Parens Patriae Jurisdiction of the Courts

Parens PatriaeRe Senini 2016 BCSC 2299 invoked the  the parens patriae  jurisdiction of the courts to declare an adult no  longer incapable of handling her affairs.

The parens patriae jurisdiction is  founded on necessity, namely the need for the courts to act for the protection of those who cannot care for themselves. It is the power of the courts to act as the guardian for those who are unable to care for themselves such as children or disabled individuals.

 

The court found  a gap in the legislation of the Adult Guardianship act that occurred after a declaration of incapability was rescinded from the Public Guardian and Trustee in favor of the sister of the patient as her private committee. The latter declaration did not include a declaration of incapability.

The court found that under section 37(3) and (4) of the said act, a certificate of incapability is canceled when a private committee is appointed under that act.

If the adult has not been declared to be incapable, the adult becomes capable and there is no determination of incapability for the court to reject and no statutory guardianship for the court to end.

The court bus invoked its exercise of parens patriae jurisdiction to declare the adult no longer incapable.

 

[28]         There is a gap in the legislation for declaring an adult to no longer be incapable in circumstances where the adult is declared incapable under a Certificate of Incapability (s. 32, AGA), the Certificate of Incapability is cancelled by the Court appointing a private committee under the PPA (ss. 37(3)(d) and 37(4), AGA) without at the same time declaring the adult incapable, and then the adult becomes capable.

[29]         With the Certificate of Incapability being cancelled by operation of the legislation, there is no determination of incapability for the Court to reject and no statutory property guardianship for the Court to end, under s. 35(4)(b) of the AGA, and declaring a person to no longer being incapable is not one of the declarations it is open to the Court to make under s. 35 of the AGA.

[30]         In such circumstances it would be appropriate for the Court to exercise its parens patriae jurisdiction to declare the adult no longer incapable.  If it were otherwise, there would be no other mechanism for the individual to receive confirmation of his or her capacity.

[31]         An appeal to the parens patriae jurisdiction of the Court is the equivalent of an appeal to its inherent jurisdiction; namely, a jurisdiction which can be exercised when no rule or statute explicitly confers jurisdiction.

[32]         The parens patriae jurisdiction of the Court is often invoked and exercised in matters involving the welfare of minors.  However, the jurisdiction has frequently been exercised in respect of a person incapable by reason of mental incapacity of acting in his or her own interests.  It is frequently invoked where consent to a medical procedure in respect of a mentally impaired person is required.

[33]         The leading case is E. v. Eve, [1986] 2 S.C.R. 388, in which the Court was asked for an order authorizing a non-therapeutic sterilization of a mentally impaired adult daughter by her parent.  The issue was whether the Court had jurisdiction to grant consent, and if so, whether the authority flowed from the parens patriae power.

[34]         The historical origin of the jurisdiction is set out in paras. 31 to 55 of that judgment.  The headnote to the case summarizes the passages found at paras. 72 to 77 of that judgment and I adopt that headnote as an accurate summary of the nature of the jurisdiction, and the manner in which it should be exercised.

[35]         In the most recent citation of the case in a British Columbia court, namely Forliti v. Forliti, 2016 BCSC 743, Skolrood J. held at para. 306 that his authority to impose conditions and restrictions upon the rights, privileges or powers of a committee was to be found in s. 16 of the PPA.  But he also said, “In the alternative, if s. 16 is not broad enough to authorize these conditions and restrictions, I would invoke my parens patriae jurisdiction to include such provisions in the committeeship scheme pursuant to a legislative gap.”  I agree this alternative approach was available.

[36]         It is thus appropriate for the Court to exercise its parens patriae jurisdiction in the unique circumstances of this particular case.  In doing so, the Court notes that similar to s. 4 of the PPA, the affidavits of two medical practitioners setting out their opinion that the person is no longer incapable should be presented to the Court for consideration in the exercise of its parens patriae jurisdiction

 

The headnote of the E v Eve decision of the Supreme Court of Canada ( 1986) 2 SCR 388 states:

 

The parens patriae jurisdiction. From the earliest time, the sovereign, as parens patriae, was vested with the care of the mentally incompetent. This right and duty, as Lord Eldon noted in Wellesley v. Duke of Beaufort [(1827), 2 Russ. 1, 38 E.R. 236] . . . at 243 is founded on the obvious necessity that the law should place somewhere the care of persons who are not able to take care of themselves. In early England, the parens patriae jurisdiction was confined to mental incompetents, but its rationale is obviously applicable to children and, following the transfer of that jurisdiction to the Lord Chancellor in the 17th century, he extended it to children under wardship, and it is in this context that the bulk of the modern cases on the subject arise. The parens patriae jurisdiction was later vested in the provincial superior courts of this country, and in particular, those of Prince Edward Island.

The parens patriae jurisdiction is . . . founded on necessity, namely the need to act for the protection of those who cannot care for themselves. The courts have frequently stated that it is to be exercised in the “best interest” of the protected person, or again, for his or her “benefit” or “welfare”.

 

The situations under which it can be exercised are legion; the jurisdiction cannot be defined in that sense. As Lord MacDermott put it in J. v. C., [1970] A.C. 668, at 703, the authorities are not consistent and there are many twists and turns, but they have inexorably “moved towards a broader discretion, under the impact of changing social conditions and the weight of opinion . . . ” In other words, the categories under which the jurisdiction can be exercised are never closed. Thus I agree with Latey J. in Re X [(a minor), [1975] 1 All E.R. 697] . . . at 699, that the jurisdiction is of a very broad nature, and that it can be invoked in such matters as custody, protection of property, health problems, religious upbringing and protection against harmful associations. This list, as he notes, is not exhaustive.

What is more, as the passage from Chambers cited by Latey J. underlines, a court may act not only on the ground that injury to person or property has occurred, but also on the ground that such injury is apprehended. I might add that the jurisdiction is a carefully guarded one. The courts will not readily assume that it has been removed by legislation where a necessity arises to protect a person who cannot protect himself.

. . . the jurisdiction may be used to authorize the performance of a surgical operation that is necessary to the health of a person, as indeed it already has been in Great Britain and this country. And by health, I mean mental as well as physical health. In the United States, the courts have used the parens patriae jurisdiction on behalf of a mentally incompetent to authorize chemotherapy and amputation, and . . . in a proper case our courts should do the same. Many of these instances are related in Strunk v. Strunk, 445 S.W. 2d 145, where the court went to the length of permitting a kidney transplant between brothers. Whether the courts in this country should go that far, or as in [Matter of Quinlan, Re 355 A. 2d 647 (N.J. S.C., 1976)] . . . permit the removal of life-sustaining equipment, I leave to later disposition.

Trevor Todd

Trevor Todd is one of the province’s most esteemed estate litigation lawyers. He has spent more than 40 years helping the disinherited contest wills and transfers – and win. From his Kerrisdale office, which looks more like an eclectic art gallery than a lawyer’s office, Trevor empowers claimants and restores dignity to families across BC. He is a mentor to young entrepreneurs and an art buff who supports starving artists the world over. He has an eye for talent and a heart for giving back.

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