All About Estates

Testamentary Custody

I was recently asked how parents can ensure that the guardian of their choice takes custody of their minor child or children in the event that both parents die simultaneously. In Ontario, parents (or any other person with custody of the child) can nominate someone to assume custody of their child immediately following their death, but the ultimate determination of custody is reserved to the court.

Section 61 of the Children’s Law Reform Act sets out how to appoint a guardian for a minor child in case the child’s parents die simultaneously. Under the statute, the appointment of a guardian must be made in a testamentary document (for example, a Last Will and Testament or codicil). In order for the appointment to be effective, both parents must appoint the same person in each of their wills. (This assumes that both parents have custody of the child. If only one person holds custody, then there is no need for matching will provisions). In addition, the person chosen to act as guardian of the child must consent to the appointment.

It is possible to appoint more than one guardian for your minor child. However, if one spouse nominates A and B in her will to take custody of the child following death, and the other spouse nominates B and C in her will to take custody of the child following death, then only B can assume custody of the child since only B was named in both spouses’ wills.  .

Testamentary custody is only effective in the 90 days immediately following the death of the child’s parents. In other words, by naming someone to be the guardian of the child in a will, the will provides guidance to the authorities and family members as to who should take care of the child immediately following the death of the child’s parents. The testamentary guardian is still required to bring an application to court to obtain custody of child on a permanent basis. 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 child’s best interests. However, the wishes of the parents will be given weight in making a determination. In addition, the testamentary guardian has the benefit of being the present guardian against whom any potential guardian will be compared.

In addition to leaving clear instructions in a will or codicil and obtaining the consent of the proposed guardian, family members should be made aware of the parents’ wishes regarding testamentary custody. This will help ease the transition following the simultaneous death of the parents.

One final note: the Children’s Law Reform Act distinguishes between a “guardian of property” and the person who has custody of the child. The guardian of property manages the minor’s assets until the child reaches the age of majority. The person who has custody of the child may also be the child’s guardian of property, but this does not necessarily have to be the case. For example, the parent may prefer that his or her estate trustee manage the minor’s assets until the child reaches 18 (or some other age) while someone else assumes custody. This distinction should be kept in mind when making provisions for testamentary custody.

Happy Canada Day,

About Gillian Fournie
Gillian is a lawyer with de VRIES LITIGATION LLP. Her practice focuses on the area of trusts and estates litigation.