Married, Common Law or Divorced: Naming a Guardian is Important

Naming a legal guardian for your children when you are married can be difficult, and it comes with different challenges when you are divorced, says Cornwall wills and estates lawyer Michele Allinotte.

Allinotte, principal of Journey Law (formerly Allinotte Law Office), says choosing someone to raise your children if you die unexpectedly is an essential part of your estate planning no matter what your marital status.

“If this is the reason you’re not getting your will done, seek out a lawyer who will help you work through the decision-making process,” she tells AdvocateDaily.com.

It is not uncommon for parents to disagree on a caregiver, Allinotte says. However, failing to have a plan in place means it would be up to the court to decide who will become the caregiver in the event both parents pass away without either naming a guardian.

When parents divorce or separate, the issue could be just as complicated if each one names a different guardian and they die simultaneously, she says. In such cases, the court would be tasked with deciding the best guardian for the children.

When parents divorce or separate, the issue could be just as complicated if each one names a different guardian and they die simultaneously, she says, because neither appointment would be effective. In such cases, the court would be tasked with deciding the best guardian for the children. If parents happened to die within a short period of time, then the appointment of the surviving parent would govern. However, that does not mean that other individuals would not make a competing application, she says.

Allinotte says if a divorced or separated parent who has custody dies, Ontario's Children's Law Reform Act assumes that the surviving parent would get the children, even if a guardian had been named.

“That parent is typically going to be the person the law looks to,” she says. “It’s going to have to be a pretty compelling reason as to why the biological parent of a child should not have custody of them.”

Allinotte says it’s also possible that grandparents might try to seek access in an “acrimonious family situation.”

“They may want to be involved in the upbringing, or you could end up with grandparents fighting with the other parent about custody,” she says.

Allinotte advises taking stock of your situation and what you want to happen to your children in the event of your death.

It’s important to think of all “the pros and cons” when naming a guardian, she says, keeping in mind such things as the potential guardian’s views on education, how they manage a household and religious values.

The most obvious person might live out of town, so it’s essential to consider the effect it might have on other family members, Allinotte says.

As well, she says your first choice could experience a change in health or lifestyle, such as the breakup of a marriage, and may no longer be able to care for the child.

There are contingencies you may not have considered, Allinotte says. For example, your estate must take into consideration what happens if you are the children’s primary caregiver and predecease your former spouse. You may need to appoint a temporary guardian if your ex-partner lives out of town and cannot take immediate custody, she says.

Allinotte says a parent who does not believe their former spouse is capable of caring for the child can let their wishes be known in a letter to accompany their will.

In cases where a parent has sole custody of a child, she says “you can appoint someone other than the other legal parent, and you can explain why, and then the court would have to sort it out.

“If things go horribly wrong, your expression of who you want to take care of your children will at least be persuasive,” Allinotte says.

She notes that “there are some parents who just don’t take on their parenting role," so appointing a guardian is essential.

“You need to think of the different options and provide plugs for all those holes,” Allinotte says.

*This article first appeared on AdvocateDaily.com, by Tony Poland