Custody & Guardianship of Minors & Minors’ Property
Provincial legislation in Ontario allows for the appointment of custodial parents for minor children in case of death, and also allows the appointment of guardians of the child(ren)’s property.
Custody of Minors
The Children’s Law Reform Act provides the statutory authority permitting parents the right to appoint one or more individuals to have legal custody of their minor child(ren). The appointed custodial parent(s) will resultingly have the rights and responsibilities of a parent in respect of the child(ren).
Guardian of Minor’s Property
Children’s Law Reform Act is also the statutory authority allowing individuals the right to appoint one or more persons to be guardians of the child(ren)’s property. Unlike appointing a trustee with respect to property bequeathed to a minor, appointing a guardian of a child’s property requires that the appointing parent(s) actually be guardians themselves over their child(ren)’s property. Absent a Court appointment, there is no automatic presumption that a parent is the guardian of a child’s property.
Here are some important tips and considerations which will assist with the process of selecting custodial parents for your minor child(ren) and/or guardians for your minor’s property.
1. Consult and arrive at a consensus with the other parent of the child(ren). This should really go without saying given that the appointments from parents should not conflict with one another.
2. Consult and obtain the consent of the named custodial parent(s) and/or guardian(s) for property. It is pointless to appoint an unwilling individual to serve either role as the law will not force either responsibility on an individual.
3. Select alternate custodial parent(s) and/or guardian(s) for property in the event that your first appointment becomes unwilling or unable to fulfill the mandate.
4. Make sure you explain the importance of complying with the timelines for applying to the Court to the named custodial parent(s) and/or guardian(s) for property. Specifically, your appointees must apply to the court within ninety (90) days to obtain permanent legal custody of your child(ren) and/or guardianship of your child(ren)’s property.
Legal counsel should also be encouraged in order to ensure proper and effective representation for the Applicant(s) names as custodial parent(s) and/or guardian(s) for minor’s property under your Will. The Court ultimately has the final say, notwithstanding the wishes of the Testator. In arriving at a decision as to whom to grant custodial parenthood to and/or guardianship of property to, the Court’s overriding consideration is “the best interests of the child(ren).” Absent evidence suggesting otherwise, the Court will typically consider it to be in the best interests of the child(ren) to have permanent custody as well as guardianship of property awarded to a surviving non-custodial parent. The Court will, however, pay special regard to the wishes of the child(ren) themselves before deciding the matter.