Elder Financial Abuse

Elder abuse can take many forms, including financial, physical, psychological (mental or emotional) and sexual abuse. Neglect can also be an overlooked form of abuse.

According to the Canadian Department of Justice, financial abuse is the most commonly reported type of abuse against older adults.¹ However, the Department of Justice also commented on the difficulty in estimating the accurate prevalence and incidence of elder abuse in Canada due to obvious factors associated with under-reporting.² Financial abuse can look like anything including:

• improper use of bank accounts and/or joint bank accounts;
• forgery or abuse involving a power of attorney document;
• sharing an older adult's home without payment of, or sharing in, expenses; misuse, appropriation, or theft of an older adult's assets; transfer of real property; and
• ATM fraud.³

Often financial abuse is conducted by a family member upon whom the older adult is dependent and who is potentially influenced by or controlled and victimized.⁴ Financial abuse can also be inflicted by a caregiver, service provider, or other person in a position of power or trust (where there is a power imbalance).⁵ Financial abuse often occurs in connection with other types of abuse. For example, an attorney under the power of attorney document may refuse to provide an older adult with funds to pay for groceries or to provide an older adult with other necessaries of life.

Indicators of Financial Abuse

Some indicators specific to financial abuse on an older adult include:

• Non-sequential cheque numbers, suspicious signatures, and other indicators of fraud;
• Unexpectedly large payments for services or products (e.g., a $500 phone bill payment);
• Unexplained disappearance of possessions (e.g., lost jewelry or silverware, valuables removed from safe deposit boxes);
• Changes in Power of Attorney documents;
• Previously uninvolved relatives or new friends moving in or claiming property, with or without the older person’s permission or consent;
• Unexplained or sudden inability to pay bills;
• Poor living conditions in comparison to the value of their assets;
• Changes in banking patterns (e.g., sudden large withdrawals, unusual purchases, new credit card debt);
• Someone else keeps their bank cards or identity documents; or
• Confusion or lack of knowledge about a financial situation or a new legal document.⁶

Civil and Criminal Remedies

Once elder abuse is reported or discovered, there are at least two avenues that can be followed in pursuit of a remedy: a civil proceeding in court (i.e., lawsuits between private parties) or a criminal proceeding (i.e., where an individual is prosecuted under the Criminal Code, ⁷ by the Crown).

Criminal Remedies

While criminal prosecution is a possibility in the context of elder abuse. However, prosecution is not always in the public interest, for a variety of reasons:

• the victim may be reluctant to cooperate in a prosecution of a loved one, especially where the abuser is the only significant support or social connection in the victim’s life;
• the victim may be in poor health or have deteriorating capacity; and/or,
• the victim may die before the case goes to trial.

Select criminal offences can be particularly useful in deterring and penalizing perpetrators of financial abuse. Notably however, the Criminal Code neither provides for the specific offence of “elder abuse,” nor, “financial abuse”. Some of the relevant Criminal Code charges include:

• Section 215: Failure to Provide the Necessaries of Life
• Section 265: Physical assault
• Section 271: Sexual assault
• Section 331: Theft by a Person Holding a POA
• Section 322: Theft
• Section 336: Criminal Breach of Trust/Conversion
• Section 345: Stopping mail with intent
• Section 342: Theft or forgery of a credit card
• Section 366: Forgery
• Section 346: Extortion
• Sections 386-388: Fraud
• Section 423: Intimidation

Section 718 of the Criminal Code, a sentencing provision introduced in 2013, provides our courts with additional factors that can be considered to increase the severity of sentencing, such as where the victims of these crimes are older and vulnerable. Furthermore, section 718 references a wide range of aggravating factors that can be considered by the court in determining appropriate sentencing principles. For example, longer sentences are warranted if the crime was motivated by age or disability and evidence exists that the offender abused a position of trust or authority in relation to the victim.

Civil Remedies

There are various civil remedies that a Court can order in financial abuse situations and the following case examples demonstrate the creative approaches they can use, especially in equity. These include:

Court removal of an attorney: The criteria for removing an attorney is found in the case of Teffer v Schaefers Estate,⁸ where the court concluded that 2 conditions must be met:

• First: There must be strong & compelling evidence of misconduct or neglect on the part of the attorney,
• Second: the court must find that the best interests of the incapable person are not being served by the attorney.

An Order to account: An order to account” informally/formally through a court application requires that the attorney for property provide supporting documentation to show every transaction undertaken on the grantors behalf. The requirement for an accounting is found in Ontario’s Substitute Decisions Act.⁹ At the hearing of an accounting application the court will consider the evidence, look at the accounts and the conduct of the attorney. Judges have broad discretion in accounting applications and can make all manner of inquiry into the conduct of the attorney.

Repay Money Improperly Taken: A civil court can order repayment plus interest and legal costs if they find that an attorney improperly took money from the donor/grantor, did not pursue another who, for example, did not repay a “loan” from the older adult,  or committed civil fraud on the older adult, amongst other things.

“Set Aside” a Transfer of Title or a Joint Name added to a Bank Account: Older adults may transfer real property into a joint tenancy or bank accounts into joint names with 1 or more of their adult children, or other. Sometimes, this is a planning technique used to avoid estate administration tax. Obtaining “rights of survivorship” on a joint bank account can be as simple as checking off a box on a banking form

Restitution (Unjust Enrichment/Constructive Trust/Resulting Trust): A court can declare that although the abuser may have “legal” title to property, the “beneficial” title belongs to the older adult. In other words, while the name on the property is that of the abuser, the property really belongs to the older adult. This may occur where an abuser has been “unjustly enriched”.

Some equitable doctrines relevant to elder financial abuse include:

• The doctrine of undue influence;
• The Tort of Deceit/Civil Fraud;
• The Rule against using a Statute as an Instrument of Fraud;
• The Rule that No one shall Profit from his or her own wrongdoing (slayers Rule);
• Ex Turpi Causa Non Oritur Actio and
• Lack of independent legal advice.

For more information on these equitable remedies and on elder financial abuse, see:

Whaley Estate Litigation Partners on Elder Law

Whaley Estate Litigation Partners on Will and Estate Challenges

Paper: Elder Abuse: Civil and Criminal Remedies, Kimberly Whaley, January 2025

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1. Government of Canada, “Backgrounder Elder Abuse Legislation” (15 March 2012), online: <https://www.canada.ca/en/news/archive/2012/03/elder-abuse-legislation.html>.

2. Ibid, Government of Canada, “Backgrounder Elder Abuse Legislation”.

3. Public Health Agency of Canada, “Facts on Financial Abuse of Seniors” (2009); see also, Government of Canada, “Elder Abuse: It’s Time to Face the Reality” (July 26, 2012), online: < https://www.canada.ca/en/public-health/services/health-promotion/stop-family-violence/prevention-resource-centre/prevention-resources-older-adults/elder-abuses-time-face-reality.html>.

4. Ontario Provincial Police, Tip Sheet on Abuse of Older Adults; see also, Elder Abuse Prevention Ontario, Reporting, online: <https://eapon.ca/reporting/>.

5. Advocacy Centre for the Elderly, “Community Training Manual”, Third Ed., December 2002, online: < http://www.advocacycentreelderly.org/appimages/file/eamanualsec1(2).pdf >. 

6. For more information on the indicators of elder abuse, see generally, Elder Abuse Prevention Ontario, “Learn the Facts”, online: < https://eapon.ca/learn-the-facts/>.

7. Criminal Code,RSC 1985, c.C-46.

8. Teffer v. Schaefers, 2008 CarswellOnt 5447, 93 O.R. (3d) 447 (Ont. S.C.J. Sep 12, 2008).

9. 1992, S.O. 1992, c.30

This overview is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This information is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive. Whaley Estate Litigation Partners.

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