The Canadian demographic continues to age, with many baby
boomers moving into the latter part of their lives. The increase in
this demographic will continue to place significant burdens on the
health care system, as well as adult children to care for their
parents and provide the necessities of life.
One of the hardest decisions to make is when to deem an elder
relative incapable of caring for themselves independently. When
does a duty arise on behalf of an adult child to supervise an
elderly relative who is living independently? This question and its
possible ramifications provide an opportunity to revisit the case
of Morrison, et al. v. Hooper and v. Young, et
In Morrison, Anna Morrison was 84 years old when she
was crossing as a pedestrian two blocks from her home in the City
of Toronto. She was violently struck by the Defendant's vehicle
and sustained serious injuries. Ms. Morrison and her two adult
children commenced an action for damages and the Defendant, in
turn, counterclaimed alleging that Ms. Morrison's adult
children failed to properly supervise the conduct of Ms.
The Plaintiff's medical history documented some features of
"suspicious paranoid thinking" for some time prior to the
accident. In addition, she was receiving assistance twice a week
from an assigned personal support homemaker to aid in laundry and
bathing. Her Geriatric Psychiatrist confirmed that the Plaintiff
was competent enough to decide on a nursing home placement but was
too high functioning to be placed in one. Though her doctor used
the word "dementia" to describe her condition, the
Plaintiff exhibited much independence.
A motion for summary judgment was brought by the Plaintiff's
adult children, seeking to strike the Defendant's counterclaim
as disclosing no cause of action or failing to raise a triable
issue. At issue on motion was whether in law, there may be a duty
to supervise an elderly parent who is living independently. Justice
Wilson, writing for the Ontario Superior Court of Justice,
concluded that there is no duty in law for a child to supervise an
elderly parent who is living independently.
In her reasons, Justice Wilson provided that the Plaintiff's
children had acted responsibly by providing social assistance and
seeking proper medical treatment and concluded that an elderly
parent living independently from their children is not in a special
relationship of vulnerability with the children in a corresponding
position of power. An elderly person living independently, even
with some difficulties, is autonomous, unless judged otherwise by
the court after consultation with expert capacity specialists.
Justice Wilson granted the Plaintiffs' motion for summary
judgment and ordered that the Defendant's crossclaim be struck
as it was plain and obvious that the counterclaim did not disclose
a cause of action.
It is important to recognize that although Justice Wilson did
not find a duty to be owed to the Plaintiff in Morrison,
there are certainly circumstances in which a duty will arise in the
future. We anticipate that this question will continue to surface
with an aging population, the limited space in public homes, and
the high cost of care for relatives to live in private facilities
going into the future.
Counsel and adjusters alike, should review files where
elderly relatives have a history of
diminished capacity, or
Expert capacity specialists have
deemed the individuals to be incapable of making informed
These files may trigger a relative's duty to supervise and
should be flagged as possible instances where a duty may be found
and exposure to a claim for damages could arise from a
relative's failure to discharge this duty.
1 2010 ONSC 4394 [Morrison].
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