Garner v. Garner – Can you obtain a court ordered visitation schedule with an elderly parent?


Several years ago, the B.C. Court of Appeal, in Temoin v. Martin, 2012 BCCA 250 [Temoin] discussed the application of a time-honoured principle that English and subsequently Canadian courts had established and which became known as the Court’s parens patriae jurisdiction. Historically, the parens patriae doctrine (which literally means “parent of the country”) vested the Court with the authority to make orders in the best interests of children that were in need of protection. Temoin clarified that the Court’s powers under the parens patriae jurisdiction can also be invoked to make orders necessary for the protection of elderly individuals that have not been formally declared incompetent or incapable of managing their affairs. In Temoin, the Court held that in appropriate circumstances it could make an order compelling an elderly individual to submit to a medical capacity assessment. We provide a detailed discussion of the factual background and the Court’s decision in Temoin in our 2012 blog post discussing “Court Ordered Examinations to Determine Incapacity in British Columbia”.

Since 2012, the Temoin decision has received very little judicial consideration. However, a recent decision of the BC Supreme Court, Garner v. Garner, 2015 BCSC 109 [Garner], provides an interesting illustration of how lawyers, relying on the Temoin decision, may seek to expand even further the circumstances in which the Court’s protective powers may be invoked in relation to elderly individuals.

In Garner, the plaintiffs invoked the Court’s parens patriae jurisdiction for the purpose of fixing a visitation schedule with their 90-year old mother, Mrs. Garner. Mrs. Garner was suffering from dementia and, due to her health, was living with her daughter. Mrs. Garner also had three sons. As the siblings were unable to agree on a visitation schedule, the sons sought a court order granting them specific visitation rights with their mother.

The evidence showed that Mrs. Garner was well cared for and that she experienced considerable anxiety during visits with her sons, which adversely affected her health. Due to her anxiety, Mrs. Garner herself advised her doctor that she did not want any more visits with her sons. After reviewing the Temoin decision, the Court determined that its parens patriae jurisdiction must only be exercised for the protection of the individual on behalf of whom the protection of the Court is sought, not for the benefit of any other party. In this case, the medical evidence indicated that it would not be in Mrs. Garner’s best interests to grant the visitation rights sought by her sons. Furthermore, there was no evidence indicating that the sons’ inability to visit their mother in the fashion and frequency with which they desired had caused or would cause Mrs. Garner any harm. As such, the orders sought were simply not necessary for Mrs. Garner’s protection.

The Garner decision draws a distinction between the Court’s power to protect persons who are otherwise, by reason of infirmity, unable to protect themselves, and the Court’s ability to dictate what those persons may do with their time where there is no presence or apprehension of injury to person or property. It is clear that the Court’s protective powers cannot be invoked to infringe the autonomy of vulnerable adults if the court is of the view that the primary beneficiary of the order sought would be a third party.