This is the final article in the POA series, focusing on the topic of “children”. In this context, the governing law in Ontario is the Children’s Law Reform Act (CLRA).
First, we need to clarify the distinction between two key concepts:
A custodian is the person appointed in a will to have custody of a child, while a guardian is the person appointed to manage a minor’s property.
For example, when someone dies and has appointed a “custodian” in their will, that person must go to court to obtain permanent custodianship. However, being appointed as custodian does not automatically make them the guardian of the minor’s property.
In general, the concept of a “90-day” limit is crucial. For instance, a testator may state in their will, “I appoint Mr. X to be my child’s custodian and guardian for 90 days.” However, they should avoid saying something like “I appoint Mr. X as my child’s permanent custodian/guardian,” as the decision on permanent status is up to the court to approve or reject.
Under s.20(1) CLRA, both parents are equally entitled to custody. Therefore, when one parent dies, the surviving parent automatically assumes custody without needing a court order.
According to s.61(4) CLRA, a testamentary appointment of custody is effective if:
- Both parents with joint custody die at the same time.
- The appointment is made by a parent with sole custody.
- For example, if a divorced mother with sole custody dies, her child will automatically go to the father. He does not need to seek court approval after 90 days to gain custody of his own child.
Additional Notes:
Consent of the Appointed Person:
s.61(6) CLRA states that a testamentary appointment is only valid if the person appointed consents to the appointment.
Only Joint Appointments are Effective
If one deceased parent appointed person X and the other appointed person Y, neither appointment is effective.
However, if deceased parent F had appointed X and Y together and deceased parent M had appointed Y and Z together, only Y’s appointment would be effective.
A fundamental principle is that, no one has a permanently vested right to the custody or decision-making responsibility for a minor. The child’s best interests are always the primary consideration.
Under s.61(7) CLRA, a testamentary appointment of guardianship over property expires 90 days after it becomes effective. During this period, the appointed guardian must apply to the court to extend the guardianship.
It’s important to note that the court’s appointment of a guardian always takes precedence over a parent’s testamentary appointment, as the court’s role is to ensure decisions are made in the best interests of the child.
A will can authorize a trustee to distribute funds to a child’s parent, custodian, or guardian.
However, the fiduciary responsibility to manage the funds for the benefit of the child remains with the trustee, even if distributions are made to the custodian or guardian.
First of all, there is no inherent right for a parent or custodian to manage the property or assets of a minor child.
For instance, if a child receives a million-dollar settlement from an injury, the parents do not automatically gain control over the child’s money. While parents naturally have custodial rights over their children, managing their property requires a formal court appointment as the child’s guardian of property.
Speaking of testamentary appointments of guardianship, it is temporary, lasting only for the 90-day period, meaning after which the guardian must seek court approval to continue in the role.
If there is no surviving parent, the trustee must pay the child’s estate funds, including life insurance proceeds, into court. These funds are held until the child reaches the age of majority or a new guardian is appointed.
If a new guardian is appointed and the child’s benefits are transferred, the Office of the Children’s Lawyer (OCL) must be notified.