Most new parents that we meet with are aware that they can name someone in their Will to have custody of their minor children should they die. More often than not, it is this critical appointment that is the driving force behind their estate planning. It is usually the most difficult decision they have to make. What many of these new parents are surprised to learn, however, is that any such appointment is only valid for 90 days.
Why is the appointment I made in my Will limited to 90 days?
The rationale for a time-limited appointment is easy to appreciate: any decision concerning the custody of a child should only be made following a full analysis of what is in the ‘best interests’ of the child at the relevant time. Consider the situation where a parent makes a Will ten years prior to their death. For a whole host of reasons, the person they appointed to have custody of their minor child may no longer be the best, or even an appropriate, choice. To deal with this issue, the lawmakers decided that courts should retain the discretion to award custody to whomever they determine will best meet the ‘best interests’ of the child at the time of the parents’ deaths. The individual named in the Will, as well as any other parties wishing to do so, must make an application to court to be awarded permanent custody.
The ‘Best Interests’ Test
The ‘best interests’ test has been described by the courts as an ‘all-embracing’ concept. It encompasses the physical, emotional, intellectual, and moral well-being of the child. Everything from the day-to-day needs of the child to his or her long-term growth and development should be taken into consideration when applying the test.
Put Your Reasons in Writing
The court needs evidence and information upon which to apply the test and make a custody decision. Obviously, the parents will not be around to speak to the matter. As such, we encourage all parents to put into writing the reasons why they appointed who they did in their Wills to have custody. Sometimes even more important to put in writing is why they did not appoint other people in their lives. Although not binding upon the court, these statements can be persuasive evidence for the court, especially if a custody dispute arises amoung family members.
With guidance from the Children’s Law Reform Act and judges’ comments in case law, we suggest that parents’ consider the following factors:
- Love, affection and emotional ties.
The court will endeavour to assess the strength of the relationship between the child and person applying for custody. It will also assess the relationships with other family members who may be residing with the child and other persons involved in care and upbringing of the child. In making an assessment, the court may consider whether there is a good match between the temperaments of the applicant and the child and whether the child is able to be comforted by the applicant when anxious or upset.
Parents should describe in their own words the emotional ties between the child and the person they have appointed to have custody. They should speak to what factors make the relationship between the individual and the child strong and special. Emphasis should be placed on why they feel this relationship lays a good foundation for a custody arrangement. If possible, they should give specific examples of how this relationship has had a positive impact on the child.
- Ability of the applicant to care for the child and act as a parent.
The court will consider not only the applicant’s ability to provide basic necessities to the child but his or her ability to provide guidance and education. The court will also consider the applicant’s capacity to provide for any special needs of the child. Regard will also be had to the ability and willingness of the applicant to support the child’s relationships with other family members.
Parents should explain why they feel the named individual would be best suited and able to provide for the support of the child and give the child the life that the parents envision. They should emphasize the personality and character traits of the individual that would make him or her a good parent to their child. They should try to provide examples of why they feel the individual would put an emphasis on the child’s education and development and provide specific examples where possible. For example, did the individual support the child in a sport or activity by attending events or school functions?
- Permanence and stability.
The stability of the family unit of the applicant will be taken into consideration by the court when making a custody decision. The court will assess who is able to offer the greatest stability and level of permanence for the child.
The parents should offer concrete examples demonstrating the stability of the individual they have named. Is the individual’s marriage stable? Has he or she been steadily employed and lived in the same city for some time?
- Familial relationships.
The familial relationship that the child has with each party seeking custody must be taken into account by the court. This may give biological family members a slight advantage over applicants unrelated by blood or adoption to the child.
If naming a non-family member, the parents should speak to the emotional bonds between the family and this individual, especially with the child. Was this individual considered part of the family and treated as such? In such cases, the parents will also want to speak to why they feel the individual would make every effort to maintain the child’s relationships with his or her family members.
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.
