A minor is considered to be a person under the age of eighteen years. In Ontario, a parent is automatically the guardian of the person of his or her minor child.[1] However, a parent is not automatically the guardian of property of his or her minor child.[2] In certain circumstances, a parent can receive the authority to manage the finances of his or her child by statute, court order, or other document, such as a Will or life insurance policy.
Where an adult person does not have the legal authority to manage a minor’s property, the funds must be paid to the Accountant of the Superior Court of Justice.[3] There are two exceptions to whether the funds must be paid to the Accountant of the Superior Court of Justice: (1) when the minor’s assets do not exceed $10,000 or (2) a guardianship application is commenced and a guardian of property for the minor child is appointed by the court.[4]
It is important to note that, in some circumstances, it may be more beneficial to have the funds directly paid into court, rather than commencing a guardianship application. For example, if the minor child is likely to be found capable of managing property once he or she turns eighteen years of age, then paying the funds into court may be more cost-effective than commencing a full guardianship application.
Guardianship Application for a Minor Child
Upon an application under the Children’s Law Reform Act (CLRA) by a child’s parent(s), or by any other person, a court may appoint a guardian of property for the minor child.[5] Once appointed, the guardian will be responsible for the management of the child minor’s finances.
As indicated, a parent or any other person may be appointed as guardian of property for the minor child. However, when there are competing applications, the parent has preferential entitlement to be appointed by the court as the guardian of property.[6] More than one guardian can also be appointed by the court and the guardians will be jointly responsible for the care and management of the property.[7]
An application to be a guardian of property for the minor child must be served on the Office of the Children’s Lawyer. The Children’s Lawyer reviews the materials submitted by the applicant and usually provides comments and/or concerns regarding the application and the materials submitted to the court.
The following materials are required for an application to be appointed as a guardian for property for the minor child:
(a) Information concerning the minor child and if applicable, information concerning any litigation and settlement proceeds received on behalf of the minor;
(b) Information concerning the minor’s family history and if applicable, information as to why other persons are unwilling or are unsuitable to become guardian;
(c) The proposed guardian’s connection to the incapable person and reasons supporting why the proposed guardian is the most suitable person to become guardian;
(d) Any wishes of the child in regards to the management of their property, if they can be ascertained;
(e) Information concerning how settlement proceeds will be distributed and invested; and,
(f) A detailed management plan for the minor setting out the settlement funds awarded to the minor and the proposed plan for dealing with the minor’s funds for their medication, treatment, and for future plans.
In addition to the materials listed above, the court will consider the following criteria when appointing a guardian of property of a minor child:
(a) the ability of the applicant to manage the property of the child;
(b) the merits of the plan proposed by the applicant for the care and management of the property of the child; and,
(c) the views and preferences of the child, where such views and preferences can reasonably be ascertained.[8]
A guardian of property of the minor child is entitled to compensation, in a reasonable amount, for fees and expenses incurred in the management of the property of the minor child.[9]
Once a child turns eighteen years of age, the guardian of property shall transfer the property of the child that is still being managed by the guardian to the child, provided that the child is capable of managing property.[10] A minor will often be assessed by a designated capacity assessor as to whether he or she is capable of managing property prior to the minor turning eighteen years of age.
If you have any questions regarding guardianships for minors, or if there is something we can help you with, contact the Siskinds’ Wills and Estates Lawyers at 519-672-2121. We will be pleased to be of assistance.
[1] Ontario Ministry of the Attorney General, Retrieved from: https://www.attorneygeneral.jus.gov.on.ca/english/family/ocl/propguard.php
[2] Ibid.
[3] Ibid.
[4] Ibid.
[5] RSO 1990, c. C.12, s. 47.
[6] Ibid. at 48(2).
[7] Ibid. at 48(3) & 48(4)
[8] Ibid. at s. 49.
[9] Ibid. at s. 54.
[10] Ibid. at s. 53.