TESTAMENTARY CUSTODIANS OF CHILDREN
By LORENE H. McDOUGALL, (former associate) Family Law
Department
As a family law lawyer, I find parents with children are
often concerned about who will care for their children if
they die. I am asked:
- can they appoint someone to have custody of their children?
- what is the proper procedure that must be followed?
and
- will their choice for the appointment be respected by
their executors and/or a Court?
The following are the answers to those questions and other
related concerns, based upon a review of the current statutes
and case law.
Section 61(1) of the Children's Law Reform Act,
R.S.O. 1990, c. C. 12(called the "Act") states:
"A person entitled to custody of a child may appoint
by Will one or more persons to have custody of the child
after the death of the appointor".
Generally, a father or a mother would be a person "entitled
to custody" of the child as according to section 20(1)
of the Act, as they are equally entitled to custody of a
child, subject to certain exceptions. In the case of parents
who have not separated and have a child, those parents can
name a person or persons in their Will to have custody of
their child after they die. If both parents "entitled
to custody" have appointed two or more persons in their
respective Wills to have custody, and both parents die at
the same time, only the appointments of the persons appointed
by both are effective. In the case of parents who have separated
and have a child, the parent who has de jure custody (which
means lawful, legitimate or rightful custody) by means of
a separation agreement or court order is "entitled
to custody" and therefore able to appoint in his or
her Will a person to have custody of the child upon his
or her death. A separated parent who has de facto custody
(which means in fact, in deed or actually in possession
but without legal or lawful custody being set out in a separation
agreement or court order) would also, in my opinion, be
"entitled to custody" and therefore able to appoint
in his or her Will a person to have custody of the child
upon death. Obviously, if the separated parents have joint
custody of the child, both parents will continue to be "entitled
to custody".
Before you appoint a person to have custody of your child,
it makes common sense to obtain that person's prior consent
- as being suddenly granted custody of a child as a result
of the parent's death is a big responsibility and will result
in major changes in the appointee's life. Remember the shock
and quick changes the ambitious glass-ceiling crashing executive,
J.C. Wyatt (played by Diane Keaton) experienced in the movie
Baby Boom, when she was appointed, without her consent,
under the Will of her mother's cousin's daughter's son,
custodianship of his 15 month old child? Her corporate power
struggles became baby food struggles. It also makes legal
sense to obtain that person's consent as section 61(6) of
the Act states no appointment will be effective without
the consent of the person appointed.
The appointment of a person under a Will to have custody
of a child is only effective for ninety (90) days after
the person "entitled to custody" of the child
has died. In order for the appointment of custody to continue,
it will be necessary for the appointee to make application
to the Court in the jurisdiction where the child is habitually
resident, for a permanent order for custody under the Act.
If the child was habitually resident in the County of Simcoe,
the Court that would have jurisdiction to hear such an application
would be the Ontario Superior Court of Justice in Barrie.
The parties to such an application must include of course:
- the appointee;
- the surviving parent;
- a person who has demonstrated a settled intention to
treat the child as his or her own;
- a person who had the actual care and upbringing of the
child immediately before the application; and,
- any other person whose presence as a party is necessary
to determine the matter.
The custodial appointment will only be continued if the
Court determines it is in the best interests of the child
for the appointee to continue to have custody of the child.
Some of the major considerations which would be directed
to the mind of the Court in determining the best interests
of the child, are as follows:
- the love, affection and ties between the child and the
person claiming custody;
- the length of time the child has resided in a stable
environment if the evidence establishes such environment;
- the ability of the party claiming custody to provide
for the child in the areas of guidance, education and
necessaries;
- the available extended family unit, and the stability
of the family unit as it relates to the proposed child
for custody;
- the relationship by blood as it relates to the child,
the subject of the custody application;
- the proposed plans for the care and upbringing of the
child.
In considering an application for custody and determining
the best interests of the child, a Court will, where possible,
take into consideration the wishes, views and preferences
of the child. Those wishes, views and preferences may be
expressed by a lawyer for the child appointed by Order of
the Court from the Office of Children's Lawyer.
Why is it necessary for the person appointed to have custody
of the child, to apply to the Court for a permanent order
for custody within ninety (90) days if the person "entitled
to custody" of the child has carefully considered and
selected this person? The Courts have a parens patriae (which
means literally parent of the country) duty to children
in our society to always ensure that decisions with respect
to their custody are in their best interests. Wills are
not always reviewed as frequently as they should and they
may be outdated at the time the parent dies. By stipulating
that an application for permanent custody must be made to
the Court by the appointee, the Court has an opportunity
to review the appointment in light of the current circumstances.
The Court will take the decreased parent's wishes into consideration.
The Court will review the major considerations to determine
the best interests of the child. The Court also considers
the relationship the appointed person had with the appointing
parent and the child before the parent died. There may have
been a sudden change of events though: For example, the
person appointed may now be a convicted pedophile, or the
surviving parent appointed by the deceased parent may have
murdered the deceased parent. Under such circumstances,
the Court would decide it was not in the best interests
of the child for this person to have custody.
In spite of the appointment, a parent of a child not appointed,
or any other person not appointed, may apply to the Court
for an order respecting custody of the child. A "parent
of a child" could include the "access" parent
of a child (if the parents were separated and the decreased
parent had custody of the child), or even the stepparent
of the child. "Any other person" could include
grandparents, or close family friends applying to the court
for custody of the child. In my opinion, the application
by this parent of a child, or any other person interested,
should be made to the Court soon after the deceased's death
and before the application to the Court by the person appointed
as custodian of the child, is finalized.
In most cases, if a parent "entitled to custody"
has carefully considered and selected the person appointed
in their Will to have custody of the child, then dies, and
there are no sudden changes of events that would affect
the eligibility of that person, the Court will probably
determine it is in the best interests of the child that
he or she remain in the custody of that appointee. Usually,
the person appointed by Will is the surviving parent. If
the person appointed by Will is not the surviving parent,
but a family member or friend, and the surviving parent
is desirous of being granted custody, the surviving parent's
application for custody will be given very serious consideration
by the Court because as already stated, a parent's right
or entitlement to custody is enshrined in the Act. A family
member or friend does not have the same right or entitlement.
This is a very important point for separated parents who
do not wish the other parent to have custody of the child
- particularly if there was a custody battle over the child.
Accordingly, a separated parent with the child in his or
her care who does not wish the other parent to be granted
custody of the child if he or she dies, would be wise to
do the following:
- obtain de jure custody by means of a separation agreement
or court order;
- have a Will prepared and in it, appoint the family member
or friend you wish to have custody of your child if you
die;
- set out the reasons why you chose this person and why
it is in the child's best interests for this person to
have custody; and
- set out the reasons why you did not appoint the other
parent and why you do not believe it would be in the best
interests of the child to be in the custody of that parent.
Depending on the situation, you would state whatever facts
showed that custody to the other parent would not be in
the best interests of the child . You should also set out
the effect this had on the child.
If a person "entitled to custody" has not appointed
a person by Will to have custody of a child, and that person
dies, an application for an order for custody will have
to be made to the Court by a person desiring custody of
the child. A declaration or affidavit signed by the parent
"entitled to custody" appointing a person to have
custody of the child if he or she dies, is not sufficient
- there must be a Court order for custody. The parties to
the application would be the same as mentioned above and
any decision made by the Court would be on the basis of
the best interests of the child. The exception to this rule
would be if there was a surviving parent. A surviving parent
would not have to apply to the Court for an order for custody
by virtue of statute (section 20 of the Act mentioned above
equally entitles a parent to custody of a child) and by
virtue of the common law that sole legal custody of a child
vests in the surviving parent without the necessity of an
order of the Court. Regardless, there are some cases where
the surviving parent applied to the court for an order for
custody anyway to confirm their status as the sole custodial
parent.
What about the maintenance of the child of the deceased
parent? That is the subject for another article.
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The above is not intended to constitute
legal advice. Please contact a lawyer to clarify your
legal rights.
