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Writer Kurt Vonnegut, now 83, recently mused that he wanted to sue the tobacco companies for false advertising because he’d been chain-smoking unfiltered cigarettes since the age of 12 and had fully expected to die before he grew old.
When I was 12, I first heard the Who’s song My Generation. “Hope I die before I get old” made perfect sense at a time when old people seemed like overripe fruit to my adolescent mind.
After going through a few decades of ripening, I’ve come to appreciate the beauty, and tribulations, of growing old. Writers and rock stars can playfully claim to desire a brief but explosive life, but the vast majority of people embrace the instinctive urge to forestall their mortality.
Since 1920, average life expectancy in Canada has increased by seven years for men and 13 for women. Projections show that by 2015, seniors will represent a quarter of the population.
Changing demographics present a unique challenge for the law. The law imposes clear obligations of care upon parents and spouses, but the obligations of adult children to aging parents are uncertain.
Far more elderly people live with their children than in health care institutions, yet few people know where they stand legally when it comes to the obligation to provide for an aging parent.
There is a civil obligation in Ontario under s.32 of the Family Law Act to provide support “to the extent the child is capable of doing so.” Very few elderly people have made use of this law there have been fewer than 25 reported cases on this provision since 1982.
More dramatically, there is potential criminal liability under s.215 of the Criminal Code for failing to provide “necessaries of life” to an aging parent, but only if the parent is under the child’s “charge” and is unable to attend to the basic necessities of life. Unfortunately, there is no clear definition of when a parent is under the charge of a child.
Last year the Ontario Court of Appeal had an opportunity to shed some light on the obligations under s.215 when it upheld Dennis Peterson’s conviction for failing to attend to the needs of his 84-year-old father.
The family home, which the father had lived in for 40 years, had been divided into apartments. The father lived on the main floor without a functioning kitchen or bathroom. The floorboards were lifting and filled with dead cockroaches. Dennis Peterson lived on the second floor and kept his door locked.
The police had found the father looking exhausted, emaciated, dirty and smelly. He was very hungry, claiming not to have eaten for a few days except for an apple his son had given him the day before.
In his defence, Peterson claimed that his father was fiercely independent and would stubbornly refuse to look to his children for assistance. Nonetheless, the court convicted him, noting that when a parent refuses care, the child is at least obligated to seek the help of community agencies. Peterson was sentenced to six months in jail for neglect.
No real attempt was made by the court to define the triggering precondition of being under one’s charge other than a circular statement to the effect that a child is responsible for an aging parent when the child has the responsibility to take care of this person.
I can only assume that the court found the father to be under the charge of the child because both still lived under the same roof. The court did not address the more difficult question of when an adult child will be held criminally responsible in cases where the child and parent live apart.
The concept of a parent being under the charge of a child was based on 19th-century legislation that may fit awkwardly in the 21st. The idealized nuclear family of Victorian days has significantly mutated in modern times, yet the law has not evolved to account for the fact that there are few multi-generational families living happily under the same roof.
The Victorian ideal does not recognize that there are children who hate their parents and children who were mistreated by their parents.
Unconditional support of an aging parent by an aging child may be a moral ideal, but the complexities of the modern dysfunctional family suggest that in many cases it may be unjust to impose civil and criminal sanctions for the failure to live up to it.
It was morally reprehensible for Dennis Peterson to allow his father to lose dignity and live in squalor and decay while living in the same home. Perhaps it does deserve the attention of the criminal law.
But we will need much greater clarification of the legal duties of child to parent as we prepare for the invasion of the octogenarians.
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