Tag: Office of the Children’s Lawyer

10 Mar

Can Child Custody Directives in a Will be Enforced?

Suzana Popovic-Montag Estate Planning Tags: , , , , , , 0 Comments

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

13 May

A Further Update on the Estate Arbitration and Litigation Management (EALM) Initiative

Suzana Popovic-Montag Estate & Trust, Litigation Tags: , , , , , , , , 0 Comments

We have previously written about the Estate Arbitration and Litigation Management (“EALM”) initiative, which has been spearheaded in an effort to keep estate litigation matters moving forward during the COVID-19 pandemic. Our previous blogs on the EALM initiative can be found here and here.

In its Notice to the Profession dated May 5, 2020, the Ontario Superior Court of Justice announced that it will not resume in-person hearings until July 6, 2020, at the earliest. The notice further states that the scope of matters being heard by courts virtually will be expanded in the near future, but the particulars regarding such an expansion have not yet been released.

While access to the courts remains limited, EALM is available as a means of obtaining assistance in the determination of procedural and/or interim (and certain substantive) matters that are not necessarily urgent in nature and not currently eligible for a virtual court hearing. The matters set out in an EALM agreement can be arbitrated by senior estates practitioners in a timely and cost-efficient manner. EALM arbitrations can take place via teleconference or video conference, depending on the preferences of the parties and the arbitrator.

As previously indicated, EALM is not intended to in any way circumvent the role of the Office of the Public Guardian and Trustee (the “PGT”) or the Office of the Children’s Lawyer (the “OCL”) where the estate matter involves unprotected charitable interests or the rights of persons under legal disability. Since our last blog post regarding EALM was posted, the initiative has received the support of the PGT and the OCL and our precedent EALM agreement has been further updated to recognize the potential role that the PGT and/or the OCL may have in EALM process. Best EALM practices include ensuring that the PGT and/or the OCL are provided with the opportunity to participate, and further include the following:

  • Where any substantive issue to be submitted to arbitration affects the rights of persons under legal disability, or an unprotected charitable interest, the parties must provide notice of their intention to enter into an EALM agreement to the PGT and/or the OCL;
  • The PGT and/or the OCL should be served at the early stages of a matter, particularly when the issues will have a significant effect upon the interests that they represent;
  • Where the PGT and/or the OCL are participating in a proceeding, their consent to proceed to EALM is required;
  • Where it is necessary for a court to appoint the PGT or the OCL as litigation guardian, each office may consider requests to engage in the EALM process after they have been appointed as litigation guardian (rather than prior to their formal appointment); and
  • An arbitrator’s decision to resolve substantive issues involving the rights of persons under legal disability will be considered to be a final settlement, which requires court approval under Rule 7.08 of the Rules of Civil Procedure.

A revised copy of our precedent EALM agreement, which has been updated in consultation with the PGT and the OCL in consideration of the comments set out above, can be found here. An updated list of senior estates practitioners who are prepared to assist as EALM arbitrators is available here. I again thank all of those who have demonstrated an interest in assisting other members of the Estates Bar as arbitrators.

EALM is a cost-effective measure to move matters forward and provides the parties to litigation with more control than the traditional court process. Once the courts resume full operations, we can only anticipate that they will be at full capacity and hearing dates will be in high demand. In light of this, we are hopeful that EALM will continue to assist parties to estate litigation and their counsel as a suitable and efficient alternative to in-court hearings.

If you are interested in introducing EALM into your own practice, or if you are interested in being added to our roster of EALM arbitrators, please contact me at spopovic@hullandhull.com.

Thank you for reading and stay safe.

Suzana Popovic-Montag

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