How to identify a fiduciary relationship?

Ontario, Canada


The following excerpt is from Fox v Narine, 2016 ONSC 6499 (CanLII):

The question of how to identify a fiduciary relationship has been reviewed. In Frame v. Smith, 1987 CanLII 74 (SCC), [1987] 2 S.C.R. 99, Madam Justice Wilson, in her dissenting judgment, proposed that a custodial parent (the mother) could be in a fiduciary relationship with the non-custodial parent (the father) with respect to visitation rights to their children. She provided the following as guidance: Relationships in which a fiduciary obligation have been imposed seem to possess three general characteristics: (1) The fiduciary has scope for the exercise of some discretion or power. (2) The fiduciary can unilaterally exercise that power or discretion so as to affect the beneficiary’s legal or practical interests. (3) The beneficiary is peculiarly vulnerable to or at the mercy of the fiduciary holding the discretion or power. (Frame v. Smith, supra, at p. 136)

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