Arranging Care for Children in Your Will

Choosing a Guardian for Your Children…

Easier said than done, I know.

I get it, as a parent myself, contemplating the possibly of early death is heart wrenching - and pushing yourself to think about who will care for your children if something happens to you is not a comfortable feeling. But ignoring this responsibility is not going to solve anything. Preparing a good contingency plan is important, not only for your children but for the entire family and for your peace of mind also.

Here are a few important things to consider when thinking about arranging care for children in the event something happens to you:

Naming a Guardian in Your Will

If you have custody of minor children - be it your biological children, your adopted children, your step-children, or others - you’ll want the children in your life to be cared for in the event something happens to you. The purpose of a contingency plan is to make things as simple as possible for grieving family members.

In Ontario, a person entitled to custody of a child may appoint by will one or more persons to have custody of the child after the death of the appointor: see s. 61 of the Children’s Law Reform Act. The appointment is only effective if there is no one surviving who is entitled to custody. In Ontario, the appointment is only effective for 90 days, during which time an application for guardianship is usually brought. This means that by naming someone to be the guardian of your children in your will, the will provides guidance and instructions as to who should care for the children immediately following your death. The guardian then needs to bring an application to the court within 90 days of your death to obtain formal custody of your children.

There is nothing preventing other individuals (usually family members) from bringing competing applications for custody. In reaching a decision about custody, the court’s primary consideration is what is in the child’s best interests. However, the wishes of the parents (by way of naming a guardian in their will for example) will be given weight in deciding. In addition, the testamentary guardian has the benefit of being the present guardian against whom any potential guardian will be compared to.

What Happens If You do Not Name a Guardian in Your Will

If a child has no living parent and no guardians have been appointed, then in the case of a tragedy an application must be made to the court for a guardian to be appointed, usually a willing family member or friends.

Choosing a guardian in advance can be a challenge, but not choosing one and simply trusting that the perfect person will apply to be appointed is not a great idea. When children are smaller, the decision may be easier. But as children become wedded to schools and friends, disrupting their lives by moving them to the other side of the country to live with a family member they rarely see would, I imagine, only add to the stress of having lost two parents.

Some Practical Things to Consider When Choosing a Guardian

1. Make a List of Important Things. The children’s best interests must always be at the center of the decision. I recommend making a list of things that are important to you and your children and use the list to help you choose the person(s) who would be best suited to care for your children keeping these important things in mind. For example, you may want to list your family values, religious beliefs, the child’s interests and hobbies, what brings them joy and happiness, the activities they like to do outside, make a list of their friends and close relatives, etc.

2. Talk it Through. No one is asking you to make this difficult decision on your own. I found that talking to family members and close friends (those who are also close to my children) was extremely helpful. I also recommend that you have a conversation with your lawyer in order to understand the options and process involved. There may be some options or helpful tips suggested that you never even considered.

3. Consider Existing Relationships. As mentioned above, the idea is to make the transition as simple as possible for grieving children and family members. In my opinion, the less disruption there is to the child’s life the easier it will be for them to adjust. I recommend considering people who already have an established relationship of trust with your children as the children would need all the comfort they could get during grieving moments. Although family members sound like the obvious choice to many, it does not have to be the only choice. Any person(s) (family or not) you believe would be well suited to care for your children should be considered.

4. Obtain Consent. In Ontario, no guardianship appointment is effective without the consent of the person being appointed. In order to avoid confusion, delays and stress for the children and the family members, have a conversation with the person(s) you would like to name as guardian in your will and make sure they feel comfortable with the possibility of becoming legal guardians to your children.

Have Questions?

Do you have more questions about guardianship? I would love to chat! Contact me via email (jhoule@jhoulelaw.com) or telephone 613-222-5656 to book a consultation.