In Hughes v Hughes 2019 BCSC 1109 a daughter sued her parents for breach of fiduciary duty for forcing her to have an abortion when she was 17 years of age.
The claim was dismissed for being outside of the statute of limitations, but the court reviewed the leading case relating to the nature of parental fiduciary duty, as set out in KLB v British Columbia 2003 SCC 51 at paragraphs 48-49:
48. “ What then is the content of the parental fiduciary duty? This question returns us to the cases in the wrong at the heart of breaches of this duty. The traditional focus of breach of fiduciary duty is breach of trust, with the attendant emphasis on disloyalty and promotion of one’s own or others’ interests at the expense of the beneficiary’s interests. Parents stand in a relationship of trust and owe fiduciary duties to their children. But the unique focus of the parental fiduciary duty, as distinguished from other duties imposed on them by the law, is breach of trust. Different legal and equitable duties may arise from the same relationship and circumstances. Equity does not duplicate the common-law causes of action, but supplements them. Where the conduct evinces breach of trust, it may extend liability, but only on that basis. In Norberg v Wynrib (1992) to SCR 226. it was stated in negligence and contract, the parties are taken to be independent and equal actors, concerned primarily with their own self-interest. The essence of the fiduciary relationship, by contrast, is that one party exercises power on behalf of another, and pledges himself or herself to act in the best interests of the other. “
49. “ I have said that concern for the best interests of the child informs the parental fiduciary duty. But the duty imposed is to act loyally, and not to put one’s own or others’ interests ahead of the child’s in a manner that abuses the child’s trust. This explains the cases referred to above. The parent who exercises undue influence over the child in economic matters for his own gain has put his own interests ahead of the child’s, in a manner that abuses the child’s trust in him. The same may be said of the parent or uses a child for his sexual gratification or parent who, wanting to avoid trouble for herself or her household, turns a blind eye to the abuse of a child by her spouse. The parents need not, as the Court of Appeal suggested in the case at bar, be consciously motivated by a desire for profit or personal advantage; nor does it have to be her own interests, rather than those of a third-party, that she puts ahead of the child’s.
It is rather a question of disloyalty – of putting someone’s interests ahead of the child’s in a manner that abuses the child’s trust. Negligence, even aggravated negligence, will not ground parental fiduciary liability, unless it is associated with breach of trust in this sense.
