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Guardians Chosen in a Will, and the the Children’s Law Reform Act

Guardians, Custodians, and the Children’s Law Reform Act

Conventionally, “guardians” of minor children are whomever the parent has named in his or her will to take care of, and have “custody” over, the children after the parent’s death. In view of this, such appointees are “custodians” in waiting and not “guardians” at all, despite the fact that “custodian” is not a term specifically defined in the Children’s Law Reform Act (CLRA). A “guardian” is a person who has guardianship of the property of the minor.

According to s. 61(1) of the CLRA, the father and the mother of a minor child are equally entitled to custody of the child. So long as a parent has not lost custody of a minor child by order of a court, no court order is required to bestow the right of custody on a surviving parent. After the enactment of the Children’s Law Reform Amendment Act, 1982, on October 1, 1982, the father and mother of a minor child have been permitted by will to “pass on” the statutory right to custody which each enjoys. Under s. 61(4)(a) of the CLRA (which is the consolidated successor statute encompassing the Children’s Law Reform Amendment Act, 1982), the appointment of a custodian of a minor child is effective only if the person making the testamentary appointment is the sole individual entitled to custody of that child on the day immediately prior to the day the appointment is to take effect. If, for instance, the mother of a minor child is the sole living parent (or sole custodian of a minor child—the other parent having lost the right to custody by way of court order), a previous testamentary appointment by the now deceased father would be ineffective. Under s. 61(4)(b) of the CLRA, if the person making the testamentary custodial appointment dies at the same time as another person entitled to custody of the same minor child, or in circumstances rendering it uncertain which person survived the other, the testamentary appointment contained in the former’s will is effective. In the event of both deceased persons in such a “common disaster” making testamentary custodial appointments of different persons, s. 61(5) of the CLRA provides that only the common appointments, if any, will be effective. According to s. 61(6) of the CLRA, no testamentary custodial appointment is effective without the consent of the person appointed.

Testamentary Custodial Appointment is Temporary

Nobody, not even the natural and adoptive parents of a minor child, has a permanently vested right to custody of that child. The best interests of the child are the main concerns and any parent or custodian can forfeit his or her “right” to custody if circumstances so require. The well recognized supervisory role of the court with respect to the welfare of minor children is reiterated in the temporary nature of the testamentary custodial appointment. According to s. 61(7) of the CLRA, a testamentary custodial appointment expires 90-days after the appointment becomes effective. Such appointed custodian will have to apply to the court within the 90-day period prescribed by s. 61(7) for a “more permanent” order of custody, subject to the condition that the appointee must agree to continue to act as custodian. Once such an application is submitted, the court would exercise its supervisory role to determine whether the evidence before the court at the application hearing warrants a “more permanent” order of custody in favour of the applicant in the circumstances.

Likewise, every testamentary custodial appointment can be terminated at any time prior to the appointee’s application for a more permanent order of custody within the time prescribed by s. 61(7) of the CLRA. Stating it differently, a parent’s testamentary custodial appointment is at all times subordinate to the court’s supervisory role to act in the best interests of a minor child, where circumstances come to the court’s attention warranting the termination of the testamentary custodial appointment. That is, any person at any time is entitled to apply for custody of a minor child. This “anyone/anytime” stipulation is enshrined in s. 21 of the CLRA. In addition, s. 61(8) of the CLRA expressly subordinates any testamentary custodial appointment to the outcome of a s. 21 application for custody by someone other than the appointee.

Don’t do anything before fully understanding how it will affect your future and that of the people you care about.  Contact the lawyers at Levy Zavet PC (Levy Zavet) in Toronto, Ontario for more information about estate planning and for help planning your future.

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