World Elder Abuse Awareness Day shines a spotlight on the vulnerabilities faced by older adults. However, despite the increasing awareness of “elder abuse” and “elder law,” there remain many misconceptions surrounding this area of law; namely, that these terms represent a distinct cause of action and a pre-defined area of practice.
Introduction
Each year on June 15, communities around the world mark World Elder Abuse Awareness Day, an international observance established by the United Nations to draw attention to the physical, psychological, and financial harms experienced by older adults. The Day was formally recognized by the United Nations General Assembly in 2011,[1] and has since served as a rallying point for governments, legal practitioners, health professionals, and advocates who work to protect vulnerable seniors.
For lawyers and litigators, the rise in prominence and awareness of elder abuse has raised broader questions regarding what areas of law are actually implicated by the term elder abuse. The answer is not as straightforward as it might seem.
What is Elder Abuse?
While the term elder abuse has ascended into the popular and professional vernacular, it is important to acknowledge that presently, at law and at least insofar as Ontario is concerned, there is no discrete cause of action or recognized tort of “elder abuse”. Rather, elder abuse is merely a convenient shorthand for a wide and overlapping set of legal issues that disproportionately affect older adults.
Understanding this distinction matters and the failure to appreciate the same may lead to practical adverse outcomes for both public and litigators alike. For the public, it is important to recognize that there is no distinct tort of elder abuse; consequently, unkind or unconscionable conduct toward an elderly individual is not automatically grounds for a lawsuit.
Similarly, because there is no distinct tort of elder abuse, practitioners are required to think about how the facts presented slot into existing causes of action. For litigators, a fact pattern involving elder abuse means evaluating whether the conduct gives rise to claims of undue influence, breach of fiduciary duty, misuse of a power of attorney, fraudulent conveyance, unjust enrichment, or an established tort.
What is Elder Law?
There is no statutory definition of Elder Law in Ontario, nor is it a recognized doctrinal category in the common law. Similarly to the term elder abuse, elder law is best understood as a convenient shorthand and is not confined to a single traditional practice area; rather, it is defined by the population it serves and encompasses a wide range of legal issues that impact their rights and welfare.[2]
While elder law in Ontario is commonly associated with the below set of core practice areas: namely,
- Capacity and Substitute Decision-Making: Proceedings concerning decision-making capacity, guardianship applications, powers of attorney, and the statutory regime established under the Substitute Decisions Act, 1992, S.O. 1992, c. 30;[3] and
- Wills, Trusts, and Estates: Estate planning, testamentary capacity challenges, undue influence, will validity proceedings, dependant support claims under Part V of the Succession Law Reform Act, R.S.O. 1990, c. S.26, and disputes arising during estate administration.[4]
A comprehensive view of elder law must also account for systemic and structural issues that are just as vital to an aging population but often siloed into other practices. This includes advancing human rights claims under the Ontario Human Rights Code,[5] to combat age discrimination in housing, employment, and services. Because an aging client’s challenges rarely fit into a single legal box, the discipline resists neat doctrinal categorization, frequently requiring a single file to bridge the gap between private estate disputes and public law remedies.
Elder Abuse & Estate Litigation
For estate litigators, elder abuse most frequently surfaces in the form of financial exploitation as procured through undue influence and/or breach of fiduciary duty.
The doctrine of undue influence is perhaps the most commonly invoked ground for challenging testamentary validity, where said document is alleged to have been executed through circumstances amounting to coercion. In the landmark Supreme Court of Canada decisions of Vout v. Hay,[6] and Goodman Estate v. Geffen,[7] the Court affirmed that undue influence may be either actual (requiring proof of coercive conduct) or presumed (arising from certain relationships of dependency or trust).[8] Where suspicious circumstances are demonstrated, a presumption arises and the burden shifts to the donee or beneficiary to demonstrate that the transaction was the product of the donor’s free and independent will.[9]
Financial abuse of older adults also frequently involves the misuse of a power of attorney for property. An attorney for property owes fiduciary obligations to the grantor and must act in the grantor’s best interests, keep proper accounts, and avoid self-dealing.[10] Where an attorney misappropriates assets, the grantor (or the grantor’s estate) may seek an accounting, disgorgement, and damages in the Superior Court. Historically, Courts have shown little tolerance for attorneys who have misused a power of attorney for personal enrichment.
In terms of judicial remediation where financial exploitation has occurred, Ontario Courts have the use of resulting trusts and unjust enrichment as tools to unwind gratuitous transfers made by vulnerable elderly individuals. In Pecore v. Pecore,[11] the Supreme Court of Canada confirmed that gratuitous transfers to adult children (other than dependent minor children) are presumed to create a resulting trust in favour of the transferor’s estate, unless rebutted by evidence of a contrary intention.[12] This presumption is a powerful tool for estates litigating the recovery of assets transferred under circumstances consistent with exploitation.
Final Remarks
Ultimately, the takeaway for both the public and practitioners is that “elder abuse”, and “elder law” are not standalone legal categories or distinct causes of action, but rather helpful shorthands for an overlapping web of existing legal issues affecting older adults.
In Ontario, addressable misconduct does not rely on a specific elder-focused tort; instead, it demands that litigators creatively and strategically fit the facts into established frameworks like undue influence, breach of fiduciary duty, or resulting trusts under the Substitute Decisions Act and the Succession Law Reform Act. Effectively advocating for an aging population requires moving past these conversational labels and masterfully bridging the gap between private estate disputes and broader public law remedies to protect vulnerable seniors.
—
[1] UN General Assembly, Follow-up to the Second World Assembly on Ageing: resolution adopted by the General Assembly on 19 December 2011, at provision 21, (A/RES/66/127, December 19, 2011, available at: https://undocs.org/A/RES/66/127).
[2] Elder Law – WEL Partners – Toronto Estate Litigation Law Firm
[3] Substitute Decisions Act, 1992, S.O. 1992, c. 30 (“SDA”).
[4] Succession Law Reform Act, R.S.O. 1990, c. S.26 (“SLRA”).
[5] Human Rights Code, R.S.O. 1990, c. H.19.
[6] Vout v. Hay, 1995 CanLII 105 (SCC) (“Vout”).
[7] Geffen v. Goodman Estate, 1991 CanLII 69 (SCC).
[8] Ibid.
[9] Vout, at paras 19-21.
[10] SDA, at sections 32–38.
[11] Pecore v Pecore, 2007 SCC 17 (“Pecore”).
[12] Ibid., at paras 21-22.
Written by: Grant Swedak
Posted on: June 30, 2026
Categories: Commentary, Elder Abuse, Elder Law, WEL Newsletter
World Elder Abuse Awareness Day shines a spotlight on the vulnerabilities faced by older adults. However, despite the increasing awareness of “elder abuse” and “elder law,” there remain many misconceptions surrounding this area of law; namely, that these terms represent a distinct cause of action and a pre-defined area of practice.
Introduction
Each year on June 15, communities around the world mark World Elder Abuse Awareness Day, an international observance established by the United Nations to draw attention to the physical, psychological, and financial harms experienced by older adults. The Day was formally recognized by the United Nations General Assembly in 2011,[1] and has since served as a rallying point for governments, legal practitioners, health professionals, and advocates who work to protect vulnerable seniors.
For lawyers and litigators, the rise in prominence and awareness of elder abuse has raised broader questions regarding what areas of law are actually implicated by the term elder abuse. The answer is not as straightforward as it might seem.
What is Elder Abuse?
While the term elder abuse has ascended into the popular and professional vernacular, it is important to acknowledge that presently, at law and at least insofar as Ontario is concerned, there is no discrete cause of action or recognized tort of “elder abuse”. Rather, elder abuse is merely a convenient shorthand for a wide and overlapping set of legal issues that disproportionately affect older adults.
Understanding this distinction matters and the failure to appreciate the same may lead to practical adverse outcomes for both public and litigators alike. For the public, it is important to recognize that there is no distinct tort of elder abuse; consequently, unkind or unconscionable conduct toward an elderly individual is not automatically grounds for a lawsuit.
Similarly, because there is no distinct tort of elder abuse, practitioners are required to think about how the facts presented slot into existing causes of action. For litigators, a fact pattern involving elder abuse means evaluating whether the conduct gives rise to claims of undue influence, breach of fiduciary duty, misuse of a power of attorney, fraudulent conveyance, unjust enrichment, or an established tort.
What is Elder Law?
There is no statutory definition of Elder Law in Ontario, nor is it a recognized doctrinal category in the common law. Similarly to the term elder abuse, elder law is best understood as a convenient shorthand and is not confined to a single traditional practice area; rather, it is defined by the population it serves and encompasses a wide range of legal issues that impact their rights and welfare.[2]
While elder law in Ontario is commonly associated with the below set of core practice areas: namely,
A comprehensive view of elder law must also account for systemic and structural issues that are just as vital to an aging population but often siloed into other practices. This includes advancing human rights claims under the Ontario Human Rights Code,[5] to combat age discrimination in housing, employment, and services. Because an aging client’s challenges rarely fit into a single legal box, the discipline resists neat doctrinal categorization, frequently requiring a single file to bridge the gap between private estate disputes and public law remedies.
Elder Abuse & Estate Litigation
For estate litigators, elder abuse most frequently surfaces in the form of financial exploitation as procured through undue influence and/or breach of fiduciary duty.
The doctrine of undue influence is perhaps the most commonly invoked ground for challenging testamentary validity, where said document is alleged to have been executed through circumstances amounting to coercion. In the landmark Supreme Court of Canada decisions of Vout v. Hay,[6] and Goodman Estate v. Geffen,[7] the Court affirmed that undue influence may be either actual (requiring proof of coercive conduct) or presumed (arising from certain relationships of dependency or trust).[8] Where suspicious circumstances are demonstrated, a presumption arises and the burden shifts to the donee or beneficiary to demonstrate that the transaction was the product of the donor’s free and independent will.[9]
Financial abuse of older adults also frequently involves the misuse of a power of attorney for property. An attorney for property owes fiduciary obligations to the grantor and must act in the grantor’s best interests, keep proper accounts, and avoid self-dealing.[10] Where an attorney misappropriates assets, the grantor (or the grantor’s estate) may seek an accounting, disgorgement, and damages in the Superior Court. Historically, Courts have shown little tolerance for attorneys who have misused a power of attorney for personal enrichment.
In terms of judicial remediation where financial exploitation has occurred, Ontario Courts have the use of resulting trusts and unjust enrichment as tools to unwind gratuitous transfers made by vulnerable elderly individuals. In Pecore v. Pecore,[11] the Supreme Court of Canada confirmed that gratuitous transfers to adult children (other than dependent minor children) are presumed to create a resulting trust in favour of the transferor’s estate, unless rebutted by evidence of a contrary intention.[12] This presumption is a powerful tool for estates litigating the recovery of assets transferred under circumstances consistent with exploitation.
Final Remarks
Ultimately, the takeaway for both the public and practitioners is that “elder abuse”, and “elder law” are not standalone legal categories or distinct causes of action, but rather helpful shorthands for an overlapping web of existing legal issues affecting older adults.
In Ontario, addressable misconduct does not rely on a specific elder-focused tort; instead, it demands that litigators creatively and strategically fit the facts into established frameworks like undue influence, breach of fiduciary duty, or resulting trusts under the Substitute Decisions Act and the Succession Law Reform Act. Effectively advocating for an aging population requires moving past these conversational labels and masterfully bridging the gap between private estate disputes and broader public law remedies to protect vulnerable seniors.
—
[1] UN General Assembly, Follow-up to the Second World Assembly on Ageing: resolution adopted by the General Assembly on 19 December 2011, at provision 21, (A/RES/66/127, December 19, 2011, available at: https://undocs.org/A/RES/66/127).
[2] Elder Law – WEL Partners – Toronto Estate Litigation Law Firm
[3] Substitute Decisions Act, 1992, S.O. 1992, c. 30 (“SDA”).
[4] Succession Law Reform Act, R.S.O. 1990, c. S.26 (“SLRA”).
[5] Human Rights Code, R.S.O. 1990, c. H.19.
[6] Vout v. Hay, 1995 CanLII 105 (SCC) (“Vout”).
[7] Geffen v. Goodman Estate, 1991 CanLII 69 (SCC).
[8] Ibid.
[9] Vout, at paras 19-21.
[10] SDA, at sections 32–38.
[11] Pecore v Pecore, 2007 SCC 17 (“Pecore”).
[12] Ibid., at paras 21-22.
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