How to Be Appointed as a Minor's Guardian of Property

In Ontario, a minor cannot receive money until he or she turns eighteen.  However, there are times when children become entitled to property (such as an inheritance, insurance proceeds, or accident benefits) prior to reaching the age of majority. 

It comes as a surprise to many parents that they are not automatically entitled to take control of property to which their child is entitled.  Instead, generally speaking, the money has to be paid to the Accountant of the Superior Court of Justice (referred to as a “payment into court”) until the beneficiary has turned eighteen (an exception to this is when the amount in question is less than $10,000).     

In situations where a parent (or both parents) wishes to administer a minor’s funds, s.47(1) of the Children’s Law Reform Act (“CLRA”) provides the authority to bring a court application, on notice to the Office of the Children’s Lawyer, to be appointed as guardian of property.    Where more than one person is appointed as guardian of property, those people are jointly responsible for the care and management of the minor’s property. 

Pursuant to s. 49 of the CLRA, the court is to consider all the circumstances, including the following:

  • The ability of the applicant(s) to manage the child’s property;
  • The merits of the plan proposed by the applicant for the care and management of the child’s property; and
  • The views and preferences, where ascertainable, of the child. 

A parent is entitled to compensation for acting as guardian of property, however the amount must be authorized by the court (if the terms of compensation have not been set out in a management plan, then a parent who wishes to receive compensation should bring an application to pass accounts).

It is essential that anyone acting as a guardian of property for a minor understand that they have an obligation to be able to account for their dealings with the minor’s funds.  In this regard, careful records (with supporting documentation) should be kept of all transactions that take place.  I always recommend that prior to acting as a guardian of property, parents speak to a lawyer to ensure they understand the full extent of their obligations. 

Guardianship of Minors: Planning for Your Children's Future

A common concern that people have when planning their estates is what will happen to any minor children they have on their death.  As a result, people who do have minor children when making a will have the option of naming a guardian to take custody of their children on their death. The authority to appoint a guardian and the process that must be followed is set out in s. 61 of the Children’s Law Reform Act. 

It is possible to appoint more than one guardian or to name alternate guardians in the event the one appointed can’t act.  In situations where a couple (such as the testator’s sister and brother-in-law) are named, it is suggested that the will provide they must be together at the testator’s death and, if they are not, who should take custody (to avoid a situation where a couple who was married at the time the will was completed have divorced at the testator’s death). 

While naming a guardian is a good option, it is important for the testator to understand the limitations of such an appointment.  First, an appointment of a guardian will only be effective if, at the time the appointment takes effect, the individual who made it was the only one entitled to custody of the minor – so, if two parents are entitled to custody of a minor and one passes away, the surviving parent will be entitled to custody, not the guardian named in the deceased parent’s will. 

Second, an appointment made by will is only temporary in nature and will be effective for ninety days after the testator’s death.  Before the 90 days expired, the intended guardian must bring a court application seeking to be permanently appointed.  Ultimately, then, it will be up to the court to determine who will be awarded final custody of any minor children – and the court’s concern will be over what is in the best interests of the children, not what the will says.  In situations where appointing the guardian named in a will seems in keeping with the children’s best interests, the court will certainly give importance to the terms of the will – however, again, it is important for anyone making a will to understand that the will won’t necessarily be determinative.