Appointing Guardians for Minors

Axess Law can show you how to care for your children by assigning guardians for legal custody and their property after you die.

Arranging Legal Custody in Your Will

When you give a guardian legal custody of minor children after you die, they assume all the same rights and responsibilities you had as a parent. For that matter, you can appoint as many guardians as you think would be helpful.

Your choice for a guardian can live anywhere, inside or outside Canada. While moving your children may upset their routine, it’s up to you to make choices you believe are in their best interests. Ontario family court and your next-of-kin may disagree, but guardians and minors old enough to speak for themselves also have a right to be heard by the court.

  1. Appointments Are Temporary

Your appointees are temporary and must apply to the court within 90 days to get permanent custody. They may be turned down if a court decides it is not in your children’s best interests or if your spouse or former spouse survives you.

Normally, a non-custodial parent assumes custody. If you both die, the court expects your Wills to specify who should take custody of your children. Dying without a Will leaves everyone in a state of limbo.

  1. Sole and Joint Custodians

Axess Law can draft your Will to specify your preferences for guardian, provided you have sole custody of your children. If you do not, you must consult with the other custodian and reach a consensus before finalizing your Will.

How It Works

01

Book Your Appointment

Click on ‘Get Started’ button to submit a request to meet with the Lawyer. Our customer care team will reach out to you within minutes to book your appointment. 

02

Submit Your Documents

On the day of your appointment, our lawyer will verify your identification and walk you through the intake process where they confirm your contact information.

03

Draft Your Will With A Lawyer

Our lawyer will ask you a series of questions regarding your executor, beneficiaries, and make a note of your wishes before drafting a Will accordingly.

04

Execute Your Will With A Lawyer

Our lawyer will cross-check each page of the Will with you and if you are happy with the draft, the Will is signed and executed by the lawyer on the same day.

Documents We Need

We offer a number of affordable options to give you peace of mind in knowing that your family will be taken care of the way you want. Bring the following for your online video conference (anywhere in Ontario) or in-person meeting at our Greater Toronto Area law offices:

Axess Law will ask you for two pieces of ID. Proving your identity is obligatory to prevent fraud. You may use either two pieces of primary ID or one primary and one secondary ID These include:

  • Driver’s license
  • Canadian passport
  • Ontario photo card
  • Canadian citizenship card with photo
  • PR card with photo
Our lawyers will ask to see records of any existing debts that you may have. These would include debts such as car loans, mortgages, or student loans.
When drafting a cohabitation agreement, bring us your personal statement of assets. This would include documents such as stocks, investments, or real estate deeds.
When booking an appointment, our team will make a note of your contact information. This would include your name, email address, and telephone number.

Arranging Guardians of Property

Your children’s property is distinct from custody matters. Since you may not be the custodian of your children’s possessions, your choice for the guardian of the property must be affirmed by an Ontario court.

Property can include money from grandparents, investments, or another source of cash, such as bequests from you. Your appointee can invest your children’s money and decide how to spend it for our children’s benefit, For more on that, see Providing Financially for Your Children.

Steps for Appointing Children's Guardians

Divorced, separated, or single, wherever possible, discuss your wishes for your children’s custody and care with their other parent. Reaching consensus is best since if you don’t, a court can overturn your decisions and award custody to the surviving parent. Courts don’t make child custody decisions lightly. (See A Case of Temporary Custody for Ontario Grandparents if you’re unfamiliar with Ontario family law.)

Ensure those you propose to appoint legal custodian and guardian for property agree to assist your children. The court will overrule you if your appointees are reluctant or unwilling to be guardians.

Line up alternates in case, when the time comes, your choices fall ill, die, or are unable to be guardians.

Suggest your appointees get legal independent advice so they understand their roles and responsibilities as legal guardians or guardians of property.

A court appointment is required to get guardianship of your children’s property once you include it in your Will. Until then, even though you are their parent, you are not considered to have access to your own children’s property.

Your appointee must agree to be the guardian and apply to the court within 90 days to get permanent guardianship. Since courts generally prefer a surviving parent to be guardian, if it is important to show in your Will why you are nominating someone else.

Ensure appointees understand the urgency of applying for permanent legal custody and guardianship of property. Decisions in your Will are only temporary until an Ontario court approves the arrangement.

Courts heed their own judgment on who should be legal custodian and guardian of property. Be aware a judge may overturn your wishes in favor of a surviving spouse. Fortunately, courts are sensitive to children’s wishes and usually ask children what they would like to have happened. Remember to include pets in your Will — they can be precious to your children.

Your appointee may be required to sign a guardianship bond issued by the Ontario Public Guardian and Trustee. The bond will commit your guardian is carrying out their legally required obligations and protecting your children’s financial interests. The bond is meant to prevent neglect or theft by your children’s guardians after you pass.

Financially Provide for Your Children

Your Will can include bequests for minor children, but since they can’t inherit money directly, you must choose how to distribute your estate until they are 18. You can:

Pay funds in trust to a surviving parent
Pay money into the court
Pay funds in trust to a court-appointed guardian of property
Create a trust that holds your children's money

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Convenient Appointments

Axess Law gives you the choice of booking an online or in-person appointment. Our lawyers are available 7 days a week, at times convenient for you. We can meet in person, by phone, email, or via a remote video call. In addition to these, there are 5 Axess Law offices located across the Greater Toronto Area – all with onsite parking or easily accessible by public transit.

Some FAQs

Your Will can include bequests for minor children, but since they can’t inherit money directly, you must choose how to distribute your estate until they are 18.
Our lawyers prepare an individual or mirror Wills and refer you to trusted legal partners for advice on how to:

  • Pay funds in trust to a surviving parent(s), for amounts under $10,000.
  • Pay money into the court — an accountant for the Ontario Superior Court of Justice will manage and invest their money until they turn 18.
  • Pay it in trust to a court-appointed guardian of property you have named or the court has selected.

Create a trust that holds your children’s money — the trustee, who can be your estate trustee or someone else, will distribute money to your children’s guardians as needed

Any option you choose has pros and cons.

When you choose to put money into court, your children can withdraw their money when they turn 18. But they will have no access to it until then and the court will charge a 3% fee on any investment income or payments made to guardians before then. A care and management fee will also be charged.
Giving their money to their guardian of property to manage can be a good option, provided your choice for a guardian is honest and prudent.
These are best managed through a separate trust.
As a final gift, you could ensure any remaining assets in your Will left to a surviving spouse go to your children after your spouse passes on. Your estate residue, as it is called, could be a nifty nest egg for their future.
You can plan your Will and estate by video call anywhere in Ontario, although you will need to arrange to sign and have your Will witnessed in person. Appointments can be arranged 7 days a week, day or evening, at our open law offices, Toronto area, and Ottawa. Just call toll-free at 1-877-402-4207 or 647-479-0118 in Toronto or use our online booking form.

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