Seniors' homes using 'trespass orders' to ban family members from visiting
Act used illegally to stifle people from speaking out about conditions, Ontario lawyer says
Mary Sardelis wasn't allowed to visit her 97-year-old mother's Ottawa retirement home for almost a year.
Sardelis lives less than five minutes away from her mother Voula, but the home prevented Sardelis from seeing her, using sections of Ontario's trespass law.
"For 316 days … I was banned from entering the home," she said. "You have no idea of the toll it's taken."
She could call, but her mother's hearing is poor and she often couldn't understand what her daughter was saying.
"All I could hear was her fears or concerns. And I couldn't even soothe her."
Sardelis was banned from City View Retirement Community under Ontario's Trespass to Property Act. So-called trespass orders allow private property owners to limit who can come onto the premises and, some experts say, are being increasingly used to keep out family members who complain about conditions in retirement and long-term care homes.
It's difficult to know how often homes ban or restrict family members, since families have to breach the trespass order for there to be any record of it.
WATCH: Daughter banned from visiting 97-year-old mother at retirement home.
Jane Meadus, a lawyer at the Advocacy Centre for the Elderly in Toronto, estimates she gets calls about trespass orders in long-term care homes and retirement homes at least once a week.
"Generally, what happens is that it's a family member who is in visiting their family member and they get upset," she said.
Marketplace reviewed over a dozen cases of family members from provinces across Canada who say they believe the homes were trying to silence them for advocating on behalf of their loved ones.
"The person maybe raises their voices and the home says, 'Well, that's it. You're not coming anymore, because we see you as a danger,'" said Meadus.
WATCH: Voula Sardelis waves to her daughter on the sidewalk outside her retirement home.
"If [the complainants] were really a danger, they should be calling the police. So if they were actually threatening someone, that's what they should be doing,
"But instead, what they're doing is to try to control their premises, trying to stifle people from complaining and trying to stifle people from speaking out on behalf of these very vulnerable seniors."
The home told Marketplace they prohibited Sardelis from visiting her mother because she was "aggressive" towards staff. But she believes she was banned for speaking out and filing complaints about the living conditions at the home which she felt were intolerable.
Meadus said in Ontario, homes do not have the right to ban residents' visitors. When it comes to retirement homes, residents who pay to live on the property have a right to receive visitors they choose "without interference," she said, citing case law established in Cunningham vs. Whitby Christian Non-Profit Housing Corp.
That case found that banning guests of a tenant would contravene Section 23 (1) of the Ontario Conveyancing and Law of Property Act, which entitles a tenant to "quiet enjoyment" of their space.
Meadus says in the case of long-term care, they have the same rights under Section 3 (14) of the Long-Term Care Homes Act, which states that every resident has the right "to receive visitors of his or her choice … without interference."
The home says it "disagrees" with that analysis and that it has the right to ban anyone deemed to have breached its "zero-tolerance abuse" policy.
Meadus has been invited to train Toronto's police officers on how to deal with calls from retirement and long-term care homes that try to use Trespass to Property Act against family members.
"When we talk to police officers, they're surprised and they're usually very grateful that we've provided that information to them. That's not something that they're trained for generally," she said.
Someone had to do something. Otherwise, it will just keep going on and on and on.- Mary Sardelis
Meadus says often the families she has heard from have negotiated for restricted visits, agreeing to only come into the home during certain hours or under certain conditions.
That was the case for Susan Macaulay, who says her mother's Quebec long-term care home threatened to ban her, and ultimately issued restrictions on her visits.
"I was a thorn in the side of the managers," she said. "They threatened on several occasions to not allow me to see my mother."
'She would never know'
Macaulay said the home sent her a letter stating that she would only be allowed to visit between 1 p.m. and 3 p.m. — the two hours of the afternoon when her mom was normally asleep. She said she tried to explain to her mother, who had dementia, why she wasn't going to be visiting as much.
"If I don't come to visit, it's not because I don't want to," she recalls telling her mother.
"I thought that if they stopped me from coming to see her, she would never know why I didn't come."
Macaulay faced restrictions on her visits to her mother for 18 months, until her mother died.
In Ontario, the Trespass to Property Act doesn't allow people who have been issued a ban to fight it. Once a notice or verbal warning is given to someone on the property, the only way to fight the ban is to go back to the property and wait for the owner to call the police.
Meadus says most of the time, families don't challenge the order, because they would have to get arrested to do so.
'Had to do something'
But for Mary Sardelis, her fear of being arrested wasn't enough to stop her. In March 2019, she went into the retirement home even though she was banned and waited for the home to call the police and arrest her. She hoped that this way, she would be able to bring the matter before a judge.
The police were called, and Sardelis was charged under the Trespass to Property Act.
"Someone had to do something," she said. "Otherwise, it will just keep going on and on and on."
But in October, Sardelis found out she wouldn't have to go to court after all. Her lawyer met with the home's lawyers, after which the prosecutors dropped the charges. The home told Marketplace it will let her visit as long as she follows their rules.
Although her battle is seemingly over, Sardelis said on behalf of her mother, she'll continue to advocate for other family members in her community who have been banned from visiting their loved ones.
"I'll do whatever it takes to make sure it doesn't happen to anybody else," she said. "I will not stop."
If you have a story about seniors' homes in Canada you would like to share with Marketplace, contact Katie Pedersen.