After a marital separation, some parents will, for better or worse, go to unimaginable lengths to prevent their ex-partners from having
custody or access to the children of the marriage.
Can this fight continue after death?
Can a separated parent use a last will to prevent the child's other parent from obtaining custody after death of a custodial parent?
In Ontario, a sole custodial parent can name anyone as the temporary custodian of a child in a Last Will and Testament, under section 61 of the Children's Law Reform Act. The appointment is temporary for 90 days, after that, the parent with temporary custody must apply for court ordered permanent custody. The appointment is also only effective when the testator is the only person who had custody of the child at the time when he or she died, or if both people with custody died at the same time.
Of course, under Ontario law, any other person who wishes custody of the child, irrespective of the directions in a will, can make his or her own Application for custody of the child.
In my practice, I have been the asked at least twice "What should I do if I do not, in any circumstances, want my ex to get custody of our child?"
The Newfoundland and Labrador case of NW v KB (Unified Family Court, 1995) offers some interesting guidance.
MB was separated from KB. They had a daughter. MB was dying. An Ontario judge had granted her custody of the daughter and liberal access to KB. MB and daughter were permitted to move back to Labrador where their family lived, for the final stages of the cancer treatment. MB drew up plans for the care of her daughter in a Last Will.
MB wanted her daughter to live permanently with her sister NW in St. John's. Her Last Will aired out a litany of complaints about KB, and directed custody to the aunt, NW.:
"The most important things I want for (Sylvia) are caring, loving, affection, stability and strong family values. I know that her father K.B. cannot provide her with this. [...] Although K.B. is (Sylvia's) biological parent, he cannot provide her with the family values, stability, affection and loving that my sister N.W. and her family can. K.B. does not express feelings of love and affection. He has been married on three occasions and is only thirty-three years old. All marriages ended in divorce for no valid reasons. I do not believe that K.B. can provide (Sylvia) with a stable environment that I want for her. K.B. and his family have no sense of family values. His brothers and sisters have children from other marriages and/or relationships. Many do not pay child support and many have been divorced. [The laundry list of complaints goes on. You can read the entire provision here at paragraph 16.] These are not the family values that I wish for my daughter (Sylvia)"NW brought an application to be given full custody of her niece, pursuant to the Last Will. Unlike in Ontario, under Newfoundland's Children's Law Act, a provision granting custody to a non-parent after death was null and void as long as there was a living parent with a right to custody or access (as was the case with KB).
It will come as no surprise that the Justice Halley determined that the paramount consideration in determining who would have custody of child was the child's best interests. The Court was not prepared to sever the Dad's relationship with his daughter, but it took the claim for custody in the Aunt's application seriously enough to investigate what was really in the best interests of the infant daughter of KB and the late MB.
The Court found KB and NW to be two equally devoted and capable parents, either of whom, could and would have been suitable to have full custody.
The Court granted custody to the father but in apparent recognition of the merit of the Application, gave the Aunt very generous access to be exercised for 60 days or more during the year at her own expense around holiday and vacation times.
NB v KW sets out a fairly common fact scenario, and illustrates a few important general principles to keep in mind when trying to make a testamentary appointment of a guardian for a child:
1. The Child's best interests are still the Court's primary concern
2. The Court will be very reluctant to strip custody from a parent or person, who otherwise be entitled, unless it's truly in the Child's best interests.
3. The person you name in your Will as guardian of your child may influence the Court's decision on who is granted custody or access, but it will not necessarily be followed or be binding on the court.
4. If you use your Last Will as a platform to attack a spouse or other family member's parenting ability, don't assume that the Court will accept your comments uncritically.Most importantly, think about what you want to be remembered for.
Is it that you used your Last Will to sow conflict, rather than reconciliation, after you were gone?