Wills and Estates Planning
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The loss of a parent is a profound tragedy, often followed by complex legal questions regarding the care and future of the surviving children. In Ontario, the transition of “custody”—now legally referred to as decision-making responsibility—is not an automatic process dictated solely by a will. At Pax Law Corporation, we understand the strategic and sensitive nature of these family law matters.
The primary statute governing these issues is the Children’s Law Reform Act (CLRA). Under Section 20(2) of the Act, any person with decision-making responsibility holds the rights and responsibilities of a parent and must exercise them in the best interests of the child. This principle remains the “paramount consideration” in every judicial decision.
Ontario law starts with the presumption that parents are equally entitled to decision-making responsibility. However, when death occurs, the law shifts focus from parental “rights” to the child’s stability and welfare.
In practice, if one parent passes away, the surviving parent typically maintains their role. However, the surviving parent does not automatically acquire an “absolute title” to the child. As noted by the Superior Court of Justice in Marshall v. Snow et al. (2022 ONSC 1687):
“Children are not chattels. No one inherits title to them. And their best interests are the paramount consideration in any parenting decision. Period.”
The court emphasized that a surviving parent is not granted a right of “parental succession.” In some cases, if it is in the child’s best interest, the court may grant primary care or final decision-making authority to other relatives, such as grandparents, even over the objections of the surviving parent.
You may use a will to name a person you wish to care for your child. While this is a critical planning step, its legal power is limited under Section 61 of the CLRA:
An appointment in a will is only effective for 90 days after the death.
To extend this authority, the appointee must apply to the court within that 90-day window.
The appointment is only effective if the deceased was the only person with decision-making responsibility at the time of death, or if both parents died simultaneously.
In S.M. v A.Y. (2023 ONCJ 454), the court ruled that a testamentary appointment was insufficient because it wasn’t clear the mother was the sole decision-maker. The court instead intervened directly to make an order based on the child’s best interests.
If both parents pass away without a clear arrangement, or if the court finds the named guardian unsuitable, the court will determine who should take responsibility. In Cheng v Yu (2017 ONCJ 563), the court navigated a dispute between maternal and paternal grandparents, ultimately choosing the environment that offered the child the most stability.
If no suitable caregiver is available, the Child, Youth and Family Services Act may apply. A child is considered in need of protection if a parent has died and has not made “adequate provision” for the child’s care.
Contrary to common belief, a biological connection is not an absolute right to custody in Ontario. While important, it is only one factor. In Wallace v Wallace (2023 ONSC 6927), the court noted that “Courts routinely deny that a biological parent has a prima facie right to custody.” In that case, decision-making responsibility was granted to a stepfather over a biological father because it served the child’s best interests.
A will cannot unilaterally strip a surviving parent of their rights. If the surviving parent is fit, they usually retain responsibility. However, you can use your will to express concerns and name an alternative, which the court will consider as evidence of your wishes and the child’s needs.
Without a will, there is no temporary appointee. The court will have to decide based on applications from interested parties (like relatives). This can lead to prolonged family litigation.
Under the CLRA, any person—not just a parent—can apply to the court for an order respecting decision-making responsibility or parenting time.
Relying solely on a will is rarely enough to ensure a seamless transition for your children. Because the court always prioritizes the “best interests of the child,” legal hurdles can arise even with a clear will. If you are concerned about your child’s future or are involved in a custody dispute following a death, you need a strategic legal consultation.
Pax Law Corporation provides the authoritative guidance needed to navigate the Ontario court system and protect the most vulnerable members of your family.
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