation due to their place of residence. The lack of legal and government services in these areas exacerbates these issues.[159] 

Family, Relationships and Caring: Some older adults are reliant on others for their wellbeing due to health and disability issues, financial dependency, or familial dynamics. As a result, older adults may be reluctant to complain about financial, emotional, physical or sexual abuse by family members or caregivers (formal or informal) on whom they are dependent for maintaining some level of independence and wellbeing.[160] For example, for an older adult who has continued to live in the community with supports, should a complaint result in the withdrawal of existing support systems, no other option may be available but to move into an institutional setting, something to which they may be adamantly opposed. 

Health, Activity Limitations and Disability: With advancing age, older adults are increasingly likely to develop physical or sensory disabilities. As well, many Canadians will have aged with disabilities and require barrier-free services. This means that buildings and services must be designed for accessibility. For example, materials posted on websites should be accessible to screen readers, levels of ambient noise adjusted for those who are hard-of-hearing, and physical barriers removed for those who are using wheelchairs, walkers, scooters or other mobility devices. 

Along these lines, the physical accessibility of law-related institutions becomes increasingly important, as inaccessible law offices, government services, administrative tribunals and courthouses will make it impossible for many older adults to access their legal rights.[161]  

Older adults also face disproportionate transportation-related barriers: with age, older adults become less likely to drive, and public transportation services may be non-existent (in rural and remote communities) or physically inaccessible.[162] Older adults may therefore have difficulty in travelling to access justice-related services. 

As well, ill-health may undermine the stamina required to undertake lengthy or onerous legal procedures.  

While most older adults have no significant cognitive deficits, adults may age with intellectual or developmental disabilities. There is also a risk of developing cognitive disabilities, such as dementia, with age.  Such disabilities may affect memory or decision-making skills, which may have a significant impact on the ability of these older adults to understand and to access rights and benefits. 

Persons who have aged with mental or intellectual disabilities, or who have developed cognitive disabilities with age, will experience a range of barriers to access to the law, from a lack of plain language publications about the law to problems with Ontario’s capacity and guardianship regimes. One example is the lack of provision for litigation guardians at administrative tribunals:

There is no provision to appoint a legal case worker or litigation guardian to act on behalf of a tenant who is mentally incapable of filing an application and pursuing a remedy at the [Landlord Tenant] Board. This interferes with the ability of tenants with mental illnesses to enforce their rights, including defending themselves against eviction. Tenants may not properly recollect events, understand the legal process, remember to attend at hearings or retain legal representation until after an eviction order has been enforced.[163]

ARCH, the specialty legal clinic for disability-related issues, has undertaken a project on the capacity of parties before administrative tribunals and has released an extensive report with recommendations for law reform on this issue.[164]

Intersecting Identities: Age is, of course, just one aspect of the identity of an older person, and often is not experienced as the most important aspect of a person’s identity. Each person’s experience of aging will also be affected by their gender, ethnicity or racialization, Aboriginal status, sexual orientation, socio-economic status, marital and family status, geographic location and other factors. Individuals who have experienced marginalization or disadvantage throughout their lives due to gender, racialization, sexual orientation, Aboriginal status or other factors may find that aging compounds that disadvantage or changes how they experience it. Older adults from marginalized groups are more likely to find themselves disadvantaged in their old age – for example, living in low-income or otherwise lacking access to supports and resources. It is therefore important for policy makers and legislators to take into account these other aspects of aging.

 

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