CAN I DEAL WITH THE CUSTODY OF MY CHILD IN MY WILL? PRE-PLANNING TIPS FOR YOUR MINOR CHILDREN

You can specify testamentary custody for your child in your last will and testament in Ontario.

Under Ontarios Childrens Law Reform Act (CLRA), if you have custody of a child, you can specify in your Will who you wish to have custody if you pass away, but only for a ninety-day period after your passing. The person you appoint must consent to having custody. However, custody of a child is always subject to the decision of the Court. Your wishes in your Will will be considered, but they are not determinative. The best interests of your child will always govern. If your child is able to express them, your childs own wishes and preferences will be considered, too. 

Choosing your appointee is important, of course. You should discuss it with the person you choose, before you appoint them by your Will. The other parent, if applicable, should agree to the choice and, ideally, make a Will consistent with your choice, too, to avoid uncertainty. 

You can also appoint your Estate Trustee in your Will to be responsible for managing your childs property until your minor child reaches a certain age, such as eighteen.

If you pass away, but you do not have a Will in place, or you do not specify in your Will how your minor childs property is to be held and managed for your child, the CLRA requires that a guardian of property be appointed to do so. This role may be applied for by the other, surviving parent, or by another person (typically other family members or friends).  Generally the Court will give preference to a surviving parent, but that persons appointment is not automatic. Any application to be a minor childs guardian of property must be given to the Ontario Office of the Childrens Lawyer, too, which is the government agency in Ontario representing the interests of children in judicial custody and access matters, among other things. They can intervene and raise concerns, too, which can create problems, delay and more expense.

If you are a parent, that does not necessarily mean you have the authority manage your childs property, or be your childs guardian of property. For example, if your minor child receives property by an inheritance, for example, you may not, as a parent, have the right automatically to hold and manage that property for your child.

 

Generally, any person applying to be a minor childs guardian of property will have to provide evidence to the Court about your ability to manage the property (i.e., your qualifications and experience) and the views and preferences of the child, if they can be determined. Typically the applying person must submit a management plan for the childs property, which must address where the child will live, the childs living expenses, discretionary expenses for the child (such as, for example, music lessons, sports expenses and equipment, camps, etc.), the investment plan for any liquid assets and the financial education of the minor child.

Generally, a guardian of property will be required to transfer all of the property to the child when the child reaches the age of eighteen.

Therefore, it is important that you:

1)         make a proper Will;

2)         specify your choice for custody of your minor child(ren) in your Will; and

3)         specify in your Will how your childs property is to be managed.

If you have a minor child, but no Will, it may mean that someone will need to apply to be the guardian of property for your child, which can be expensive, time-consuming and uncertain. Similarly, if your spouse or partner passes away, you should not assume that you will automatically have the right to manage your minor childs property that may not be the case. 

Good planning for your minor children is essential. 

This WARDSPC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We’re here to help – [email protected]  www.wardlegal.ca

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