This is Part 1 of a 2-part blog
Although not a subject many parents like to think about, parents of a minor child (under the age of 18) should consider who will look after their child if both parents die. This is a decision often debated and agonized over but, all too often, ignored. Hopefully, the information provided in this 2-part blog will help you make an informed decision and will encourage you to put that decision in writing.
Although the term guardian is commonly used to mean a person having custody of a child, the correct legal term is ‘custodian’. The term ‘guardian’ more properly refers to the person who has charge or control of the child’s assets or property. In this article, the focus is on what is involved in naming a custodian, that is, someone who will look after the child rather than the child’s assets.
Since the early 1980’s, it has been possible for parents in Ontario (by means of a clause in their Wills) to name one or more persons who will be their child’s custodian if the parents die. However, it is important to note that a custodial appointment in a Will expires after 90 days. Assuming the custodian is willing to take on permanent responsibility for the child, the named custodian must make an application to court for a more permanent appointment. Interestingly, no appointment is really ‘permanent’ as any person, not just a person named as a custodian in a Will, may apply to court at any time to have custody of a child.
If parents are separated or divorced, a custodial appointment in a parent’s Will is only effective if that parent was entitled to custody of the child at the time of the parent’s death. In the spirit of teamwork, it is essential that both parents, especially those who are married or who have joint custody due to separation or divorce, reach a consensus as to who should be appointed custodian. If parents name different custodians in their Wills and then the parents die in a common accident in circumstances that make it impossible to determine who died last, neither of the custodians named will have custody.
Reproduction of this blog is permitted if the author is credited. If you have questions or if you would like more information, please call us at 613 836-9915. This blog is not intended to be legal advice but contains general information. Please consult a lawyer or other professional to determine how the information in this blog might apply to you.
Blog posts pre-dated December 1, 2015 were originally published under Neff Law Office Professional Corporation.
