Will An Adult Child Be Compensated For Caring For An Incapacitated, Elderly Parent?

For many, aging is accompanied by weakened bodies and minds. In many cases, an individual becomes incapable of caring for himself or herself. Private care, whether arranged privately or through a care facility, can cost thousands of dollars annually. If the individual's adult child steps into the primary caregiving role, is that child legally entitled to financial compensation? Moreover, if the child is entitled to compensation, how much compensation may he or she receive.

In Ontario, an adult child is entitled to "reasonable" compensation for caring for an elderly, incapacitated parent. What is "reasonable" however, is depended on the specific facts of the situation, including any sacrifices made, or losses incurred by the child. The court will also consider any unjust enrichment or injustice that occurred. However, as a starting point, courts take the position that a child should not be paid for caring for an ailing parent as parents are not paid for raising their children.

A recent case illustrates this principle:

The parent, whose required care was an 88 year old mother of three sons and a daughter who suffered from Alzheimer's disease, dementia and other health issues. Her last stated wish was that she continue to live in her home. Her health issues, however, prevented her from living independently. The daughter moved into the house and provided personal care services to her mother. Unfortunately, the four children could not reach an agreement regarding both their mother's personal care and the care of her property. In the litigation to resolve the issues, the daughter requested compensation on two grounds.

First, the daughter requested compensation for personal care services performed for the previous 2 1/2 years during which she had cared for her mother. She sought the amount of $133,000 which was approximately half the amount that a third party personal care worker would have been paid. Secondly, the daughter requested the amount of $53, 620 annually for providing personal care services on an ongoing basis.

The daughter's request was supported by two of her brother's although the amount of compensation appears to have been in dispute. The brothers took the position that taking care of one's parent is "what you do".

Although it was undisputed that the care provided was "priceless" and improved both her mother's well-being and happiness, the judge was not persuaded that the requested level of compensation should be awarded. It stated:

The hallmark of such compensation must be reasonableness. The services must have been either necessary or desirable and reasonable. The amount claimed must also be reasonable. There must be an evidentiary foundation to support entitlement to the claim and the quantum of the claim.

... compensation may be awarded for personal care where the services performed were a benefit to the incapable person and the amounts claimed are demonstrably reasonable. The reasonableness of the amount of compensation awarded to a Guardian of the person must be assessed in the context of the specific financial circumstances of the incapable person. The amount awarded must not only be reasonable in relation to the services performed, it must be proportional to the means of the incapable person. Its payment should not pose a risk to the overall financial affairs of the incapable person.

However, the court returned to the principle that a child should not be paid to care for a parent. The daughter had admitted that she was not motivated by compensation in making her decision to care for her mother and that she would not stop providing the care services if she was not compensated. The court noted that there was no evidence of a sacrifice made by the daughter or loss suffered in caring for her mother such as leaving employment or a happy, established life.

Moreover, the daughter had not suffered injustice and the mother had not been unjustly enriched by the care services. The daughter was entitled to recognition and thanks for the services provided.

The daughter was awarded $25,000 for services provided during the previous 2 1/2 years (compared to the $133,000 she had requested). Going forward, personal care services would be provided by a service provider and she would be managing the provision of those services for $500.00 a month and room and board.

The Lesson: Courts consider care for a family member to be a moral obligation and, absent personal sacrifice or loss, will expect adult children to care for their incapacitated parents for minimal compensation.

Childs v Childs, 2015 ONSC 4036, https://www.canlii.org/en/on/onsc/doc/2015/2015onsc4036/2015onsc4036.pdf

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