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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 wanted1.  What ensued was a battle to keep that Jewish child within the fold.  How might his have been avoided?

There are many important reasons why people should have a will2. For people with young children an important reason to make a will is protect your children by letting the court know who you feel is most capable of taking care of them. 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 custody3. The law makes it very clear that if two parents share custody they have to agree about who will be the child’s guardian4. 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 valid5.  Even if the parents agreed, it is very important thing to remember is that the appointment is effective for only 90 days after the testator’s death6.  So what happens after 90 days7?

Any person seeking permanent custody may start an application under section 21 of the Children’s Law Reform Act 8.  In the fact 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.9  For the court who ultimately decides the issue it would have been helpful if the mother left her lawyer with instructions 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.

  1.   Rabbi  MosheTaub first wrote about this story in Ami Magazine January 2011.  In summary a single woman had artificial insemination.  She was converted by an Orthodox Jewish court and then gave birth.  Shortly thereafter, she passed away from a heart attack.  Her Catholic family wanted to cremate her and take custody of the child. Rabbi Taub’s article describes the Buffalo Jewish community’s battle to ensure she was buried in a Jewish cemetery and to preserve the Jewish identity of her young son.  It is a stark reminder of the value and seeing to the timely execution of a last will and testament regarding the custodial choice of a parent for her children and issues regarding burial.
  2.   For a brief review of these issues I encourage the reader to see the Trusts, Estates and Succession Planning Bulletin by Marni Whitaker and Shiela Crummey at
  3.   See section 61(1) Children’s Law Reform Act which states, “A person entitled to custody of a child may appoint by will one or more persons to have custody of the child after the death of the appointor.”  It is important to distinguish between appointment of a person to have temporary custody of a child and the person who be guardian of the child’s property under section 61(2).
  4.   See section 61(4)  of the Children’s Law Reform Act which states, “An appointment under subsection (1), (2) or (3) is effective only, (a) if the appointor is the only person entitled to custody of the child or who is the guardian of the property of the child, as the case requires, on the day immediately before the appointment is to take effect; or (b) if the appointor and any other person entitled to custody of the child or who is the guardian of the property of the child, as the case requires, die at the same time or in circumstances that render it uncertain which survived the other. R.S.O. 1990, c. C.12, s. 61 (4).
  5.   See section 61(4)  of the Children’s Law Reform Act.
  6.   See section 61(7)  of the Children’s Law Reform Act which states, “An appointment under subsection (1), (2) or (3) for custody of a child or guardianship of the property of a child expires ninety days after the appointment becomes effective or, where the appointee applies under this Part for custody of the child or guardianship of the property of the child within the ninety-day period, when the application is disposed of.
  7.   Paul E. Trudelle of Hull & Hull wrote a very good article about this topic in The Probater, Volume 17, Number 3, September 2012.  Mr. Trudelle’s article is available on line and can be accessed at September 2012 – Hull & Hull LLP
  8.   Section 21(1) of the Children’s Law Reform Act provides that a parent of a child or any other person may apply to a court for an order respecting custody of or access to the child or determining any aspect of the incidents of custody of the child.  There is a self-help guide put out by the government. I urge the reader who wants to apply for a custody or access order to seek out competent legal advice.  This will be especially important if two or more parties are seeking sole custody.  The Ontario Governments self help guide is available at Asking for a custody or access order – Ministry of the Attorney
  9.   For one judge’s analysis of this issue I refer the reader to Nelson J.’s decision of Libbus v Lbbus  62 RFL (6th) 416 which can be found on line at .  It this case the parents were arguing about schools for their two children.  In paragraph 9 of the decision the judge stated, “In focusing on the best interests of A— and B–, I have been asked by both parents to consider whether the children’s Jewish identity can best be preserved through attendance at Uxbridge Public School— which they have been attending — or at Woodland Public School[ which is close to their mother’s house.”  For the purpose of this blog the decision is important because it demonstrates that even though religion is not listed as one of the eight factors being considered under the the Children’s Law Reform Act, maintaining the children’s’ Jewish identity  was the key issue for the judge when ascertaining the children’s’ best  interests.
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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This blog is not intended to serve as a comprehensive treatment of the topic. It is not meant to be legal advice. Every case turns on its specific facts and it would be a mistake for the reader of this blog to conclude how it might impact on the reader’s case. Nothing replaces retaining a qualified, competent lawyer, well versed in this niche area of practice and getting some good legal advice.
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