Henderson Heinrichs LLP

Who will care for my children when I’m gone?

Kevin Heinrichs

Written by: Kevin Heinrichs (View All Posts • View Bio) Published: November 2, 2011

Categorized: Custody and Access, Divorce, Legislation Analysis, Wills and Estates.

When there is a separation or divorce, estate law and family law are very much intertwined with one another.  At Henderson Heinrichs we have found that our clients are often justifiably concerned with who will care for their children in the event that the custodial parents pass away.  The answer is not straightforward and there are many factors to consider.  Below are some of the applicable provisions that you may have to consider when addressing this issue.

  1. In a situation in which both parties have joint custody and joint guardianship of the children:
    1. Pursuant to s. 29(1) of the Family Relations Act, if a joint guardian dies, the surviving guardian will continue as sole guardian of the children.
    2. In a situation  in which one party is the sole guardian of the children and the other party has no guardianship or custodial rights:
      1. Pursuant to s. 29(2) of the Family Relations Act, if the sole guardian dies, a surviving parent of the children who is not a guardian at the time of the deceased’s death does not become a guardian unless the parent has been appointed under section 50 of the Infants Act or is, by order, appointed under section 30 of the Family Relations Act.

That section of the Infants Act states:

  1. i.      That a parent may appoint, by deed if (the parent is) under age, otherwise by deed or will, a guardian to act in his or her place on his or her death as guardian of an infant child under 19 years; and,
  2. ii.      If either parent dies, the surviving parent may by will transfer part or all of his or her rights and duties to custody, control and management of their infant child’s property, but not the infant’s services and earnings, to a suitable person.
  3. Pursuant to s.  30 (1) of the Family Relations Act, a court may, on application:
    1. i.      appoint a guardian, or
    2. ii.      remove from office a guardian appointed or acting by virtue of this Part or a deed or testamentary appointment.
  4. Pursuant to s.  30 (2) of the Family Relations Act, if a child is over 12 years of age, a court must not make or give effect under subsection (1) to an appointment unless:
    1. i.      the child consents in writing to the appointment, or
    2. ii.      if the child withholds consent to the appointment, the court is satisfied that the appointment is necessary in the best interests of the child.
  5. Pursuant to s.  30 (3) of the Family Relations Act,  a person other than the father or mother of a child must not, under subsection (1) (a), be appointed guardian unless the court is satisfied that each parent of the child consents in writing to the appointment or, if a necessary consent has not been given, that:
    1. i.      the parent who could give or withhold consent is not reasonably available, or
    2. ii.      the consent is being unreasonably withheld.
  6. Pursuant to s.  30 (4) of the Family Relations Act, an order must not be made under subsection (1) unless the present and prospective guardians have been given notice and an opportunity to be heard in the proceeding.
  7. Finally, s 30 (5) of the Family Relations Act stipulates that if satisfied that circumstances warrant, the court may grant an exemption from subsection (4) respecting a present guardian.

Planning for your children’s future is a complex task and the intersection of family law and estate law makes it doubly so.

The best way to ensure that your wishes with respect to any issue being carried out after your death and that your children’s best interests are protected to is to obtain advice from independent legal counsel who can direct you through this legislative maze.  Here at Henderson Heinrichs our lawyers are capable of advising you with respect to such a complicated issue.


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