Several years ago, the B.C. Court of Appeal, in Temoin v.
Martin, 2012 BCCA 250 [Temoin] discussed the
application of a time-honoured principle that English and
subsequently Canadian courts had established and which became known
as the Court's parens patriae jurisdiction.
Historically, the parens patriae doctrine (which literally
means "parent of the country") vested the Court with the
authority to make orders in the best interests of children that
were in need of protection. Temoin clarified that the
Court's powers under the parens patriae jurisdiction
can also be invoked to make orders necessary for the protection of
elderly individuals that have not been formally declared
incompetent or incapable of managing their affairs. In
Temoin, the Court held that in appropriate circumstances
it could make an order compelling an elderly individual to submit
to a medical capacity assessment. We provide a detailed discussion
of the factual background and the Court's decision in Temoin in our 2012 blog post discussing "Court
Ordered Examinations to Determine Incapacity in British
Since 2012, the Temoin decision has received very
little judicial consideration. However, a recent decision of the BC
Supreme Court, Garner v. Garner, 2015 BCSC 109
[Garner], provides an interesting illustration of how
lawyers, relying on the Temoin decision, may seek to
expand even further the circumstances in which the Court's
protective powers may be invoked in relation to elderly
In Garner, the plaintiffs invoked the Court's
parens patriae jurisdiction for the purpose of fixing a
visitation schedule with their 90-year old mother, Mrs. Garner.
Mrs. Garner was suffering from dementia and, due to her health, was
living with her daughter. Mrs. Garner also had three sons. As the
siblings were unable to agree on a visitation schedule, the sons
sought a court order granting them specific visitation rights with
The evidence showed that Mrs. Garner was well cared for and that
she experienced considerable anxiety during visits with her sons,
which adversely affected her health. Due to her anxiety, Mrs.
Garner herself advised her doctor that she did not want any more
visits with her sons. After reviewing the Temoin decision,
the Court determined that its parens patriae jurisdiction
must only be exercised for the protection of the individual on
behalf of whom the protection of the Court is sought, not for the
benefit of any other party. In this case, the medical evidence
indicated that it would not be in Mrs. Garner's best interests
to grant the visitation rights sought by her sons. Furthermore,
there was no evidence indicating that the sons' inability to
visit their mother in the fashion and frequency with which they
desired had caused or would cause Mrs. Garner any harm. As such,
the orders sought were simply not necessary for Mrs. Garner's
The Garner decision draws a distinction between the
Court's power to protect persons who are otherwise, by reason
of infirmity, unable to protect themselves, and the Court's
ability to dictate what those persons may do with their time where
there is no presence or apprehension of injury to person or
property. It is clear that the Court's protective powers cannot
be invoked to infringe the autonomy of vulnerable adults if the
court is of the view that the primary beneficiary of the order
sought would be a third party.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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On March 31, 2014, BC's new Wills, Estates and Succession Act1 ("WESA") will come into force. WESA introduces new protections for beneficiaries of estates that are in danger of being disputed or deemed ineffective by a court.
It is not uncommon for parents to provide monetary gifts to their adult children. Parents may wish to help their child with a down payment on a property, or help pay out their child's existing mortgage.
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