Area of Law: Wills, Estates and Powers of Attorney
Answer Number: 143
Appointment of guardians for minor childrenRegion: Ontario Answer Number: 143
In Ontario, you have a statutory right to appoint by Will one or more persons to have custody of your minor children after your death and to be guardians of their property. A minor refers to a child under the age of 18. You should note that having custody of your children and being guardians of their property are two different things.
Custody of your minor children
The Children’s Law Reform Act provides you with the right to appoint in your Will someone to have custody of your minor children. A person with custody of a child has the rights and responsibilities of a parent in respect of the child. For example, the person with custody of the child can normally decide where the child should live, what school the child should go to, and what medical treatment the child should receive.
There are three main restrictions on your ability to appoint a person to have custody of your children.
First, you must be the only person entitled to custody of your children. If someone else with legal custody of your children survives your death, such as the children’s other parent, then the person you appoint would not acquire custody. Furthermore, if both you and the other custodial parent die at the same time, then only a person whom both of you had appointed would acquire custody.
Second, the person you appoint to have custody of your children must consent to the appointment.
Third, the custody appointment in your Will only lasts for 90 days after it takes effect. That means the person whom you have appointed to have custody of your children must apply to a court within that period for permanent custody of your children.
On the court application, the court will choose a person to have permanent custody of your children based on what the court considers to be in their best interests. The court will consider many factors, including the wishes of the children, and their relationship with the person applying for custody and with other family members. If there is a surviving non-custodial parent of the children, the court will normally award custody to the parent. If there is no surviving parent, the court will normally follow your wishes as set out in your Will on the basis that you, as custodial parent, were the person in the best position to determine the best interests of your children.
Guardians of your minor children’s property
The Children’s Law Reform Act also provides you with the right to appoint by Will one or more persons to be the guardians of your children’s property. A person with guardianship of a child’s property has charge of and is responsible for the care and management of the property of the child. For example, the guardian may invest the child’s money and may decide how it should be used for the benefit of the child.
The main restriction on your ability to appoint someone to be the guardian of your children’s property is that you must be the guardian of your children’s property at the time of your death. You should note that you are not automatically the legal guardian of your children’s property; you must actually apply to a court to be so appointed.
In addition, a guardianship appointment is subject to the same three restrictions as a custody appointment:
- You must be the only person entitled to guardianship,
- The person you appoint must consent to act as guardian, and
- The appointment is only effective for 90 days.
The person whom you have appointed to be the guardian of your children’s property must apply to a court within that period for permanent guardianship. Again, the court will choose a guardian based on the best interests of your children, but will show a preference for a surviving parent, if any, and if none, for the person named as guardian in your Will.
More information about the appointment of guardian for minors in Ontario can be found from the Ministry of the Attorney General.
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