Not Thy Parents’ Legal Keeper

Morrison v. Hooper, 2010 ONSC 4394

M was 84 when she was struck by a vehicle while crossing a road. One liability issue was whether she was in a crosswalk crossing with the lights. She was on her way home from the bank.

She was healthy enough (physically and mentally) before the accident to be living independently, comfortably. Nonetheless, the defence counterclaimed against M’s children for contribution, alleging that M was mentally incompetent, that the children had a duty to supervise her, that they breached this duty, and that that breach was a cause of the incident.

The children moved to have have the action against them dismissed. They succeeded.

The motion judge held that “there is no duty in law for a child to supervise an elderly parent who is living independently.”

I don’t know if the result will be appealed. It should not be.

Excerpts from the case follow after the break.

 [35] Ms. Morrison had both medical and community assistance. Her family doctor saw her on many occasions in 2002 and 2003 and his notes confirm a variety of physical complaints consistent with old age. There is no note of mental confusion or paranoid thinking. There is a nursing note during Ms. Morrison’s admission to Scarborough General Hospital after the accident that she spoke to Dr. Parikh by telephone, which reads: “Family doctor feels patient is competent to make own decisions.”

[13] I conclude that there is no duty in law for a child to supervise an elderly parent who is living independently.

[21] I conclude that an elderly parent living independently from the children is not in a special relationship of vulnerability with the children in a corresponding position of power. Children do not owe a duty to proactively force elderly parents to submit to an unwanted assessment. An elderly person living independently, even with some difficulties, is autonomous, unless judged otherwise by the court after consultation with expert capacity specialists.

[26] I conclude that there is no legal duty for a child to take proactive steps to force an unwilling elderly parent into a geriatric assessment. An elderly person’s autonomy is to be respected.

[27] Second, considering the second branch of the Anns test, even if there was a prima facie duty to act there are a host of public policy reasons why imposing such a duty upon children of elderly parents should not occur.

[28] To extend a duty of care to children of elderly parents living independently would create chaos in litigation. It would add cost and delay as tactics emerge sidetracking the main focus of the issues as is evidenced by this litigation. This accident occurred in 2003 and it is now 2010. Ms. Morrison is now 91 years old. It is appalling that it has taken this long for the matter to get to trial.

[29] It is not disputed that the children sought advice from a geriatric psychiatrist who had met with Ms. Morrison. Seeking advice and discussing issues of medication did not mean that the children became caregivers to their mother. To impose the legal duty of responsibility flowing from this type of consultation would undermine important collaboration between the medical profession and children of aging parents to problem solve in the best interests of an elderly parent.

[30] To attach civil liability to responsible children doing their best with the help of social services and the medical profession to assist aging parents facing difficult transitional issues would have a terrible chilling effect of discouraging children from assuming, not their legal obligation, but their moral obligation to their parents.

[31] I conclude that a child has no duty in law to supervise or impose unwanted assessments upon an aging parent who is living independently. ….

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