What Will Happen to My Kids If I Die?

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If you’re a parent with young kids, you’re often so busy with everyday life that you seldom pause to think about what might happen if something unexpected were to happen and you were no longer around to support your family. Admittedly, this is not a pleasant topic to think about, but if you think about it, planning for such a scenario is one of the greatest responsibilities you have as a parent. You want to ensure that your children will be protected and securely provided for in the event of such an unfortunate situation.

Introduction

This guide takes you through what would happen in most situations, and what you could do to best plan ahead. Please note that this article deals with a situation in which both parents lived together and/or had joint custody of the child(ren). If you are divorced and only one parent had sole custody of the child(ren), then different rules apply. Please also be advised that this article contains general information only, and that you should always discuss your specific situation with a lawyer.

If I Die and there is a Surviving Parent

In the situation where you have a spouse and/or you have joint custody of the child(ren), the surviving parent carries on as the sole guardian of the child(ren). As noted above, this article deals with a situation in which both parents lived together and/or had joint custody of the child(ren). If you are divorced and only one parent had sole custody of the child(ren), then different rules apply.

If Both Parents Die

This is where things can become more complicated, especially if upfront planning has not been done.

If There is No Will

It is the worst case scenario if both parents are deceased and no will has been prepared. By law, only the actual parents (whether natural or adopted) have an inherent right to have custody of their children. Anyone else outside of the parents have to be approved of and appointed by a judge in court. There are 3 possible scenarios:1
1. One person will come forward to take custody of the child(ren)
2. More than one person will step forward and compete to take custody of the child(ren)
3. No one wants to take care custody of the child(ren)

Let’s examine each of these scenarios in turn.

If Only One Person Wants Custody

This typically occurs when the family agrees on who will step forward to take custody. As long as there is sufficient evidence that the person stepping forward will take care of the child’s best interests and passes all background checks, the court will likely approve the proposed person without much issue.

If More Than One Person Would Like Custody

If more than one person would like custody of the child(ren) and a dispute arises, each person will submit applications to the court. The court will have the final say on who is awarded custody. A judge will determine this based on the best interests of the child(ren). A judge will assess different factors such as the family dynamics, living arrangements, caregiving abilities, and so on, of each person claiming custody.2

The unfortunate thing about this process is that it will not happen overnight. And since no will has been made, there has been no provision made for immediate, short term custody. While the court is deciding who should have custody, your child will be under the supervision of the government children’s aid organization.

If No One Wants Custody

In the event that no family or friends are willing or able to look after the child(ren), the child(ren) will be placed under the care of the province. In other words, this means that the child(ren) will be placed in the care of a child and family services agency (or child welfare services), who will place them in an appropriate foster home. An opportunity for adoption may become available after this. If a child is not adopted, once he or she reaches the age of majority (18 in Ontario), they are on their own.

How To Ensure The Proper People Take Care Of Your Children (If Both Parents Pass Away Are Gone)

Have Someone Available For Immediate Care

In the midst of losing loved ones, there is often confusion and stress regarding various practical matters. For those deceased that leave behind minor children, the critically urgent question of what to do with the children quickly arises.

In light of this, families should plan in advance who will look after the children if an emergency arises. This information should be posted prominently somewhere in the household, and the children should also be taught to ask for this person if their parents are unavailable.

By taking these types of proactive steps, some stress can be taken out of a stressful and difficult time.
Have Someone Available for Long-Term Care (Designate A Guardian)
It is important for parents to plan out the long-term care needs of their children should untimely death occur. Although thinking about death and childcare will be difficult, it will bring greater peace of mind knowing a plan is in place for the future should something unfortunate occur.

Parents should discuss with each other who may be suitable to look after their children in the long-term. It is best to have at least two people in mind should one of the people be unwilling or unable to fulfill the role. Parents should then obtain consent from the proposed guardians after discussing the issue with them.

If a guardian is designated in a will to provide care for the child(ren), it is important to note that this does not automatically provide permanent guardianship to that person. In the event that a guardian has been designated, it only lasts for 90 days. (Children’s Law Reform Act, RSO 1990, c C.12, s 61(7)) During this time period, the guardian must apply to the court for permanent custody of the child(ren).

While the court may take different factors into consideration in its assessment of whether the guardian is the best candidate, the court will generally follow the wishes of the parents in the choice of guardian, understanding that the parents were in the best position to determine the best interests of their children. In some cases, however, the court will not uphold the parents’ choice for guardian if the court feels that the person chosen is not able to take proper care of the child(ren). This can happen if other relatives or adults close to the family come before the court to seek custody. The court will then be in a position to examine the evidence before it and decide what is in the best interests of the children. The parents, having thought carefully about their choice of guardian, should adequately prepare evidence to support their choice of guardian in the event that such a situation arises. We discuss this in the following section.

Furthermore, the parents should include a provision in the will that their estate will pay any legal costs associated with the custody application. This will help alleviate the financial burden off the guardian, who will likely incur legal costs in the process.

Create Proper Documents Regarding Your Choice

To better ensure that the courts agree with your choice of guardian , it is helpful to draft up a document that explains why your choice for guardian serves the best interests of the child(ren). You can also outline people who you feel would not be suitable candidates and make this explicit to the courts to make sure your child does not end up with someone you would be uncomfortable with.

A document that shows that the guardian fulfills the following criteria will help to solidify for the courts that your choice is in the best interests of the child(ren):3

The guardian is a relative (by blood or marriage)
The guardian has strong emotional ties with the child(ren)
The guardian is someone with whom the child(ren) would want to live
The guardian is capable of looking after the child(ren)
The guardian has plans for the care and upbringing of the child(ren)
The guardian is in a stable relationship or family situation

After drafting up this document, both parents should sign the document to acknowledge that they both approve of the choice of guardian. This can save stress and time later should someone raise a dispute claiming that one parent wanted him/her as guardian.

Additionally, the parents should also have the guardian sign the document to acknowledge that they consent. This will help to show the courts that the guardian went through a process of discussion with the parents and they are aware of the parents’ request.

Conclusion

Proper will planning helps to ensure that those most precious to you will be taken care of even in the worst of circumstances. By taking some intentional and appropriate steps, greater peace and protection can be had.


  1. Margaret Kerr and JoAnn Kurtz, Wills & Estate Planning For Canadians, 2010, John Wiley & Sons, p. 131 

  2. Children’s Law Reform Act, RSO 1990, c C.12, s 49 

  3. Margaret Kerr and JoAnn Kurtz, Wills & Estate Planning For Canadians, 2010, John Wiley & Sons, p. 137 

About Simon Park

I am a Toronto-based lawyer and a Partner at Park & Jung. You can connect with me on LinkedIn.