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Frequently I meet with clients who inquire about having a Will prepared, given their separation. They express concerns about their child(ren)’s future in the event something happens to them now that they are separated. The typical client may ask about what happens to “custody” of their child(ren) in the event of their death, and have questions about who will look after the property that you wish to leave to your minor child(ren) upon your death.

In Ontario under the Children’s Law Reform Act (“CLRA”) you can appoint one or more persons to have custody of your minor child or children (under the age of 18) or guardian over the child(ren)’s property in your Will. Because these appointments are named in your Will they can only take effect after your death.

Appointment for Custody of a Minor

A person who has custody of a minor child has the rights and responsibilities of a parent with respect to the child. For example, a person with custody of a minor child can determine where the child will live, what school the child will attend, what doctor the child will see, etc.

To appoint someone in your Will to have custody of your minor child there are three conditions:

  1. You must be the only person entitled to custody of your child. If you share joint custody of your child with, for example the other parent, then you cannot make the decision that a different person will have custody instead of the other joint custodial parent.
  2. The person you want to appoint must agree. It is pointless to appoint someone who is unwilling to assume the responsibilities and obligations of being granted custody of the child.
  3. The appointment in your Will only last 90 days after your death. The person you appointed must apply to Court within 90 days to obtain an Order granting them permanent legal custody of your child.

Appointment for Guardian of a Minor’s Property

In addition to permitting a parent to appoint under their Will an individual to have custody of their minor child, the CLRA permits a parent to have the right to appoint a person, or more than one person, to be the guardian of your minor child’s property. The guardian of property has the responsibility of managing and caring for the minor child’s property, for example determining how to invest the child’s funds and determine how those funds are to be spent for the child’s benefit.

In Ontario a parent is not automatically the Guardian of a child’s property. A parent can only receive such authority on behalf of a minor child by statute, a Court Order or other document, for example a Will or life insurance policy.

Unlike appointing a Trustee with respect to property left to a minor under a Will, appointing a Guardian of a child’s property requires that the appointing parent is already appointed as a Guardian over their child’s property at the time of their death. Absent a Court appointment, there is no automatic presumption that a parent is the guardian of a child’s property.

There are three conditions to the appointment of a Guardian of Property for your minor child:

  1. You must be the only person entitled to Guardianship of the child’s property at your death. This means that you must actually be the Guardian of the minor’s property at the time of your death.
  2. The person appointed must consent to act as the child’s guardian.  There is no way to force the responsibility on the chosen individual.
  3. The appointment is effective for 90 days, so the person you name has to apply to Court within 90 days of the parent’s death, to be appointed as Guardian of the minor’s property.

In hearing the Application for custody or appointment of guardian of property, the Court will make a decision about your minor’s custody based upon the child’s best interests, and not only the wishes of the Testator.

Typically the Court will consider granting custody of the minor and/or guardian for the minor’s property to a surviving non-custodial parent and will pay attention to the wishes of the minor before determining the matter.

Andrea Cooley is a lawyer practicing in all areas of family law including property division, child support, spousal support, custody, access, divorce and marriage contracts. If you have any questions about this article or any other family law matter, please contact her to schedule a consultation. She can be reached via email or by phone at 519.660.7782.

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