He's been barred from his mother's Ontario long-term care home for over a year. Now, he's pushing back

All Paul Ziman wants for Christmas is to be reunited with his mother, after more than a year of not being allowed to visit her in a long-term care (LTC) home.

In September 2023, after a meeting at The Village at St. Clair in Windsor, Ziman was banned from the home through the Ontario Trespass to Property Act (TPA). In a letter to Ziman, the home said he was issued the order because he had demonstrated anger, and it also accused him of previously behaving in a threatening and abusive manner. 

But Ziman, who lives in nearby LaSalle, believes he was banned because he passionately expressed concerns about the care of his mother, Anna Ziman, 81, and had told the home he intended to file a complaint. The home has denied this claim.

"I'm emotionally and mentally drained," said Ziman, who's also his mother's power of attorney.

"It's devastating for both of us, especially for her. She's the one being separated from her family."

Anna lives with Alzheimer's disease. Before the ban, Ziman said, he used to visit her every day.

"She should be around family and I don't think anyone should be able to take you away from family."

Anna's husband, Paul Sr., also hasn't visited her because of his mobility issues. He had previously relied on his son to help him navigate the building.

"It's hurtful. What's happened to us is extremely painful. It shouldn't happen to anyone, not just us, but anyone," their son said. 

He said he has tried to access support through the Long-Term Care Action Line, the Patient Ombudsman, the Windsor Police Service, the Ministry of Long-Term Care and a number of lawyers, but has had no luck in his efforts to lift the order.

Dozens of cases across the province, advocate says

There are more than 100 cases across the province involving people given no-trespass orders, according to advocate Maria Sardelis, who fought her own battle against such an order when she was halted from seeing her mother in 2018.

She now leads the Access to Seniors and Disabled advocacy group in support of families like Zimans. In most cases, she said, individuals are being silenced for speaking out about the care of loved ones.

"They want to shut you down" for advocating, according to Sardelis.

CBC's Marketplace has previously reported on this issue.

The toll of separation is tremendous, Sardelis added.

She said that after the pandemic, it was clear seniors' mental health had suffered irreparable harm from being denied "meaningful social interactions."

"This is an issue that is alarming."

She said many families are afraid of fighting back out of fear of retaliation. 

Sardelis argues use of the TPA in long-term care homes is unlawful. She points to case law established in Cunningham vs. Whitby Christian Non-Profit Housing Corp that says landlords may ban someone from a property, but only if they have not been invited by the tenant.

Sardelis also points to the Fixing Long-Term Care Act's Residents' Bill of Rights, which protects their right to welcome any visitor.

'No consequences' for abusing trespassing act

In March 2021, the Ontario Legislature unanimously passed Voula's Law, named after Sardelis's mother. While not legally binding, it expressed widespread support for the notion that care homes should not be allowed to bar families from seeing loved ones.

The motion was intended to open the door to legislative changes to clarify the rules around this for care homes, but that has yet to happen.

Lise Vaugeois, NDP member of provincial parliament (MPP) for Thunder Bay-Superior North, has been writing letters to every ministry in an effort to end the practice of using the TPA to bar visitors to LTC homes. Vaugeois and Sardelis are also pushing to get police officers across Ontario trained on how to appropriately respond when the TPA has been used against family members in care homes.

"The problem with the Trespass to Property Act is that there's no consequences for abusing it," Vaugeois said, adding there's no due process and the allegations don't need to be proven.

She added there's no law against being crotchety, emotional or "a pain."

Both Vaugeois and Sardelis pointed out that if someone is truly a threat, homes should seek other legal remedies that require due process — such as charging an individual with mischief or disturbance of the peace — where evidence would be required.

Conflicting interpretations

In an email to CBC, a spokesperson for the Ministry of Long-Term Care said the Fixing Long-Term Care Act does give operators discretion to prohibit visitors "if resident safety could be put at risk."

Lilian Bahgat, a supervising lawyer at University of Windsor's Community Legal Aid, agreed that in some extreme cases, homes would have the right to do this. However, Bahgat said, a home should always consult its resident first and have an appeal process in place.

As well, she said, such cases are complicated because of the intersection of different laws covering the rights of the person being banned, the resident themselves and the policies of the home. 

According to Kristian Partington, a spokesperson for Schlegel Villages, which oversees The Village at St. Clair (as well as other Village sites in the province) where Anna Ziman is living, the home has an obligation to keep residents and visitors safe, and visitor restrictions are put in place only in "extremely rare circumstances."

"Any decisions to restrict visitation would be made only if all other reasonable efforts to maintain safety during a visit have been exhausted," he said.

Partington added "no Village would put restrictions on visitors because they express concerns over a resident's care or about the operation of our homes."

He would not say if Anna was consulted on the restriction or if it was expressly outlined how a visitor might appeal a restriction — though Partington said requirements would be communicated with the visitor before visits could resume.

He added that across all 18 Schlegel Villages, with more than 5,000 residents in their care, there have only been a "handful" of visitor restrictions put in place, usually temporarily.

In a letter to Ziman's son that was shared with CBC, the home did offer mediation. Ziman said he was willing to enter mediation, but that plans for it fell through. 

The letter also stated the notice of trespass order would remain in place until he has demonstrated a change in behaviour.

'I believe the system's broken'

The Ontario Patient Ombudsman's office told CBC it reviews complaints about restrictions to visitation in an effort to find a fair resolution, but pointed out it is an office of "last resort," and encourages caregivers and organizations to try to address their concerns directly.

CBC attempted to get Windsor Police Service comment about what role the WPS has in enforcing use of the TPA in long-term care homes and if police ever step in to correct a situation when a home issues a TPA order against a resident's guest. However, the WPS didn't respond by publication time.

A last-resort option to fight the order could be to violate the ban and get a ticket in order to get in before a judge, explained Bahgat.

In most cases, according to Bahgat, the tickets get thrown out, "which is why people are going back to say this is illegal because if it wasn't illegal, [in] those cases ... the person would be fined."

She added that going through that process places pressure and costs on people who are simply trying to take care of their loved ones.

That's how Sardelis got her ban dropped in 2019. She walked into her mother's home, police were called and she was charged under the TPA. Prosecutors ended up dropping the charges.

But Paul Ziman Jr. is afraid of what could happen if he violates the order.

"I believe the system's broken and something needs to be addressed because this continues to happen."

He's heartbroken that in the last year, he's only been able to see his mom during her multiple emergency visits to hospital. He also hasn't been able to connect with her over the phone, he said, noting that she can't speak. His only connection is through a video camera he has set up in her room to see if she's receiving proper care.

However, he holds out hope he'll be reunited with her, in person, in time for Christmas.

"I'd tell her that I love her and I miss her — and I'd give her a hug."