How To Appoint a Guardian For My Child in Ontario
The process for appointing a guardian for your minor children can vary by jurisdiction. So depending on where you live, the guardianship appointment in your Will may be temporary or permanent.
What is a legal guardian?
As a parent, you have the legal authority and responsibility to care for your children as their guardian during your lifetime. If a minor child has two parents, they are both usually the legal guardians.
If one legal guardian dies then the surviving guardian would be the children’s sole guardian. However, if there is no surviving guardian and the parent who just passed away had a legally binding Will, the guardian of the children will be the person appointed in the Will.
How does it work in Ontario?
In Ontario, a guardianship appointment is temporary. Within a period of 90 days, the person(s) appointed as guardians for your minor children need to apply to the court for permanent guardianship. The temporary guardianship appointment will be extended for as long as the application is before the court.
The Ontario court will then appoint a permanent legal guardian on the basis of the child’s best interests. The court may heavily rely on the wishes you express in your Will to gain an understanding of what you believe would be in their best interests.
What happens if you die without Will
A number of issues may arise if you don’t have a Will and therefore haven’t named a guardian for your minor child. For instance, the court won’t have any knowledge of your wishes as the parent or whether you would have wanted a particular person to be your child’s legal guardian.
Also, more than one person could apply to the court to be named guardian because they each think they are the best fit for the role. This may lead to conflict between the parties and add additional stress to an already difficult time for your family.
Why is it important to appoint a guardian?
Appointing a guardian for your children in your Will ensures that the court knows who you, the parent, think would be the best person for the job. There can be a lot of pressure in choosing a suitable guardian. After all, this person could become your child’s caregiver and make life-altering decisions for them, such as where they live, where they go to school, who they spend time with, what medical treatment they receive, what activities they participate in, etc.
So it’s critical that you choose someone you trust.
How do I choose a guardian?
Naming the other parent to be your child’s guardian in your Will is not a good idea (if both parents are guardians of the minor child). That’s because if the other parent is alive when you die, that parent will continue to be your child’s guardian.
Some questions to consider
So, how do you choose a guardian? There isn’t one right answer to this question since everyone’s situation is unique, but here are some questions to consider:
Does your child trust this person?
Does your child have a close relationship with this person?
How old is this person? Will this person be able to care for your child if something were to happen in the near future?
Is this person mentally, emotionally, and financially prepared to handle the responsibility of raising your child?
Does this person have their own children? Would this person be capable of taking care of all of your children so that they are raised together?
Is this person committed to raising your child the way that you’d like? For instance, would your child attend the same school, same church, participate in the same activities, and have the same people in their lives?
Would this person cooperate with the people you’ve named as the executors of your estate to ensure that your child’s needs are taken care of?
Where would your child live? Would this person move into your home or would your child move into theirs?
Is this person financially secure? Do they have the means to support your child?
Do you need to provide financial assistance to this person to care for your child?
Can I select more than one guardian?
As the parent, you can name more than one person to have guardianship of your children, such as a couple. This often happens when family members such as grandparents or in-laws are chosen as guardians.
However, naming a sibling and their spouse/partner to be co-guardians may be risky. Circumstances can change — they may get divorced or the sibling predeceases the spouse/partner, in which case most people wouldn’t want legal guardianship to be given to a brother-in-law or sister-in-law to act alone. To avoid this, people often only name a sibling and not their spouse/partner.
There’s also a chance that the guardian you’ve selected is unable or unwilling to take on the role, which is why it’s wise to name an alternate guardian.
Do I need the guardian’s consent?
It’s a massive responsibility to take care of someone else’s child so you want to make sure the person you’ve selected to be the guardian of your minor child is prepared to fill this role. It may feel awkward, but it’s essential for you to talk to the intended guardian about your wish for them to become your children’s caregiver if you die.
Don’t be hurt if they reject the guardianship appointment. Again, it’s a massive undertaking to raise someone else’s children so it’s better that you discussed it beforehand.
Review your guardianship appointment
It’s most important to pick the person(s) who you think would be the best choice right now. You can always revise your Will. As your child grows up, you should reassess the guardianship appointment to make sure the person is still the right fit. Circumstances can change for your child or for the intended guardian, and the same guardian may not be suitable for the entire duration of your child’s upbringing.
Choosing the perfect caregiver for your children can seem like a daunting task — and no one could possibly fill your shoes as the parent — but just choose the best guardian for the present moment. The most important thing is to appoint someone to care for your child in the event that you’re no longer here.
Important points about guardianship from the Ontario Children’s Law Reform Act
Here are some key takeaways from the Ontario Children’s Law Reform Act:
A parent with custody of a minor child may appoint someone in their Will to be the child’s guardian after their death.
A guardianship appointment is only effective if the appointor is the only person entitled to custody of the child at the time of their death OR the appointor and any other person entitled to custody of the child die at the same time or in a situation that makes it unclear as to who survived the other.
If two or more people are appointed as guardians of a child and both of the parents die at the same time, the guardians must have been named by both parents in their Wills for the appointment to be effective.
No guardianship appointment is effective without the appointed guardian’s consent.
A guardianship appointment is only valid for 90 days after the parent’s death. Within that 90-day period, the guardian must apply to the courts for permanent guardianship.