From isolation to injunction: Navigating the legal landscape of elder abuse in Ontario

Law360 Canada (November 13, 2025, 11:19 AM EST) --

Gabriela Verdicchio

Bradley Phillips

Elder abuse is a critical and underreported public health crisis, significantly exacerbated by factors like social isolation, particularly during the COVID-19 pandemic.

This article examines the civil remedies available to clients, focusing on legal interventions such as the removal of abusive attorneys for personal care (APC) and other injunctive relief, and the application of torts to address physical abuse and severe psychological harm. The analysis concludes that while existing civil tools offer partial recourse, their fragmentation often leads to inefficient and inadequate protection.

Introduction

Elder abuse represents a profound public health and systemic failure, affecting an estimated four per cent to 10 per cent of older persons in Canada. Despite this substantial prevalence, only approximately one in five incidents are ever identified by those positioned to provide assistance. The COVID-19 pandemic highlighted and amplified the risk factors, notably social isolation, which directly correlates with increased vulnerability to all forms of abuse.

The challenge begins with the lack of a universal definition for elder abuse in Canada. Judges rely on a patchwork of definitions from various statutes, policymakers and experts in defining the term.

The World Health Organization defines elder abuse as: “A single or repeated act, or lack of appropriate action, occurring within any relationship where there is an expectation of trust, which causes harm or distress to an older person.”

This definition is intentionally broad, covering abuse by action or omission, and hinges critically on the “expectation of trust,” which distinguishes it from general victimization. The categories of abuse are traditionally segmented into psychological, physical, sexual and material/financial abuse, each requiring distinct legal approaches.

Legal framework

Ontario’s statutory response to elder abuse is a mosaic of legislation spanning both personal care and institutional settings:

• The Substitute Decisions Act, 1992 (SDA): Provides the legal mechanism for managing the property and personal care decisions of mentally incapable adults, making it central to cases encompassing all forms of elder abuse.
• The Fixing Long-Term Care Act, 2021 (FLTCA): Explicitly defines and mandates protections against abuse within regulated long-term care homes (LTCH), holding licensees accountable for the safety of residents.
• The Retirement Homes Act, 2010: Addresses protection and care quality in private residential settings.
• The Human Rights Code: Applicable when abuse is rooted in discrimination based on protected grounds like age or disability, and can address harassment (sexual or psychological).
• The Criminal Code of Canada: Codifies offences applicable to elder abuse, including assault, theft, fraud and neglect (failure to provide necessaries of life).

Civil remedies

The majority of elder abuse incidents occur within the older person’s community or home, outside of regulated institutional oversight. Consequently, civil legal remedies focusing on prevention of ongoing harm and financial compensation are essential.

Abuse by fiduciary (isolation and breach of trust)

When an APC appointed under the SDA (responsible for decisions regarding health, shelter or nutrition) engages in active isolation of the incapable older person from supportive individuals, this constitutes a severe breach of fiduciary duty and abuse. The most direct legal intervention is an application to remove the APC under the Substitute Decisions Act s. 53(1)(d). This is justified because isolation directly contravenes the APC’s statutory duty to “foster regular personal contact between the incapable person and supportive family members and friends” (SDA, s. 66(6)). The case of Chu v. Chang, [2009] O.J. No. 4989 emphasizes that, in certain cases, cutting off contact with loved ones is a profound act of malice and a clear rationale for removal, prioritizing the older person’s overall well-being.

Institutional, in-home and family abuse

Abuse occurring within a LTCH by staff or other residents (e.g., verbal abuse, physical neglect, sexual abuse) may potentially be addressed by potential injunctive relief, removal from the home and a civil claim for breach of statutory duty under the FLTCA, which mandates that the licensee “shall protect residents from abuse by anyone,” including other residents, LTCH staff or visitors. However, legal approaches where capacity has not yet been determined or is fluid vary and are context specific. Furthermore, in situations where an older person is being abused by an immediate family member, the APC can use their authority under the SDA to restrict visitation rights if it is demonstrated that the visits cause observable harm and distress (Orr (Attorney for Property and Personal Care of) v. Orr, 2025 ONSC 4986).

Monetary damages via intentional torts

Older persons experiencing elder abuse can seek monetary damages to compensate for physical, psychological and financial losses. For an incapable person, a litigation guardian must first be appointed under Rule 7.01(1) of the Rules of Civil Procedure to pursue the claim. Key torts that can be relied upon in cases of elder abuse include:

• Tort of Battery: Applicable to physical abuse, focusing on the intentional, non-consensual touching of the plaintiff.
• Tort of Sexual Battery: Applied when the non-consensual contact is of a sexual nature, representing a profound violation of dignity.
• Tort of Intentional Infliction of Mental Suffering (IIMS): This is the crucial tool for prosecuting psychological and emotional abuse. To establish IIMS, the plaintiff must successfully prove three stringent elements (Ahluwalia v. Ahluwalia, 2023 ONCA 476 at paras. 69-70): 1) The defendant’s conduct was flagrant and outrageous; 2) The conduct was calculated to produce harm; and 3) The conduct resulted in the plaintiff suffering a visible and provable illness (e.g., severe anxiety, depression, PTSD).

Conclusion

Elder abuse represents an escalating societal problem compounded by the lack of a single, comprehensive definition. While a patchwork of civil remedies and intentional tort claims exists to address individual instances of physical, financial and emotional harm, this approach is often inefficient. Civil proceedings are frequently inaccessible due to cost and duration, and they often fail to provide the broad preventative power or criminal accountability necessary to deter future abuse. A truly comprehensive solution demands a holistic, dedicated legislative framework that integrates stronger civil protection mechanisms with simplified access to justice and robust criminal enforcement, ensuring a unified approach to safeguarding older adults in all relational contexts.

For those who deal with these issues, or who are interested in them, a lunch and learn seminar on elder abuse will be hosted by Wagner Sidlofsky LLP on Nov. 18, 2025, starting at 12 p.m., presented by Bradley Phillips of Wagner Sidlofsky LLP, Marshall Swadron of Swadron Associates and Graham Webb, executive director of The Advocacy Centre for the Elderly. They will review different approaches and strategies and provide their insights on what to consider in different circumstances. For more information and to register, please access this link.

Gabriela Verdicchio is a lawyer at Wagner Sidlofsky LLP, practising in the estate and commercial litigation groups.

Bradley Phillips is a partner and a member of Wagner Sidlofsky LLP’s estate and commercial litigation groups.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, LexisNexis Canada, Law360 Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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