Many young families consider estate planning a task that can wait until their children are older, until they have paid off those pesky student loans from university or more importantly until they have acquired assets with significant value. However, an estate planning consideration that often gets overlooked is who will raise your child if you die while they are a minor.
When thinking about who will raise your child if you die before they reach adulthood it is usually the presumption that the other parent will be there to raise the child. So what happens if both parents simultaneously die in an accident? Or what happens if you are the sole living parent or sole custodian of your minor child (i.e. the other parent lost the right to custody by way of court order)?
Section 61 of the Children’s Law Reform Act (“CLRA”) contemplates these situations and provides:
- (1) A person entitled to custody of a child may appoint by will one or more persons to have custody of the child after the death of the appointor.
The testamentary appointment of a minor child is effective only:
- if the parent making the appointment is the only person entitled to custody of the child on the day before the appointment take effect; or
- if both parents die at the same time or in circumstances that render it uncertain which survived the other.
I am certain it goes without saying that the decision of who you will appoint as your child’s custodian is a decision that must be given considerable thought. However, it is especially important in these circumstances because your testamentary appointment expires 90 days after it take effect. Following the expiration of the appointment your chosen custodian must apply to the Court for a more permanent order of custody. Accordingly, regardless of your testamentary appointment your appointed custodian must be able to satisfy the court that a more permanent custody order is in the best interest of the child.
Although the thought of your child being orphaned while they are a minor is inconceivable for many parents, it may nonetheless be something to give some thought.
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Listen to the Health Care Consent Act.
This week on Hull on Estates, Megan Connolly and Sean Graham review the Golubchuk case out of Manitoba and discuss the Health Care Consent Act of Ontario.