How Do You Legally Choose a Guardian for Your Child in Ontario?

The short answer: In Ontario, a parent can name in their will who should care for their child after their death, but the appointment is only effective for 90 days. The person named must apply to the court for a permanent appointment, and the court decides based on the child's best interests.

Have you put off creating your will because you can't choose a guardian for your child? If so, you're not alone. This is a big decision with many factors to consider. In a worst-case scenario that no one likes to think about, it could be the biggest decision of your life.

What happens if you die without naming a guardian for your minor child?

If you die without naming a guardian, three things can happen:

1. A friend or family member may come forward and ask the court to be named as your child's guardian.
2. The court may have to decide. If several people want to be named, the court will decide who would be the best choice for your child.
3. If there's no option, your child could be placed in foster care until a guardian can be found.

How does naming a guardian in your will work?

The guardianship clause in your will tells the court who you want to take care of your child immediately after you die. A few important points:

• The appointment lasts 90 days. After that, the person you named must apply to the court for a permanent appointment.
• The court makes the final decision. It will consider who you named in your will, but it also considers any objections, and its focus is your child's best interests.
• The person must consent. They need to agree to act.
• If both parents die at the same time, or it's unclear who died first, both wills need to name the same person for the appointment to be effective.

In Ontario law, the person who cares for and makes decisions for a child is said to have "decision-making responsibility," which was previously called custody. Most people simply call this person a guardian.

Where do you start when choosing a guardian?

Start with a few questions:

• Do you know someone who shares your values about lifestyle, education, and religion?
• If anything happened to you right now, who would be the first person to come forward and offer to take care of your child?
• Would the guardian you choose put your child's best interests first?

How do you legally choose a guardian?

1. Ask the person you have in mind. Make sure they agree to act as your child's guardian. If they say yes, give them a copy of your will so they can act quickly if something happens.
2. Make it official with a will and estate lawyer. A professionally prepared will contains everything necessary to carry out your wishes.
3. Tell the people who need to know. If family or close friends may contest your choice after your death, make your wishes known. A legal battle over guardianship would be devastating.
4. Review your choice every few years. You can always change your mind and have your will updated. It's good practice to revisit your entire will every few years.

What about the money you leave for your child?

Deciding who will care for your child is separate from deciding who will manage any money or property you leave them. A lawyer can help you plan for both as part of your will.

Frequently asked questions

Can I name a guardian for my child in my will in Ontario?
Yes. A parent can name in their will who should have decision-making responsibility for their child after their death.

How long does a guardian named in a will have authority?
The appointment in your will is only effective for 90 days. After that, the person you named must apply to the court for a permanent appointment.

Will the court follow my choice of guardian?
The court will consider your choice, but its decision is based on your child's best interests, and it will also consider any objections. That's why choosing carefully, and telling the people who need to know, matters.

What happens if I don't name a guardian?
A friend or family member may ask the court to be named guardian, the court may have to decide between several people, and if there's no option, your child could be placed in foster care until a guardian can be found.

Do both parents need to name the same guardian?
If both parents die at the same time, or it's unclear who died first, both wills need to name the same person for the appointment to be effective.

Can I change my mind about who I've chosen?
Yes. You can update your will at any time, and it's a good idea to revisit your decision, and your whole will, every few years.