No parent wants to even think about the scenario where they and/or their spouse were to pass on leaving minor children behind. For most parents, it is unimaginable. And yet, most parents have at one point asked themselves: “Who would take care of the kids if something were to happen to me?”
One of the most consistent messages that you will find in the blog here at Hull & Hull is that if you have significant assets or responsibilities in your life – it’s time to make a Will. Wills carry some of the most important instructions you will ever give, and can provide a degree of stability in the most difficult circumstances. For parents, one of the most important pieces of information that can be included in a Will is the identification of a guardian who will care for children in the event of the death of a parent.
Many parents are vaguely aware that this is something that can be done – however, the mechanism is not always well-understood. Many children have a ‘godparent’ – a cultural signifier of deep friendship or family ties. However, this is only an informal designation, and does not necessarily have effect at law.
The proper way for a guardian of children to be designated by parents is through a Will. Section 61 of the Children’s Law Reform Act R.S.O. 1990, c. C.21 (the “CLRA”) provides that:
61(1) A person entitled to decision-making responsibility with respect to a child may appoint by will one or more persons to have decision-making responsibility with respect to the child after the death of the appointor.
Unfortunately, it is not that simple. Subsection 61(7) of the CLRA further provides that the designation of a guardian is only temporary – the guardian appointed in a Will only bears that authority for 90 days after the death of the parent(s). After this period, the Court must determine where, and with whom, children will live.
For parents who leave this kind of testamentary instruction, it is often surprising and controversial that their expressed intentions are not binding. However, ultimately, the determinative factor will ultimately be the Court’s decision as to the best interests of the child or children.
As is often the case within our practice area, this unlikely scenario can best be prepared for by speaking to friends and relatives, making your wishes known, and properly planning – even for the worst-case scenarios. And if this is a lingering anxiety – researchers at Stanford University have reported that the mere act of making a Will has been shown to reduce mortality-related anxiety. So, try not to worry – instead, make a plan!
Thanks for reading!