In Marshall vs. Snow, the court was asked to determine who should be awarded primary custody of a minor child following the death of her mother (the child’s primary caregiver).

Prior to the mother’s death, the child’s father and mother shared joint custody but not equal parenting time or decision-making rights with the mother having final decision-making authority.  The child also resided with and was close to her maternal grandparents.

A few weeks before the mother’s death, the father indicated to the grandparents and mother that he would seek primary care of the child and sole decision-making authority.  As a result, 8 days before her death, the mother swore a deathbed affidavit stating her desire for the grandparents to continue to have primary care over the child and her reasons for requesting so.

The father sought to exclude the mother’s affidavit as hearsay evidence.  While the Court did not agree that the mother’s affidavit was hearsay evidence, the court chose to not rely on the affidavit.  The affidavit was an expression of the mother’s wishes and that evidence was uncontested and available elsewhere. Regardless of the mother’s wishes, the court noted that the court’s decision had to be in the best interests of the child.

In granting the grandparents an interim order awarding them primary care, Justice Kurz wrote:

“Children are not chattels. No one inherits title to them. And their best interests are the paramount consideration in any parenting decision. Period. That is the moral centre of family law in Canada ”

Deciding who can care for a minor child if a primary caregiver dies is an important part of a guardian or parent’s estate plan. Pursuant to section 61 of the Children’s Law Reform Act, a person can appoint by Will someone to take over their decision-making responsibilities pertaining to a minor child and/or appoint a guardian for the minor child.  However, such an appointment is a temporary measure as the proposed guardian has 90 days to apply to court to become the minor child’s permanent legal guardian.

While the wishes of the deceased will be considered, the court’s decision is based on the best interests of the child.

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