• Don't miss the companion Legal Definition of Parens Patriae.

Parens patriae is not the litigant's favourite word to hear in court. Not just is it Latin, which raises suspicions of a lawyer's-only topic, but access to parens patriae - the court's inherent jurisdiction to make such orders as may be necessary for children within it's jurisdiction barring a statute to the contrary - opens a Pandora's box of judicial discretion.

As pointed out by Justice LaForest J. in Re Eve, the parens patriae jurisdiction is founded on necessity, to intervene for the protection of those who cannot care for themselves, adding:

"... the categories under which the jurisdiction can be exercised are never closed".

parens patriaeIt is a power, like habeas corpus, remnant of another era, when the common law was tough and without the benefit of law from Parliament (statutes); a creature of equity which evolved. It would not do to let the vulnerable children be exempt from the authority of the Court and thus stay in harm's way. Thus a theory of law developed which stated that for the courts, a judge could do whatever he/she felt was required to protect a child save and except if there was a statute which said otherwise.

"Parens patriae is the power of the court to act in the stead of a parent for the protection of a child.... The parens patriae jurisdiction must be exercised in a principled manner; it should not be exercised when other effective alternative remedies exist."1

It is a jurisdiction inherited from England. For example, in Newfoundland:

"The exercise of this ancient right by the Crown (parens patriae) was long ago entrusted to the Lord Chancellor and subsequently to the Chancery Courts which operated under his supervision. This jurisdiction has continued for many centuries and so far as I know has not been supplanted in our law for the common law of England still forms the basis of our jurisprudence."2

In Young v Young, Justice l'Heureux-Dubé of the Supreme Court of Canada, albeit in dissent, wrote:

"The power of courts to rule in the best interests of the child was originally found in the equitable parens patriae jurisdiction of the Courts of Chancery. Although this power was at first only exercised in respect of the property rights of the child, the concept of the best interests of the child was gradually expanded to include the emotional, physical and spiritual welfare of the child."

For more on the history of parens patriae, see Legal Definition of Parens Patriae.

Today, the power is rarely invoked and then, surprisngly and regretably, only reluctantly. Many jurisdictions now have comprehensive child protection statutes which has greatly reduced the need for a court to dust off old law books on parens patriae to make the appropriate order in family law. The scope is traditionally limited to the upper-echelon courts, courts which are said to be superior-level, such as the Court of Queen's Bench or, in British Columbia and other Canadian jurisdictions, the Supreme Court of British Columbia.

Provincial Courts, who have no inherent jurisdiction but rely entirely on statutes to draw their powers, cannot invoke a parens patriae jurisdiction unless a statute so enables.

But still, there are hints about that the pulse of parens patriae is steady.

With parens patriae, the child and protege of equity and the Courts of Chancery, what else could this extract from the 2011 statutes of British Columbia mean but to ensure that the jurisdiction lives on?

"In questions relating to the custody and education of infants, the rules of equity prevail."3

Two States, One Child

There is one area where the heartbeat of parens patriae beats strong and that is disputes which present a conflict of laws. The best example is the presence of a child in a jurisdiction (e.g. Canada) under contested circumstances. Say, Mother lives in Libya, comes to Canada for vacation, decides to stay leaving father and other siblings in Libya. She files for divorce in Canada.

This places the father in a legal no-man's land. How can he defends himself effectively in Canada without accepting jurisdiction? What can a sympathetic court do if it can't find jurisdiction?

Often, litigants are faced with a veritable snakes and ladders of laws related to jurisdiction, some domestic, some territorial and others international but all possibly applying, and a challenge to apply lawyers and judges' alike: hence, "snakes and ladders".

First, and this is true of most situations in which parens patriae might otherwise appear to apply, the Hague Convention often resolves the impasse with a cohesive set of legal steps. Where the other country is a signatory to the Hague Convention, no need for parens patriae.

But a shocking number of states are not on board with the Hague Convention: China, Libya, Pakistan, Iraq, Iran, Saudi Arabia, Syria, Thailand, Singapore, among others.

For these reasons, statements of the law such as this one can, quite literally, save a child's life:

"The court’s inherent parens patriae jurisdiction may be applied to rescue a child in danger or to bridge a legislative gap."4

Parens Patriae

Not much is needed for the door of parens patriae jurisdiction to be unlocked. Mere presence within the court's jurisdiction suffices.5

In a 1965 case of an infant known as "P.", Justice Pearson of the Chancery Court in England wrote:

"The infant may be only temporarily present in this country. It would be unusual for the English court to exercise wardship (i.e. parens patriae) jurisdiction in such cases, but there might be some occasion for it; for example, in the case of emergency to prevent some grievous harm being committed, or in a case where an order of the English court could supplement an order of the foreign court having jurisdiction by virtue of the nationality or residence of the infant."

More recently and in a statement of law that reflects the law in most of Canada, this from Madam Justice Gray of the British Columbia Supreme Court in Sangi v Sangi:

"This court has inherent jurisdiction under its parens patriae power ... to determine custody of and access to a child situate within its jurisdiction."

Tomorrow....

It is surprising how timidly family law lawyers introduce parens patriae in Court, almost apologetically and almost always as a last resort. Funny, because any review of the family law reports over the last hundred years will demonstrate that the courts themselves have pulled this rabbit out of the hat on numerous occasions; not willy nilly, but as circumstances warrant. Yes, it is an ancient, almost mystical and far-reaching power but that's no reason not to wield it on your client's behalf if circumstances warrant.

A lawyer who finds himself or herself with a family law case in which there simply does not seem to be solid statute to set their jurisdictional pillar upon should not be shy to reach for parens patriae as the device is there, alive and kicking, for precisely those situations.

Parens patriae is not a poor or weak answer to an iffy jurisdictional issue in a custody case. Barring a statute which supercedes it, it is a complete answer: the grand-daddy of the Court's jurisdiction, and it stands alone in the judicial arsenal of a superior-level court, always there, whether pleaded or not, and without any statute to support it.

REFERENCES:

  • A.A. v B.B., 2007 ONCA 2 [NOTE 4]
  • Bahjan v. Bahjan, 104 O.R. (3d) 368 (Ontario Court of Appeal, Justice Weiler, 2011 - NOTE 1)
  • Curtis, G., Checkered Career of Parens Patriae: The State as Parent or Tyrant, 25 DePaul L. Rev. 895 (1975-1976)
  • In re P. (G.E.), An Infant, [1965] 1 Ch. 568 at page 588.
  • Law and Equity Act, RSBC 1996, c 253, §11 [NOTE 3]
  • Re D., 17 R.F.L. (3d) 183 (1988) Alberta Provincial Court)
  • Re Eve, [1986] 2 S.C.R. 388
  • Re Hutchings, (1976), 9 Nfld. & P.E.I.R. 438 (Newfoundland Court of Appeal - NOTE 2)
  • Sangi v. Sangi, 2011 BCSC 523
  • Walker, J. and Castel, J.-G., Canadian Conflict of Law, 6th Ed. (Toronto: LexisNexis, 2011), vol. 2, page 18-4 [NOTE 5].
  • Young v Young, [1993] 4 SCR 3