How Do I Determine Who Will Be My Child's Guardian?

There are often challenges when someone dies without a Will, but it can be particularly problematic if the person who has died is a parent and guardian of a minor child.

In British Columbia, a guardian is generally the child’s mother and the other parent, provided the parents were living together when the child was born. If the parents never resided together, the other parent is a guardian if the other parent regularly cares for the child or if parents enter into an agreement providing that the other parent is a guardian.

Under the Family Law Act, a child’s guardian can appoint someone else to be a child’s guardian on the death of the appointing guardian. This appointment can be made in a Will or by completing a prescribed form found in the Regulation to the Family Law Act. The appointment of a guardian in case of death is important for all parents, and especially separated parents. If no appointment is made, and there is one surviving guardian who is also the child's parent, the surviving guardian generally assumes all parental responsibilities with respect to the child. If the child has more than one surviving guardian who are also the child's parent, each of the surviving guardians assumes the parental responsibilities that the deceased guardian had.

But what happens if no appointment has been made and there is no surviving guardian? As an example, a single parent dies without a Will and without having executed the prescribed form under the Regulations to the Family Law Act. Unfortunately, this leaves the surviving child without a legal guardian. Even if the child has another parent (who is not automatically a guardian or who was not made a guardian in an agreement or court order), the surviving parent does not automatically become a guardian.

In these situations, someone (for example, the surviving non-guardian parent, or a relative of the deceased parent) would need to apply to court to be appointed as a guardian. This application to court is important because someone needs to be able to make decisions for and on behalf of a child.

Under the Family Law Act, only guardians may have parental responsibilities, and that means that only guardians are authorized to, amongst other things:

• Make day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child;
• Make decisions about where and with whom the child will reside; and
• Apply for a passport on the child’s behalf.

Basically, guardians have all the responsibilities that one assumes a parent has or all the decision-making authority that a parent should have.

If a child no longer has a guardian because their only guardian has died without making arrangements, they are technically (and hopefully, temporarily) in limbo. This can be very stressful for a person who has care of an orphaned child. Aside from having to deal with the anguish associated with death and assisting a child through a tragic situation, there is also uncertainty with respect to who will care for the child or have the authority to make decisions on behalf of the child.

To avoid that uncertainty and reduce the likelihood of a court action having to be commenced to resolve guardianship, all parents should take steps to ensure that a guardian is appointed to assume the parents parenting responsibilities in the case of incapacity or death. This can be done as part of a parent’s estate planning, or at the very least, by completing Form 2 of the Regulation.