A hidden crisis has emerged in the wake of the Covid-19 pandemic. According to a recent collaborative study led by the Centers for Disease Control and Prevention (“CDC”), more than 140,000 children under 18 years of age in the United States lost a primary or secondary parent from Covid-19 from April 1, 2020, to June 30, 2021. Approximately one in four Covid-19 deaths resulted in an orphaned child. Of the nearly 1 in 500 who lost a parent from Covid-19, 65% are from racialized communities. The repercussions of these findings will reverberate for generations: children who suffer the loss of a parent or caregiver are more likely to experience mental health problems, lower self-esteem, increased risk of substance abuse, suicide, violence, sexual abuse and exploitation, and other adverse mental health conditions.
While the death of a parent may be unexpected, it is a sobering reminder for parents to create an estate plan that provides for the successive care of their minor children. Parents have a critical role in stemming the tide of the adverse consequences that result from the loss of a parent or primary caregiver- and it starts with making a Will.
Findings from the CDC's report show that children who have lost parents and caregivers to Covid-19 benefit from maintaining ties with their family and nurturing relationships that address childhood adversity, including programs that strengthen economic and educational supports, provide quality childcare, and improve parenting skills. By appointing competent, appropriate guardians in Will, parents ensure that their children receive continuity of family ties, appropriate economic supports, suitable childcare, and the testator's blessing that the guardian has some demonstrable parenting ability.
Issues surrounding the care of minor children following the death of one or both parents are divided into two categories: (1) custodial guardianship (decision-making) and (2) guardianship of the child’s property.
Guardianship of Children (Custody)
In Ontario, the appointment of guardians is not a guarantee that whoever the testator appoints will become a child's permanent guardian- but it is crucial if they have someone specific in mind, especially if their top choice is not a family member. While testators have the power to appoint guardians in a Will, this appointment is only temporary. The person making the guardianship appointment must be the only person with decision-making responsibility for the child immediately before death. If another parent with custodial rights is alive when the testator dies, they are generally entitled to custody of the child after the death of the first parent or caregiver. The person seeking to act as a child's guardian must bring their claim for permanent guardianship within 90 days of death. Judges retain ultimate discretion to decide who will be the permanent guardian, but a deceased parent's wishes carry significant weight. Courts rarely depart from a testator's wishes but may appoint someone else if the proposed guardian no longer wishes to act or if the court finds that the proposed guardian is unsuitable.
Such circumstances demonstrate why it is crucial to appoint guardians in your Will- to ensure that the court knows and (likely) facilitates those wishes. Parents completing their Wills should thoroughly consider their options and consult with proposed guardians: guardians must consent to their appointment.
Guardianship of a Child’s Assets (Property)
Guardianship of property is separate from custodial guardianship. Pursuant to section 47(1) of the Children’s Law Reform Act, a court may appoint a parent or any other person as a guardian for a child's property. Parents have a presumptive right to act as guardian for property. Guardians for property make important decisions about the care and management of a child’s property and the investment of funds that the child will receive later in life. Guardians for property must keep detailed and up-to-date accounts of all transactions they make on behalf of the child.
Parents may select different guardians for property and decision-making. Each role has unique requirements and legal obligations. While Guardians for property are entitled to compensation at a rate prescribed in Ontario Regulation 159/00, similar to an estate trustee, custodial guardians are not entitled to such compensation. Financial provisions should be made for guardians in a Will to account for the expense that the role entails. Acting as a guardian may add additional costs, require a larger vehicle and/or a larger home. Parents appointing guardians should strongly consider adding provisions in their Will to ensure that custodial guardians receive the funds or resources to cover these additional expenses or enough flexibility for the estate trustee to provide for these expenses at their discretion.
The Covid-19 pandemic has left hundreds of thousands of children orphaned globally. Many of these deceased parents likely did not expect their lives to be cut short. They may not have had a Will that appointed custodial guardians and guardians for property in the event of their untimely death. Courts will be required to make summary decisions without knowing their wishes, depriving parents of the ability to select guardians that they know and trust. The results of the CDC's report is a stark reminder for parents to update their Wills with appropriately designated guardians for their children. To learn more about guardianship appointments for minor children, book a consultation with Regan Law Firm today.
December 12, 2021
 S Hillis, et al. Covid-19-Associated Orphanhood and Caregiver Death in the United States. Pediatrics. DOI: 10.1542/peds.2021-053760, online: Centers for Disease Control and Prevention: <https://www.cdc.gov/media/releases/2021/p1007-covid-19-orphaned-children.html>.