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Who will have custody of your children?

Is it up to you who will have custody of your children after your death? Not necessarily.

In a lecture about Halachic Wills, Rabbi Moshe Taub spoke about a young Catholic woman who converted to Judaism. She did not have a will, so no one was appointed as guardian of her child. While it was natural that the maternal grandparents applied for custody, the prospect of this child being raised as a Catholic was the antithesis of what the mother wanted. What ensued was a battle to keep that Jewish child within the fold. How might this have been avoided?

There are many important reasons why people should have a will. For people with young children, an important reason to make a will is to protect your children by letting the court know who you feel is most capable of taking care of them. The first step is to speak to a competent lawyer and ensure that the person who you want to have custody is appointed as the guardian in your will. Second, confirm that the person you chose will accept that appointment and take the necessary next steps to make the appointment permanent. It is also very important to recognize that the decision of who has ultimate custody of your child is not really up to you.

In Ontario the person who has custody of their child may only appoint the person they want to have temporary custody. The law makes it very clear that if two parents share custody they have to agree about who will be the child’s guardian. So, for example, if parents have joint custody and a mother dies, first the father retains custody even if the mother’s will appoints someone else as guardian. If there is an unspeakable tragedy and both parents die at the same time, it is important that the parents’ wills appoint the same guardian because otherwise neither appointment is valid. Even if the parents agreed, a very important thing to remember is that the appointment is effective for only 90 days after the testator’s death. So what happens after 90 days?

Any person seeking permanent custody may start an application under Section 21 of the Children’s Law Reform Act. In the situation described above, even if the young mother appointed her late husband’s Jewish parents as temporary guardians, there would be nothing stopping the maternal Catholic grandparents from seeking permanent custody. So, besides naming her spouse’s parents as guardians, what else could the mother have done?

Over and above the appointment under a will, it is very important to document your reasons for the choice of who you want to be the guardian of your children. Keep in mind that, if there is ever a dispute, the courts will be looking to Section 24 of the Children’s Law Reform Act and the case law for their definition of the best interests of the child. The statute indicates that the court should consider all of the child’s needs and circumstances. It then says “including” and lists eight factors. The key here is that the word “including” provides the court discretion to include other factors as well. Often religion is one of those issues. The issue of best interests of the child often comes up in family law matters and since the person with custody determines the religion of the child it is one of the factors courts take into account. For the court, which ultimately decides the issue, it would have been helpful if the mother left her lawyer with instructions explaining why she wanted her child raised as a Jew and how it was in the child’s best interests.

Hindsight is always 20/20 and it is certainly not the intent of this short survey of the law to criticize the parents of the child who did not make a will or the maternal grandparents who acted in what they thought were the child’s best interests. This unfortunate story was retold to underscore the necessity to make a will and to suggest some steps that could be taken to safeguard children’s best interests after their parents’ demise.

Read original publication:  Who will have custody of your children? in the Jewish Tribune

Toronto Estate Litigator - Charles Wagner

The author of this blog is Charles B. Wagner. Charles is a Certified Specialist in Estates and Trusts and partner at Wagner Sidlofsky LLP.

This Toronto office is a boutique litigation law firm whose practice is focused on estate and commercial litigation.

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