When children grow up and start families of their own, they remain involved in their parents’ lives to varying degrees. Across Ontario, adult children are faced with choices concerning the care of their elderly parents. Some will elect to live with their parents and provide personal care. When private nursing costs tens of thousands of dollars per year, should the adult child who elects to care for a parent at home be allowed to claim compensation for the care provided? If so, how much compensation is reasonable?
Ontario’s Substitute Decisions Act (“SDA”)1 governs the rights and obligations of Guardians appointed by the court for individuals who are incapable of managing their property or making decisions related to their personal care. Section 40 of the SDA addresses compensation for Guardians of Property and Continuing Powers of Attorney for Property,2 but there is no corresponding provision for Guardians of the Person or Powers of Attorney for Personal Care.3 Given that the SDA omission was purposeful does this mean that the drafters of the legislation felt that children who take care of their parents’ personal care needs should not be compensated? Is the SDA the end of story? No. Let’s see what the courts have to say.
The decision in Brown, Re4, stands for the proposition that, under certain circumstances, Guardians of the Person/Powers of Attorney for Personal Care are entitled to compensation and provides the principles for determining the appropriate amount of compensation.
In Childs v. Childs5, the parent, Eileen, is 88 years old and suffers from Alzheimer’s disease.6 Eileen’s present stated wish is to continue living in her home, but she is incapable of managing her property and personal care. Eileen has four children – Andrew, Caroline, Michael and Peter. Of the four children, only Caroline is actively involved in her mother’s life.
In her response to the application, Caroline claimed compensation on two grounds: (1) for live-in personal care services provided to her mother from July 25, 2011 to October 30, 2013 and (2) for her role as a Guardian of the Person going forward.
The evidence that Caroline marshalled in support of her claims highlights how difficult it is to persuade a judge that compensation should be awarded for personal care. It was undisputed that Caroline’s care improved her mother’s wellbeing and happiness. Caroline’s live-in support allowed Eileen to remain living at home which was of “priceless” value to her mother. Two of her three brothers supported the idea that Caroline was entitled to some compensation for providing Eileen with personal care. Her brothers proposed that Caroline receive a salary/honorarium of $60,000 per year or an amount equivalent to the cost of employing live-in help for Eileen.
Caroline claimed $133,000 for the care that she provided to Eileen for the 2 years prior to her appointment as Eileen’s Guardian of the Person. Ultimately, Caroline was awarded $25,000 for the personal care services that she had provided to her mother – much less than the amount she originally claimed. In deciding to compensate Caroline for the care she provided to Eileen, Justice Tranmer held that there was a role for equity in the case.
The reduced amount of compensation awarded was likely connected to the remainder of Caroline’s evidence. Caroline provided evidence that she cared for her mother without any expectation of compensation and was not able to lead any evidence that she had made significant sacrifices to care for her mother. Justice Tranmer commented that a child should not be paid to care for an ailing mother as the mother was not compensated for raising her children.7 Without proof that an adult child made significant sacrifices to provide personal care to a parent, it is likely that awards for personal care will be reduced to account for the presumption that families should care for their ailing members without being paid to do so.
Going forward, Caroline claimed $53,600 per year for her role as Eileen’s Guardian of the Person. Again, Caroline was awarded far less than she had claimed at $500 per month (combined with room and board at Eileen’s house). However, Caroline was also permitted to claim reimbursements for reasonable expenses incurred on behalf of Eileen.
When examining Caroline’s claims for compensation, Justice Tranmer draws a distinct line between the duties of a Guardian of the Person and someone who provides day to day care for a parent.8 In this case, an adult child who provided caregiving to an elderly parent was awarded a small amount of money for her efforts. However, this does not mean that caregiving will be compensated across the board. The analysis is fact specific which means that each case will turn on the facts presented to the judge.9 After weighing the costs of litigation against the potential benefits, it probably makes more sense to settle family disputes over compensation for caregiving as a family.
- Substitute Decisions Act, 1992, S.O. 1992, c. 30. ↵
- When the SDA refers to a Guardian of Property it is important to remember those provisions often also apply to an Attorney under Continuing Power of Attorney. See section 38(1) of the SDA which provides:
“Section 32, except subsections (10) and (11), and sections 33, 33.1, 33.2, 34, 35.1, 36 and 37 also apply, with necessary modifications, to an attorney acting under a continuing power of attorney if the grantor is incapable of managing property or the attorney has reasonable grounds to believe that the grantor is incapable of managing property” ↵
- When the SDA refers to a Guardian of Person it is important to remember those provisions often also apply to an Attorney power of attorney for personal care. See section 67 of the SDA which provides:
“Section 66, except subsections 66(15) and (16), applies with necessary modifications to an attorney who acts under a power of attorney for personal care”. ↵
- Brown, Re, 1999 CarswellOnt 4628 (Ont. S.C.J.). ↵
- Childs v. Childs (2015), 2015 CarswellOnt 9627, 2015 ONSC 4036 (Ont. S.C.J.) . ↵
- WeirFoulds Estates & Trusts Newsletter, EST. L. Nws. 2015-05 contains a very interesting review of this case. ↵
- The judge’s comments reminded me of a Yiddish folksaying my father often repeated to me, “Ein mama ken aushalten tzen kinder, uber tzen kinder kennen nisht aushalten ein mama” – “One mother can care for ten children, but ten children can’t care for one mother.” ↵
- Childs v. Childs (2015), 2015 CarswellOnt 9627, 2015 ONSC 4036 (Ont. S.C.J.) at para. 45 ↵
- Childs v. Childs (2015), 2015 CarswellOnt 9627, 2015 ONSC 4036 (Ont. S.C.J.) at paras. 16, 18, 32, 38 and 40. ↵