Estate planning clients are often under the misunderstanding that they have the ability to choose a permanent custodian or guardian for their minor children under a Last Will and Testament. However, while parents in Ontario can appoint someone in their wills to assume custody of their minor children upon death, the ultimate determination of custody is reserved for the court. It is important for estate planning lawyers to understand and explain to clients how these testamentary custodial appointments work.
It should also be noted that there is an important distinction between guardianship in terms of custody in relation to children (a form of guardianship of the person) and guardianship of a minor’s property. Where there are two parents with custody of a minor child and one parent dies, the surviving parent will automatically have the legal right to custody of the child. In contrast, a guardian of property refers to the individual appointed to manage a minor child’s assets until he or she reaches the age of majority. Parents do not have the automatic legal right to take guardianship of a child’s assets; rather, they must make a formal application to the court to obtain this authority. Most frequently, appointing a guardian for a minor child in a will refers to naming a custodian suitable to take the parent’s place rather than a guardian of property.
The Children’s Law Reform Act (the “CLRA”) provides parents the right to use a will to appoint someone to assume custody of minor children when they die. If two or more people are entitled to custody of the child and death occurs simultaneously, subsections 61(4)(b) and 61(5) of the CLRA provide that the appointment will only be effective if both parents appointed the same person as custodian. In the event that one parent predeceases the other, the appointment of the first parent to die is typically ineffective. In other words, the appointment under the will of the surviving parent prevails. The designated custodian(s) should also be consulted to ensure that they are comfortable with the proposed appointment when the will is prepared.
Upon the date of death, the parents’ decision with respect to testamentary custody is typically effective for 90 days. A formal application to the court must be made during the 90-day period in order to obtain permanent custody of the child, on notice to the Office of the Children’s Lawyer.
It is not uncommon for family members to dispute the custodian appointment and file a competing application for permanent custody of a child after his or her parents’ deaths. While a testator’s wishes with respect to custody are considered by the court – along with the child’s preference if they are of age to express them – the best interests of the child will always prevail. Courts may be reluctant to ignore the wishes of the parents as expressed in their wills unless evidence is brought forward to demonstrate that the appointed custodian would not be fit for the role and thus it would not be in the child’s best interests.
Section 24 of the CLRA sets out guidelines to determine the best interests of the child, stating that courts “shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.” A more extensive list of factors to consider follows this initial preface, including “the child’s needs, given the child’s age and stage of development, such as the child’s need for stability” and “the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child.”
Particularly because of the temporary nature of testamentary custodial appointments, it is important to support one’s decision with a clear rationale. In addition to leaving clear instructions in a will or codicil, estate planning clients may wish to take steps to ensure that family members are aware of their testamentary custody wishes and that any disagreements are brought to light while the parents are able to explain their rationale for custody-related wishes. This may facilitate a transition in custody following the simultaneous death of the parents, for the benefit of the children and their new custodians.
It is also worth noting that, as of March 1, 2021 (and scheduled to be incorporated into the legislation later this month), the term “custody” was changed to “decision-making responsibility” under the Divorce Act. According to information from the Department of Justice, “the Divorce Act now features concepts and words that focus on relationships with children, such as parenting time, decision-making responsibility and contact. The term ‘parenting order’ replaces ‘custody order’ throughout the Act, for instance. Similarly, the term ‘contact order’ describes an order that sets out time for children to spend with important people who are not in a parental role, such as grandparents.”
Although it is unpleasant to consider the prospect of an untimely death which would result in a minor child being left behind, it is important that this scenario, however unlikely, is not only considered but adequately planned for when creating or amending an estate plan where minor children are involved.
Thanks for reading – enjoy the rest of your day!
Suzana Popovic-Montag and Tori Joseph
I am not sure why, but whenever I talk to my friends about the benefits of having a Will, they seem to dismiss the advice, thinking that Wills are only meant for old people. I was thus delighted to come across this article which highlights millennial-centric reasons for having a Will, some of which are as follows:
Digital Assets – while many millennials attest to not being flush with cash, many are flush with digital assets. I have previously written about my digital presence, admitting that I have two personal e-mail addresses, four social media accounts, and so many points through reward programs such as Aeroplan, Indigo, Greenhouse Juice – the list goes on and on. These assets carry both a financial and personal value. Millennials preparing a Will should think about how they wish to transfer these assets.
Young Children – if a child is a minor, under the Children’s Law Reform Act, it is possible for a testator to appoint one or more persons to have custody of that child in a Will. It is also possible to set up a trust in the Will to ensure that the child’s inheritance is spent responsibly. I often tell people that in making a Will, do not think of it as being done to benefit oneself (i.e. the testator), but to benefit and help your loved ones. Being able to take care of minor children is a great example of this.
Pets Pets Pets – without engaging in the dog vs cat debate, it is suffice to say that many millennials have pets. In fact, millennials these days are opting for pets over parenthood – just walk through Trinity Belwoods Park on a Saturday afternoon. In Ontario, pets are considered property, and thus require specific estate planning. Some options include leaving a cash legacy to a pet guardian or setting up a trust for a pet guardian, both of which can be accomplished in a Will.
Hoping that my millennial friends now agree that Wills aren’t just for old people!
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The Ontario Court of Appeal recently considered the issue of whether the litigation files of the Office of the Children’s Lawyer are subject to a freedom of information access request in Ontario (Children’s Lawyer) v. Ontario (Information and Privacy Commissioner), 2018 ONCA 599. This appeal arose from a father’s request for the production of the Children’s Lawyers’ records. The Children’s Lawyer acted for the father’s children in the course of a custody and access dispute. Accordingly, a portion of the Children’s Lawyer’s records were privileged.
Justice Bennotto, in writing for a unanimous panel, found that the issue turned on whether the records are “in the custody or under the control” of the Ministry of the Attorney General for Ontario (“MAG“) for the purposes of the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F. 31.
The answer was no.
The Children’s Lawyer’s records are not in the custody or under the control of MAG because she operates separately and distinctly from MAG and,
“ [she] is an independent statutory office holder appointed by Cabinet through the Lieutenant Governor. She derives her independent powers, duties and responsibilities through statute, common law and orders of the court.
 To allow a disgruntled parent to obtain confidential records belonging to the child would undermine the Children’s Lawyer’s promise of confidentiality, inhibit the information she could obtain and sabotage her in the exercise of her duties. This would, in turn, impact proceedings before the court by depriving it of the child’s voice and cause damage to the child who would no longer be meaningfully represented. Finally, disclosure to a parent could cause further trauma and stress to the child, who may have divided loyalties, exposing the child to retribution and making the child the problem in the litigation.”
For those practising in the estates and trusts context, it is important to note that the role of the Children’s Lawyer is different in family law.
In civil matters that implicate a minor’s financial interest in property, the Children’s Lawyer acts as the minor’s litigation guardian and she is represented by the lawyers of her choice. In custody and access disputes, the Children’s Lawyer acts, at the request of the court, as the minor’s lawyer.
Bonus answer: the current Children’s Lawyer is Marian Jacko.
Thanks for reading this week!