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. 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.
Many parents, whether biological or adoptive, are surprised to learn that they do not have the right to name a permanent custodian of minor children. Ontario law gives the court a supervisory role over all custodian appointments and such appointments are based upon what the court considers to be the best interests of the child.
To assist the court, parents should take the time to write out their reasons for the choice of custodian. Equally, or perhaps even more importantly, parents should also comment on the reasons why other persons were not named. The parents’ reasons may prove helpful to the court when determining who should have custody, particularly if someone other than the person they have named also applies for custody.
Parents may also want to record their wishes and expectations for any aspect of the raising of their children, such as which schools they might attend, what sports they might play and what values they should be taught. Although not legally binding, such written guidance can be of great value to the custodian.
To ensure that the parents’ reasons and wishes can be found when needed, reasons for naming certain custodians and wishes regarding the child’s upbringing should both be stored with the parents’ Wills.
If you are the parent of a young child, it is important that you have an up-to-date, valid Will naming one or more custodians of your child. Such appointments should be reviewed regularly (perhaps on the child’s birthday) to ensure that no changes are needed. Knowing that you have provided for your child’s care in the event of your untimely death will provide peace of mind.
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.
