Guardianship of a Minor | Family Law | I have a legal question
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Q - If I die who takes care of the children?
A- Usually, if the child's other parent is alive, he or she takes care of the children. The surviving parent becomes sole guardian if you have been living together or if you have joint or shared custody. However, the two of you may want to appoint each other in your wills or in a guardianship document, and also in your separation agreement if you are separated. This backs up your wishes in case someone (a grandparent, for example) should apply to be made guardian instead.
If you are a single parent with sole custody, the situation is much the same. Generally speaking, the child's other parent still has the right to become guardian if something happens to you. However, as a single parent it is more important that you appoint the other parent in writing. It could make things more straightforward if the time should come when a child needs a guardian.
If you are a single parent with sole custody and don't want the other parent to be guardian, you can name someone else as guardian. You should see a lawyer about this. The child's other parent may contest your choice in court and will probably be appointed guardian, unless the judge decides he or she is unsuitable.
A lawyer can help you write a statement of your wishes and concerns, and can make sure that your reasons for choosing someone else are clearly documented. Your statement can be critical to the court's decision.
Q - What happens if parents die without appointing a guardian?
A - The Court will choose a guardian from those who step forward. If no one does, the child will become the ward of a Children's Aid Society or other appropriate agency.
Q - How long does a child need a guardian?
A - Until age 19, the legal 'age of majority' in Nova Scotia.
Q - How do I appoint a guardian for my child?
A - There are two types of guardianship under Nova Scotia's Guardianship Act:
1) the first is care and custody of the child, where a "guardian" is appointed;
2) the second is management of the child's share of an estate, where a "trustee" is appointed.
You can appoint a guardian either in your will or in a separate guardianship document (a separate paper signed and witnessed with the same formalities as a will). A separate document is often recommended because it can be used if you are alive but can't communicate - for example, if you are in a coma.
You can hire a lawyer to do the paperwork and be present at the signing, or you can do it on your own. However, it is a good idea to check with a lawyer to make sure your wording is clear and that you have followed correct procedures.
You will need two adults to sign and witness your signing of the document. They must be at least 19. Neither they nor their spouses can stand to gain any money from the document they are signing. For example, if you are appointing the guardian in your will, the witnesses cannot be your beneficiaries (people who are entitled to receive something under your will).
Q - Are there any rules about who can be a guardian or a trustee?
A - They must be 19 years or older, and mentally competent. This means that they must be competent to make decisions and understand the consequences of their actions. You should also make sure that they are willing and feel able to take on the responsibility of caring for your child.
Q - Must the Court approve my choice of guardian?
A - No. There is no process of registration or approval. If something happens to you, the person you have appointed will automatically become guardian. Your choice will stand unless someone appears before the Court and successfully contests it.
Q - What Court looks after guardianship?
A - In the Halifax Regional Municipality and Cape Breton the Supreme Court (Family Division) hears cases involving guardianship and in other parts of the province the Supreme Court of Nova Scotia.
Q - Does the guardian also become responsible for the money or property I leave to my child?
A - No. Under Nova Scotia's Guardianship Act, a "guardian" is appointed to have care and custody of the child and a "trustee" is appointed to manage the child's share of your estate.
You can also appoint someone to look after the financial side of things by naming them as 'trustee' in your will, stating that they will hold the child's share of your estate in trust.
The trustee will manage the funds or property until your
child reaches adulthood, making financial decisions about investment, etc. Also, the trustee will provide your child's guardian with funds from your estate to cover, or help with, the costs of raising your child. In your will, you can set out terms and instructions for the trustee to follow.
Q - Can I name the same person as guardian and trustee?
A - Yes, and this is what usually happens. However, if you are unsure whether the person you want to name as guardian can handle both tasks, you should talk with your lawyer.
Q – Does a trustee have to be bonded?
A - Generally, no. The trustee may have to be bonded if he or she is also the executor of your will, or if he or she does not live in Nova Scotia.
Q - If the guardianship is contested, how will the Court decide?
A - If the person contesting your choice is the child's other parent, he or she will probably be appointed guardian unless the court has reason to believe he or she is unsuitable.
In all other cases, the court will consider all parties equally and base its decision on what is best for the child. Your wishes will be taken into account and given considerable weight. However, the court may overrule you if the person you have chosen is unsuitable (involved in crime, for example), or if the contesting party presents a strong enough case.
The factors the judge may consider include:
- how well the child knows the person,
- whether there is a blood relationship,
- how much the child's life would be disrupted (for example, by having to move), and
- if there are siblings, whether they would be able to stay together.
Children's wishes may also be considered, and will be given particular weight if they have reached age 14.
Q - What if I die without appointing a trustee?
A - In this case, a "guardian of property" will be appointed by the Supreme Court to manage the child's share of your estate. The Court will choose someone who steps forward and is found to be suitable.
Generally, in the case of a court appointment, the person will have to be bonded. This means he or she will have to provide a personal bond, or arrange for a 'surety bond' through an insurance agent. Bonding can be a complicated process. Generally there are fees involved, which are charged to the estate.
The purpose of bonding is to provide a financial safety net. It protects the child from any financial misconduct by the trustee.
If no one makes an application to be appointed guardian of the finances of the child under the Guardianship Act the Public Trustee of Nova Scotia is automatically the guardian of the finances or estate of the child's property. The Public Trustee of Nova Scotia is without court order the guardian of the finances/property of every child who resides in Nova Scotia. No court appointment is required for the Public Trustee to act. As well, the Public Trustee is authorized to receive funds on behalf of any child if there is a gift or money coming to the child but no guardian or trustee has been named. For example, if a child is the beneficiary of a life insurance policy but no guardian or trustee has been named to handle the proceeds, the Public Trustee may receive and manage the proceeds of the policy on behalf of the child until he or she reaches the age of nineteen.
The Public Trustee will manage and hold the funds in trust for the child until the child reaches the age of nineteen which is the age of majority in Nova Scotia. When the child reaches the age of majority the funds will be turned over to the child.
Q - What if I have no money or assets to leave for my child?
A - In this case, the guardian who has care and custody of your child will have to provide financial support. There are some government departments that can help. The guardian can apply to Child Tax Benefits to receive the same assistance that a parent would receive. Also, the Canada Pension Plan provides monthly benefits to children with a parent who has died, provided that the deceased parent paid into Canada Pension. These benefits go to the guardian until the child turns 18. They are then paid directly to the child, if he or she is still enrolled in an educational institution, until age 25.
Q - Where can I get more information?
PO Box 6855670 Spring Garden Road, Suite 405Halifax, N.S. B3J 2T3
- Canada Child Benefit, Government of Canada: www.cra-arc.gc.ca/benefits/
1-800-387-1193 (toll free)
- Canada Pension: canada.ca
1-800-277-9914 (toll free)
Last updated January 2017