If you are a parent, you have undoubtedly asked yourself this question. Your desire to provide the necessities of life for your children in the event you should die may have led you to consider making a will. In addition to ensuring your children’s material well-being, choosing the person who will ensure they are cared for is an equally, if not more important, concern. That person is known as a testamentary guardian.
In many cases, your spouse and the biological parent of your children is the most natural choice to carry on as guardian after your death and the courts are not involved. However, what if the unthinkable happens and both you and your spouse die? What if your spouse is already deceased or is unable to care for your children?
These and other questions below are some of the most common issues that willmakers face when planning for the guardianship of their children.
1. What is a guardian?
A guardian is the person who has power over the person and estate of a child. The power is broad, and includes where and how the child will live, what activities they will participate in, and how their estate will be managed. There are limits to this power, but as long as the guardian acts honestly and in the best interests of the child, they may make most decisions about the child without interference. In most cases, a guardian is either determined by the birth and family situation of the child under the Family Law Act, SBC 2011, c 25 (“FLA”), or is appointed by a parent under the terms of a will pursuant to s.53(1) of the FLA. In certain cases, the state may become the guardian of a child or the court may appoint a guardian.
2. Who is my child’s guardian now?
In British Columbia, section 39 of the FLA determines the identity of your child’s guardian, subject to a court order or the terms of an agreement between the parents. Section 39(1) provides that both parents of a child are joint guardians while the parents live together and after they separate, unless a contrary provision appears in a separation agreement or court order made before or after the separation, per s.39(2). Under s.39(3), a parent who has not resided with their child is not a guardian of the child, unless they are a parent by virtue of a written agreement under s.30 of the FLA, the parent and all the child’s guardians make an agreement that the parent in question is a guardian of the child, or the parent regularly cares for the child. A person who marries or enters into a marriage-like relationship with a child’s guardian does not become a guardian of the child by virtue of the relationship.
3. What if I die without appointing a guardian?
In most cases, a surviving parent who is also a guardian will continue as guardian under s.53(3) of the FLA. However, if the surviving parent is not already a guardian, they do not automatically become one upon the death of the other parent, per s.54 of the FLA. Unless the surviving parent has been appointed guardian by the will of the other parent per s.53(1) of the FLA, they must apply to the court to be appointed a guardian under s.51 of the FLA.
4. What if there is no surviving parent and I have not appointed a guardian?
Where there is no surviving parent, and no guardian has been appointed, the court may hear applications to appoint a guardian under s.51(1) of the FLA. Under s.51(4), a child who is over 12 must consent in writing to the appointment unless the court is convinced that it is necessary in the best interests of the child.
5. What if someone challenges my choice of guardian?
Under s.51(1) of the FLA, a court may, on application, remove a guardian appointed under the FLA or by a will. This means that the court may remove a guardian appointed by a parent in their will if another family member or person applies to be appointed guardian under s.51(1). Per s.37 of the FLA, the court’s only concern is the well-being of the child.
The case of D.S. v. L.F, decided under s.30(1) of the now-repealed Family Relations Act, RSBC 1996, c 128 [Repealed] is illustrative: the mother of two young girls died and had appointed her close friend guardian of her two young daughters. The deceased had not been on good terms with her parents, the grandparents of the children. The guardian also had conflict with the grandparents but decided that the girls should live with them while she worked in the Yukon. The grandparents brought an application for removal of the guardian and appointment of themselves in her stead under s.30 of the Family Relations Act. The court considered the best interests of the children and decided that the grandparents should have sole interim guardianship of the children, with a continued right of access to the now ex-guardian. This case is an example of how the testamentary intentions of a parent concerning the guardianship of their children after death may be overridden by a court concerned for the best interests of the children under the FLA.
If you have questions about guardianship or wills and estates, please feel free to contact one of the lawyers in our Wealth Preservation + Estate Litigation Practice Group.