Sometimes the Court will be called upon to exercise its parens patriae jurisdiction to fashion a remedy where existing legislation does not suffice.
Re Eve (1986), 1986 CanLII 36 (S.C.C.) provides a fascinating history of the origins, (“lost in the mists of antiquity,”) source, and meaning of the Court’s parens patriae jurisdiction: “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.”
So it should not be surprising that guardianship matters may give rise to the exercise of this jurisdiction. Such was the case in Re Binder (Patients Property Act) 2022 BCSC 990. Here, the incapable person. Johann, resided in Switzerland but owned real property in B.C. He was predeceased by his wife and survived by two children: Hans and Ruth, both also resident in Switzerland. Hans, with Ruth’s consent and unopposed by the B.C. PGT, petitioned the British Columbia Supreme Court to have his father declared incapable and to be appointed as committee for Johann’s estate in B.C., in order to sell the properties.
The Court had to consider whether the evidence of a Swiss medical practitioner could be considered under the parens patriae jurisdiction to allow for the appointment of Hans as Committee for his father’s B.C. estate (the Patients Property Act in B.C. did not allow for a capacity assessment by a foreign health care practitioner). The Court reasoned:
“…the threshold required before the court can consider using its parens patriae jurisdiction as a basis to appoint a committee is the need for a lacuna in the legislative framework for the protection of such persons.
I am satisfied on the evidence before me that there is such a gap in the legislative framework of the PPA for protecting an individual such as Johann. There is no mechanism for recognizing the order of the Swiss authority and given Johann’s circumstances, specifically his ill health and his inability to attend examination by doctors in British Columbia, he cannot avail himself of the procedure provided by the PPA.“
The Court accordingly granted the relief sought so that Hans could sell the properties and repatriate the money to Switzerland to fund his father’s care.
Thanks for reading,