January 7, 2007
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In Part two of this series highlighting the challenges and strategies of helping an older adult remain independent, John Johnson examines the different types of retirement options. Part one appeared in the March/April 2007 issue of Fifty-Five Plus.

As everybody knows, there is a wide spectrum of housing options available to seniors. Some are able to stay in their own homes with or without onsite health and social services and at the other end of the spectrum are long-term care facilities, which can accommodate seniors with varying degrees of physical or mental disability.

Spanning the middle are retirement homes, which can mean anything from furnished apartment suites and restaurant-style meal service to facilities with nursing stations, shared accommodations and assisted care. Retirement homes cover the widest range of needs for seniors. They are not regulated as strictly as nursing homes, but they fall under the definition of “care home” pursuant to the Residential Tenancies Act.

“Care home” means a residential complex that is occupied or intended to be occupied by persons for the purpose of receiving care services, whether or not receiving the services is the primary purpose of the occupancy. “Care services” means health care services, rehabilitative or therapeutic services or services that provide assistance with the activities of daily living.

The services generally fall into two categories. Firstly, nursing care, administration and supervision of medication as prescribed by a doctor, assistance with bathing, personal hygiene and ambulation.

Secondly, they may also include recreational and social services, housekeeping and laundry services and transportation assistance. There is no requirement for a landlord of a retirement home to provide any of these services, however, if it provides two of these services it comes under the definition of a care home under the Residential Tenancies Act and the rules and regulations under the at statute will apply to the retirement home. It is the offering of such services that will bring the home under the legislation and not the actual needs of the individual.

The services provided by a retirement home are usually bundled by the landlord and sold in packages depending upon the need of the prospective resident. It is important to distinguish the rent to be paid from the cost of the care service package, as different rules apply to each. In a retirement home, the rent does not include charges for care services and meals. Rent can only be raised once a year on 90 days’ written notice to the tenant. Charges for care services and meals, by contrast, can be raised any time and as often as the landlord desires upon 90 days’ written notice to the tenant.

A written agreement is mandatory for every tenancy in a retirement home.It must clearly set out the rent as opposed to the charges for care services. A tenant can be evicted for failure to pay rent but cannot be evicted for nonpayment of care services.There are no provincially regulated standards for staffing, nutrition or health services in retirement homes, but some municipalities set standards relating to nutrition and linen changes.

Every landlord of a care home must provide a Care Home Information Package (CHIP) before entering into a tenancy agreement with a prospective tenant. The Care Home Information Package must include detailed information:

  • Types of living arrangements available in the care home.
  • Alternate care packages for care services and meals.
  • Other available meals and services and their costs.
  • Minimum staffing levels and qualifications of staff.
  • Details of any personal emergency response system that may be provided.
  • Complaint procedure for tenants.

Tenancy agreements only come into effect five days after they are signed by the tenant in order to provide for a cooling off period in the event that the tenant wishes to consult with a third-party advisor.The tenancy agreement can be cancelled by written notice to the landlord within the five-day period after the signing of the tenancy agreement. A tenant may terminate a tenancy in a care home at any time on 30 days’ written notice to the landlord.

A landlord may apply to evict a tenant from a care home if the tenant no longer requires the level of care provided by the landlord or the tenant requires a level of care that the landlord is not able to provide. This application is made to the Landlord and Tenant Board, which must be satisfied that appropriate alternate accommodation is available for the tenant.The landlord has the additional burden of satisfying the board that the addition of community-based services for the tenant will not meet the tenant’s needs.

On a practical basis, tenants who require more care must consent to admission to a long-term care facility. If the tenant refuses to apply for such admission, then the landlord will be unable to demonstrate that alternate accommodation is available to the tenant. Except in the case where long-term care is obviously required in an appropriate facility or a hospital, many landlords will simply offer the additional care themselves or solicit such care from community-based services. The additional cost of these services may be too much of a burden to the tenant, who will then decide to transfer voluntarily.

When a tenancy agreement is entered into with nursing services, it is important to define clearly what is being offered and during what hours. For instance, if a tenant is too ill to dine in the main dining room, is the tenant’s need to have assistance with feeding in the tenant’s room covered by the tenant’s package? One might also ask how many registered nurses are on duty and during what hours. Licensed practical nurses and nurses’ aids are more commonly available around the clock, whereas a registered nurse may only be available on weekdays during normal working hours. Physicians are not required to be in attendance at a care home but are usually on call or make weekly visits. Equipment that is required to prolong the stay of a tenant in a care home is invariably an extra charge. Such equipment could include anything from oxygen supports to diapers to hydraulic lifting equipment.

Regrettably, some seniors who remain quite physically capable will sometimes subside into various levels of dementia and require a different kind of supervision. It is important to verify the level of care that is available to dementia patients. One might ask how many staff are to be present at all times and whether or not there is a safe environment for both the patient and the staff. Are residents allowed to move around or are they restrained in any way? Are the premises secure for both ingress and egress? For these reasons, a long-term care facility is often the appropriate choice for persons with more advanced dementia, but waiting times can be significant. Retirement homes with facilities for the accommodation of dementia will usually offer their services to accommodate their residents whose onset of dementia takes place while they are regular residents of the retirement home.

Long-term care facilities are primarily hospital-like in the kind of care they provide.They are not covered by the Residential Tenancies Act but are subject to the more stringent regulations applicable to hospitals. Determination of eligibility for long-term care facilities, whether public or private, is always made through the placement coordination services provided by Community Care Access Centres. Persons cannot be admitted to long-term care facilities without the authorization of a placement coordinator. Operators of long-term care facilities must admit a person so authorized unless the physical facilities or staff are unable to meet the person’s circumstances or needs.

Eligibility for admission to a long-term care facility is only approved if community-based services or other alternate arrangements are not sufficient to meet the individual’s needs.This is truly a facility of final recourse. Securing admission to a long-term care facility often falls to a member of the family to facilitate and in this regard most institutions will look for papers authorizing that person as a guardian or an attorney for personal care.

Publications with more information are available from the Ontario government website or any Community Care Access Centre.

John Johnson is a partner with the law firm of Nelligan O’Brien Payne (www.nelligan.ca), with offices in Ottawa, Kingston, Vankleek Hill and Alexandria.

[This article was originally published in the July/August 2007 issue of Fifty-Five Plus Magazine.]

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.