Offices in Ottawa and Perth
(613) 722-1500

CONTACT US (613) 722-1500

Planning for the Unexpected: Selecting Guardians for Minor Children

Planning for the Unexpected: Selecting Guardians for Minor Children


Posted August 22, 2019

survey from 2018 estimates that 51% of Canadians don’t have wills.  Of those polled, 25% think they are too young, and 23% don’t believe they have enough assets for a will.  Eight percent reported that they didn’t have a will because they did not want to think about dying.

I have heard from parents with young children that one of the reasons they put off making a will is because they do not know who to choose as guardians for their minor children if both parents are deceased.  Undoubtedly, this can be a difficult and emotional topic to think about and discuss.  Even if you have family or friends in your life who would be excellent choices, it’s hard to think about not being around for your children.  Some people don’t have family members or friends they can rely on or who live close by.

Notwithstanding the difficulty of the decision, it is an important one to make.  Section 61 of the Children’s Law Reform Act, R.S.O. 1990, c. C. 12 is the legislation that governs appointments for guardians in a will.  A person who has custody of a child is entitled to appoint one or more persons to have custody of the child after the death of the appointor.

The appointment will expire within ninety (90) days from the death of the appointor unless the appointee applies for custody of the child(ren) within the ninety (90) day period, in which case it will expire when the matter is resolved.

Separated spouses should discuss who they want to appoint as guardians in their will and consider including a provision in this regard in their Separation Agreement.

Ultimately the court retains the authority to determine if an applicant should have custody of the child, regardless of an appointment under the will.  The child’s best interests will be the overarching factor the court considers in granting custody to an applicant.  In the fact of a disputed application, significant deference will be given to the appointment, unless there are reasons it would not be in the best interests of the child to grant custody to the appointee.

Choosing guardians for your children is one of the most important decisions you will make when considering your estate plan.  If you want to ensure your wishes are known, be sure to formalize an appointment in your will.

This blog post was written by Kate Wright, a member of the Family Law, Wills and Estates and Litigation teams.  She can be reached at 613-369-0383 or at

More Resources

Blog |
Business Law, Wills, Trusts and Estates


Posted June 28, 2022

As entrepreneurs, we tend to be optimistic people – that is what I have found, for the most part, and what seems to be part[...]
Blog |
Business Law


Posted June 20, 2022

The Federal Government of Canada recently launched the Canada Digital Adoption Program (“CDAP”) run by Innovation, Science and Economic Development Canada (“ISED”). It is a[...]
Blog |
Estate Litigation


Posted June 13, 2022

Trust companies are often faced with a dilemma when the fees associated with the administration of a testamentary trust exceed the income generated by it. [...]
Blog |
Environmental Law


Posted June 6, 2022

On May 10, 2022, the Alberta Court of Appeal released its opinion in Reference re Impact Assessment Act (the “Act”), 2022 ABCA 165, on the[...]
Blog |
Personal Injury


Posted May 30, 2022

As the warm weather of summer approaches, the number of cyclists enjoying Ottawa’s shared path system is increasing day by day. I have noticed that[...]
Blog |
Family Law


Posted May 25, 2022

Cohabitation agreements and marriage contracts (or “prenups”) are common contracts for couples to enter into prior to moving in together or getting married. Reasons for[...]

Subscribe to Our Newsletter

This field is for validation purposes and should be left unchanged.