All parents have legal obligations towards their children. Those legal obligations don’t just pertain to providing the basic necessities for their children but also to manage their property in a diligent manner.
Duty imposed on parents according to the Criminal Code
Section 215 of the Criminal Code states that parents or guardians have a duty to provide the necessities of life to a child less than 16 years of age.
Though there is no specific criminal law that deals with a parent’s duty to handle the child’s property responsibly, there are sections in the code that deal with theft, should the child’s property or funds be misappropriated or stolen.
There is also provincial/territorial legislation that imposes is a duty on the parent/guardian to act in the best interests of the child when it comes managing the property of the child.
Managing a child’s property under a certain value
In quite a few provinces, legislation allows parents to manage the property of their child if the property falls under a certain amount of value.
For example, in Nova Scotia, Ontario, and other provinces, if the value of the property that the child owns is under $10,000, the parent can likely assume responsibility and control of the child’s estate.
However, the parent/guardian has a duty regardless of the amount, to manage the child’s property responsibly.
Managing a child’s property over a certain value
If the amount exceeds what is legally allowable in your province or territory, you have to apply to the court to be declared guardian of the minor’s property. To find out what the limit is for your province or territory you are going to have to consult the appropriate legislation or consult with a lawyer.
Regardless of what the value of the property is that the parent or guardian is managing, they often have requirements imposed on them under legislation, which requires them to be careful with the child’s money. Often there are reporting requirements that the parent/guardian has to abide by.
What happens if the parent or guardian misappropriated or stole funds?
If the child has been left property in a trust or has won a court judgement and the parent uses this money for his or her own purposes, there are several things the child could do to seek remedy:
- Seek criminal charges to be laid against the parent or guardian likely under the theft sections of the criminal code; and/or
- A civil claim can be filed against the parent/guardian suing the party for having misappropriated the property that doesn’t belong to them.
There is a remedy called a remedial constructive trust in civil law that the child could ask for if his or her funds have been stolen or misappropriated.
A remedial constructive trust was created for the courts to be able to right a wrong in situations of unjust enrichment. However, this type of remedy may not be available in every province or territory.
As a situation where property may have been misappropriated or stolen is delicate and complicated, it’s best to consult a lawyer about what can be done.
Frequently Asked Questions about Children's Trusts Services
The Remedial Constructive Trust