What the Law says about Neglect

Neglect is an act of omission – something that should have been done but was not. For example, it can be the failure of a caregiver to provide for the necessities of life including food, medication, and mobility aids.

If someone is being neglected, there are two general actions that can be taken:

• charging the abuser with one or more criminal offences under the Criminal Code of Canada (this can occur in every province and territory); and
• applying for support orders (these laws are provincial or territorial and vary with each jurisdiction).

Criminal Offences 

Some forms of neglect are criminal behaviour as described in the Criminal Code of Canada, (which applies in all provinces and territories).

The offences listed below cover many of the neglectful actions that can be inflicted on older adults. These are general descriptions of legal concepts.  Examples of criminal offences that may apply to neglectful actions include: failure to provide the necessities of life and criminal negligence.

Failure to provide necessities of life

The term “necessities of life” means those things necessary to preserve life. For example: food, shelter, heat, and medical assistance. Individuals have a positive legal obligation to provide their dependents with such necessities of life. In the case of an older adult who cannot provide for him- or herself, this means that a spouse or other adult caregiver must provide such necessities. A couple who have cohabited or who have recognized each other as spouses will be treated as lawfully married unless there is contrary evidence.

A person is guilty of this offence if his or her failure to provide the necessities of life endangers the life or health of the dependent. However, before coming to a decision, the court will consider whether or not the provider was capable of supporting his or her dependents and whether the provider’s behaviour was a marked departure from the standard of a reasonable person in the same situation as the provider.

Criminal Negligence

If an individual has a legal duty, he or she must perform that duty in a way that does not endanger the lives or safety of others.  Incorrectly performing the duty or failing to perform the duty may be “negligent” (in other words, they can be held responsible for not doing their duty). 

If  the person with the duty behaved even more badly and showed complete disregard for someone’s life or safety by doing something (or not doing something) when there was a legal duty to do, or not do, the act, that person could be more than just “negligent”, they could be “criminally negligent.”  

Depending on how severe the criminal negligence was, it can lead to even greater punishment: for example if it resulted in bodily harm or if it resulted in death.

In addition, criminal negligence can be a form of something called “culpable homicide”. So, if someone dies as a result of an act of criminal negligence, the person who committed the act could be charged with murder.

In order to establish that criminal negligence has been committed it is not necessary to show that the accused intended to be negligent. It is enough to show he or she was indifferent as to what happened. A court will look at the surrounding circumstances of a particular case to determine whether the conduct of an accused was reasonable.

Support Orders - Alberta 

In many provinces, there are laws requiring certain persons to provide support to other specified persons.

In Alberta, for example, every spouse or adult interdependent partner (“AIP”) has an obligation to provide support for the other spouse or adult interdependent partner. To ensure that you are is not being neglected by your spouse or AIP, you can apply for a support order under the Family Law Act. Support includes food, clothing, medical aid, and lodging. The Court may grant such an order of support if one spouse (or AIP) has without sufficient cause refused or neglected to provide the other spouse with the necessaries of life, including food, clothing and shelter, when capable of providing them.  When considering whether you are entitled to support from a spouse or AIP the court will consider the conditions, means, needs, and overall circumstances of both parties. 

To learn about what is involved in applying for a Support Order, talk to a lawyer.

Other provinces have similar laws. For information on laws in other provinces, please see our page of Additional Resources.