A court’s authority to make certain orders or decisions is not always founded in legislation or established case law. In the right circumstances, the court may find its authority from its inherent jurisdiction to do certain things, such as preventing abuse of process, controlling procedure, or protecting vulnerable parties. One such example is the parens patriae jurisdiction, which is founded on necessity and the need to act for the protection of those who cannot care of themselves.[1] As the definition details, the court may choose to exercise this jurisdiction where it feels that it is necessary to do so to protect a party or someone who cannot protect or care for themselves. This is what the court chose to do in the recent case of Farren v. Walters et al., 2026 ONSC 692.
Background
In Farren, the deceased died on January 30, 2019 with a last will and testament (the “Will”). The named estate trustee in the Will declined to act, and the alternate estate trustee obtained a certificate of appointment of estate trustee in November 2019.
The deceased was survived by his daughter, the applicant, and his common law spouse, the respondent. The respondent is also the applicant’s mother. Under the terms of the Will, there were gifts made to various charities and the residue of the estate was left to the applicant in a trust. The estate trustee of the estate was also the trustee of the trust.
The terms of the trust were as follows: (1) the applicant was entitled to certain monthly amounts (which, until she turned 21 were to be paid to her mother, the respondent), (2) at certain points prior to the applicant’s 35th birthday, certain portions of the capital of the trust were to be paid out to her, and (3) the trustee also had the discretion to encroach on capital for the applicant’s support, maintenance, education and advancement in life.
As a result of the respondent being left out of the Will, she brought a claim for dependant’s relief. The claim was ultimately settled and as a consequence of the settlement, the current estate trustee at that time (who was named as the alternate in the Will) was discharged from their duties and the respondent was appointed as the succeeding estate trustee and therefore as the new trustee of the applicant’s trust (in November 2021).
The Respondent’s Mental Decline
Prior to the hearing of this matter, the applicant deposed that the respondent had recently experienced a mental decline due to the fact that she had stopped taking medication for her schizophrenia. The respondent had experienced psychosis resulting from her schizophrenia in the past and her condition required regular medication.
After the respondent stopped taking her medication, her behaviour changed. For example, she withdrew from social and career activities, she was exhibiting erratic and paranoid behaviour, she added padlocks to the doors in her house, she was shredding paperwork because she was concerned about people stealing her information, and she was spending lavishly despite leaving her job and appearing to have little or no source of income.
In addition to the above, the respondent’s change in behaviour extended to her actions as estate trustee and trustee of the applicant’s trust:
- She had been taking estate funds for her own personal use which she previously used to fund the applicant’s car insurance;
- She stopped making the payments towards the applicant’s car insurance and the applicant was forced to pay the premiums on her own;
- Although at the time of the hearing the estate funds were no longer being used to pay for the applicant’s car insurance, the respondent continued to remove those funds monthly from the estate;
- She failed to meet her other duties as estate trustee, such as filing tax returns for the estate; and
- She did not honour the repayment agreement she reached with the applicant when she had previously borrowed funds from the estate.
The estate was not a particularly large estate. On the deceased’s death, the estate had a value of approximately $618,000. When the respondent took over as succeeding estate trustee, there was approximately $443,000 left in the estate and at the time of the hearing, that amount had decreased by approximately $200,000. The problem was that this substantial depletion of estate funds was coupled with no evidence of material capital encroachments for the applicant’s benefit. In other words, it may have been the case that some or all of those funds had been taken by the respondent personally, despite her not being entitled to those funds.
Between April 2025 and February 2026, the respondent was hospitalized twice under a “Form 2”, which is commonly referred to as an Order for Examination to bring a person to a hospital for a psychiatric assessment. The respondent remained in the hospital at the time of the hearing, and the hospital indicated that they hoped to keep the respondent in the hospital until they felt she was capable of managing her own treatment.
After the respondent was served with the application (and before her recent stint in the hospital), she consented to being removed as estate trustee and trustee of the trust. The applicant originally sought for her half-sister to replace the respondent permanently. Importantly, there needed to be someone who had the authority to make regular payments from the trust to the applicant so that she could meet her living expenses and to deal with the ongoing monetary consequences of the unfiled tax returns.
However, given the respondent’s recent hospitalization at the time of the hearing, the applicant only sought to have her half-sister appointed as interim succeeding estate trustee and interim trustee of the trust. The applicant noted that the respondent was no longer able to appear at the hearing and her interests were not represented given that her capacity was in question.
The Court’s Analysis
The court found that it had the authority to make an order appointing the applicant’s half-sister as the interim succeeding estate trustee of the estate and interim succeeding trustee of the trust based on its parens patriae jurisdiction. The court found that the “categories under which the [parens patriae] jurisdiction can be exercised are never closed”, that the jurisdiction is broad, and can be invoked where “a necessity arises to protect a person who cannot protect himself.”[2]
The court was satisfied that the appointment of an interim succeeding estate trustee and interim succeeding trustee was necessary to protect the applicant’s interest which she could not protect herself as she did not have any power under her trust – a trustee was needed. If the applicant stopped receiving payments from the trust, her personal security and shelter were at risk. Similarly, the appointment of an interim succeeding estate trustee meant that the risk of loss due to the penalties and interest on the unfiled tax returns could be avoided or mitigated. The intentions of the testator would have been defeated if there was no estate trustee or trustee in place to administer the estate and trust.
Ultimately, the court invoked its parens patriae jurisdiction to suspend the respondent’s authority to act in her capacities as related to the estate and trustee for the time being. The court recognized that the respondent was entitled to participate in the process but could not do so while there was uncertainty about her status and capacity. The court found that the half-sister was an appropriate replacement in the interim.
Takeaway
Farrens stands as a reminder that along with the court’s other duties and obligations, it has a responsibility to protect the interests of those who cannot protect themselves, whatever the reason may be. The parens patriae jurisdiction is in place to ensure that the court is able to do that, and to ensure that the courts may not be restricted by legislation or case law that would otherwise render them unable to protect those people.
[1] N. v. F., 2021 ONCA 614, at para. 96.
[2] E. (Mrs.) v. Eve, 1986 CanLII 36 (SCC), [1986] 2 S.C.R. 388, at paras. 74-75.
