Testators do not get the last word over the guardianship of their minor children, but that shouldn’t stop you from naming your preferred caregivers just in case the worst should happen.
Although it thankfully rarely has to be invoked, the appointment of a guardian for young children is one of the most important details in a person’s will.
But a recent case in Ontario’s Superior Court reminds us that it’s the court, and not the parent, that gets the final say over the child’s long-term living arrangements.
According to the ruling, the mother of the 11-year-old at the heart of the case was granted primary parenting time and decision-making rights ahead of the girl’s father in an earlier joint-custody decision issued before she was struck down with brain cancer.
The girl had also lived part of the time with her maternal grandparents, including at the end of her mother’s life, when she moved into hospice care. However, as her condition deteriorated and it became clear that the father would seek primary care of the girl, the mother signed an affidavit expressing her wish for the grandparents to raise her child after she was gone.
The judge hearing the case said he would take the mother’s view into consideration, but opened his judgment by letting all parties know that her wishes were not the determining factor.
“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,” he wrote.
After a fulsome review of the evidence, the judge found that the child’s need for stability favoured an interim schedule with the grandparents as primary caregivers and decision-makers, but with significant parenting time for the father.
Children’s grandparents are a popular choice as guardians for younger testators, but some may prefer to select another family member or close friend, depending on their health, age or location, as well as their ability and willingness to take on the role.
Guardians have 90 days following the parent’s death to apply for the temporary appointment to be made permanent, following which, a judge will decide if it is in the child’s best interests.
It is also possible to split the roles of custodial guardian and guardian for property – the person who handles financial decision-making on behalf of the child – but many parents are happy to grant responsibility for both to the same person.
Whoever you choose to appoint, you should revisit the decision periodically to ensure it still makes sense, as a person’s situation can change at any time.
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