This blog has been written by Karen La Caprara, Counsel at Fasken LLP

When I speak with parents of young children who don’t have wills in place, the most common reason I hear for their delinquency is not that they’re too busy, that it’s too expensive or that they don’t have significant assets. It’s that they can’t decide or agree on who would be the guardian[i] of their minor children if they (and their parenting partner(s), if applicable) pass away. I completely understand and sympathize with this predicament. It’s very difficult to imagine your young children without you, and to think who would be best suited to care for them in your place, who you feel comfortable imposing such a huge responsibility on and who could cope with the responsibility (someone who is still young and/or sufficiently energetic enough to take on the parenting role, who isn’t too overwhelmed by their existing family and work responsibilities). The choices can become quite limited. If you have a young child or children or are providing advice to parents with a young child or children, please ensure that this is not an obstacle to having wills prepared.

When I speak with clients who are having difficulty choosing or agreeing on a guardian for their children[ii], they are often reassured when they understand that:

1. Who you choose to name as guardian of your minor children in your will is not a permanent appointment, but rather expires 90 days after your death.
2. The individual appointed in your will to be guardian, if they wish to continue as guardian, will need to apply to the court within that 90 day period for a permanent appointment to be the guardian of your children (specifically, to have “decision-making responsibility” with respect to your children, and possibly to be the “guardian of property” of your children). When considering such application, the court will consider who you have appointed in your will but will also consider any objections to that appointment. Perhaps the life circumstances of the guardian that you choose have changed such that they are no longer suitable. The court’s job is to consider what is in the best interests of your minor children at the relevant time.
3. The court-appointed guardian, in turn, has to act in the best interests of the children. If the trustees managing trusts for your young children (set up under your will), or other family members or family friends have concerns with regard to whether the guardians are acting in the best interests of the children, there are avenues under which they can raise these concerns.
4. You can name alternate guardians in your will and you can have language in your will or in a letter of wishes that you prepare and reference in your will that provides guidance as to your intentions about who would act and in what circumstances. For example, perhaps you want to appoint your children’s grandparents but only if at the time they are still in good health and feel capable of taking on the role. Perhaps, you want your sibling to act but only if they agree to move back to Ontario from abroad. The appointed guardians must consent to the appointment before a court will appoint them.
5. If you have a potential guardian in mind but have a specific concern or reservation about them acting, you can add language to the standard appointment language in your will (or in a letter of wishes accompanying your Will) that may help mitigate your concerns (so long as the concerns are not so serious as to be deal breakers). Examples might include:

• • if you are concerned about the potential financial burden on a guardian who is less financially secure then you, ensure that your trustees are directed to fully and generously compensate the guardian for all related expenses. Perhaps also you can provide that the guardian receives an additional regular allowance – this may be useful if you’re appointing a guardian who you think will hesitate to ask for reimbursement for the smaller things and who may just use their own money to cover those expenses;
  • if you are concerned that the guardian is not responsible with money (would they go on a family vacation with funds earmarked for your children’s education?), ensure that you haven’t appointed them as your executor and trustee as well as the guardian. That may be obvious! Especially though in this situation, it would be important to have the check and balance that comes with having different individuals in different roles and, here, you would want to ensure that the trustee (hopefully being the more financially responsible individual) is more involved with the application of the funds for your children. This can be provided for in your will, as well as by providing a letter of wishes with separate guidance to your trustee;
  • if you are concerned that the guardian who has different values, religious or cultural beliefs may unduly impose those values, religious or cultural beliefs on your children, you can again provide guidance in your will or a letter of wishes regarding your wishes in this regard. Perhaps you can also request that family members or friends that share your values, religious or cultural beliefs also spend valuable time with your children, sharing their values and beliefs or introducing them to religious or cultural practices. This is something you could discuss with such family members or friends in advance. Please note that these are wishes and not legally binding directions, but hopefully you are able to appoint someone who will have respect for your wishes and if others are involved in your children’s lives, hopefully they too can hold the guardian to account.

Even for those parents who don’t have anyone that they feel comfortable appointing as guardian, please speak to an estate planning advisor. An advisor should be able to provide you with useful guidance as to how to choose and how to address any concerns about your choice. If that doesn’t help, still do your wills and leave out the guardian appointment for the time being. At least then you won’t also have a potential scenario where in addition to the appointment of a guardian that you have not chosen, you will also have your estate dealt with in accordance with the laws of intestacy that would apply if you die without a valid will. Among other things, on an intestacy, you would have an executor and trustee who you also have not chosen, the share of your estate set aside for a minor child would be held on very restricted trust terms until they attain the age of 18 years and upon them attaining the age of 18 years their remaining share would be handed over to them with no strings attached (assuming they are not otherwise incapable of managing property). The process of dealing with an intestacy and the resulting implications would be a huge stress and challenge on top of an already horrible situation. I am a parent of three teenagers and even though I consider them to be smart, responsible and relatively mature, and while I love them dearly (or perhaps because of that), I would not wish for them to receive their inheritance at such a young age if something were to happen to me and my spouse. They would be grieving the loss of their parents, their lives would be turned upside down and suddenly they would have the responsibility of managing all of their finances at 18 years old, including decisions regarding who they should trust to help them with this responsibility. This would certainly impact their decision-making and likely make them more vulnerable to the influence of others (for good or bad).

The hope of course is that who you choose to be the guardian of your minor children is all for nothing because you live a long and healthy life and get to be there for your children throughout. However, having an up-to-date will prepared and in place throughout your life, including when your children are young, is critical and, while it may be a challenge and require compromise to get there, it will be rewarding to know that in the event something happens to you, you will have provided for your children’s future as best you can.

[i] For the purposes of this blog, I’m using the term “guardian” as a general term to refer to the person who a minor child lives with and is cared for by, and, if applicable, the person who is responsible for the property of a minor child. In Ontario, under the Children’s Law Reform Act, R.S.O. 1990, c. C.12, these roles are separate and are referred to as “a person entitled to decision-making responsibility with respect to a child” (this was previously referred to as the person with custody or the custodian of a child) and the “guardian of the property of a child”, respectively.

[ii] Parents need to have the same guardian or guardians appointed in their wills for the appointment to be effective in the event they die at the same time or in circumstances that render it uncertain who survived the other, such as in an accident (ss. 61(4) of the Children’s Law Reform Act).