Parenthood Is a Fiduciary Relationship

90 Pages Posted: 27 Aug 2019 Last revised: 27 Mar 2020

See all articles by Lionel Smith

Lionel Smith

McGill University, Faculty of Law, Paul-André Crépeau Centre for Private and Comparative Law; University of Oxford - Faculty of Law

Date Written: July 24, 2017

Abstract

Canadian courts have held that parents stand in a fiduciary relationship with their children. Some commentators take the view that this is an inappropriate and unwarranted extension of a set of concepts that were originally elaborated in the context of the management of property rights and other pecuniary interests. The goal of this paper is to assess the characterization of parents as fiduciaries in the light of recent scholarship on fiduciary law. I argue that while there are significant differences between the parent-child context and more established fiduciary categories, nonetheless the characterization of the parent as a fiduciary towards their child captures a central, indeed a defining, element of the parent-child relationship, which is also a characteristic element of all established fiduciary relationships: namely, the possession of legal powers that are held in a managerial or other-regarding capacity, for the benefit of another person. Every aspect of the traditional property-based fiduciary relationship finds its counterpart in the juridical relationship between a parent and his or her minor child. The ability of a parent to take account of their own interests in relation to some exercises of the parent’s decision-making powers is also found in many established fiduciary relationships. The recognition of parenthood as a fiduciary relationship leads to a better understanding of fiduciary relationships, because it clarifies how such relationships are constituted, and it clarifies that they extend to any situation where one person is empowered and authorized to look after the interests of another, whether those interests be financial or entirely personal.

Keywords: fiduciary relationships, parenthood, family law, parental authority

JEL Classification: K00, K1, K10, K19, K36

Suggested Citation

Smith, Lionel, Parenthood Is a Fiduciary Relationship (July 24, 2017). University of Toronto Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3007812 or http://dx.doi.org/10.2139/ssrn.3007812

Lionel Smith (Contact Author)

McGill University, Faculty of Law, Paul-André Crépeau Centre for Private and Comparative Law ( email )

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HOME PAGE: http://www.mcgill.ca/law/about/profs/smith-lionel

University of Oxford - Faculty of Law ( email )

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