Lionel Smith, ‘Parenthood Is a Fiduciary Relationship’

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. This 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 traditional fiduciary categories, nonetheless the characterization of the parent as a fiduciary towards his or child captures a central, indeed a defining, element of the parent-child relationship, which is also a defining element of more traditional fiduciary relationships: namely, the possession of legal powers that are held in a managerial or other-regarding capacity, for the benefit of another person.

Smith, Lionel, Parenthood Is a Fiduciary Relationship (July 24, 2017).

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