Can Your Last Will and Testament Prevent Your Ex From Getting Child Custody After Your Death?

BY PAUL ADAM, ASSOCIATE LAWYER

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?

- Paul B. Adam, Toronto

Visit our Toronto Law Office website: www.wiselaw.net

Paternity Testing in Ontario: Perhaps Damned If You Do, But Certainly Damned If You Don’t

Paternity testing, in most cases, is requested in applications in which child support is sought from a putative father, necessitating a declaration of parentage under sections 4 or 5 of Ontario's Children's Law Reform Act.  Biological parentage, however, is but one of the factors that create an obligation to support a child in light of policies that have long recognized that support is the right of the child, not the parent.   

The laws governing the right of the child to receive financial support contemplate a host of scenarios that preserve and safeguard this right, with the best interests of the child trumping any other competing consideration.  For example, where a male may not be the biological father of the child, and this is later proven by paternity testing, he may still be responsible for providing child support if, by his conduct, he has demonstrably stepped into the stead of a parent. 

The wording of Section 31 of the Family Law Act, R.S.O. 1990, c. F-3, as amended, expressly imposes this legal obligation to support children who are not blood relations:  A parent has an obligation to provide support for his or her child. The child support obligation extends to a biological child, an adopted child, or a child to whom a person has demonstrated a "settled intention" to treat as a member of his family.  

Therefore, if a male has been providing financial support to a child who he mistakenly believes is his, for any number of reasons, and can be shown to have met the test of demonstrating a “settled intention” he will be liable to pay support.  His belief that he is actual biological father is often based on the same set of circumstances which create a presumption of paternity in law.    

Section 8 of the Children's Law Reform Act set out factors that establish a presumption of paternity. 

8.  (1)  Unless the contrary is proven on a balance of probabilities, there is a presumption that a male person is, and he shall be recognized in law to be, the father of a child in any one of the following circumstances:

1. The person is married to the mother of the child at the time of the birth of the child.

2. The person was married to the mother of the child by a marriage that was terminated by death or judgment of nullity within 300 days before the birth of the child or by divorce where the decree nisi was granted within 300 days before the birth of the child.

3. The person marries the mother of the child after the birth of the child and acknowledges that he is the natural father.

4. The person was cohabiting with the mother of the child in a relationship of some permanence at the time of the birth of the child or the child is born within 300 days after they ceased to cohabit.

5. The person has certified the child’s birth, as the child’s father, under the Vital Statistics Act or a similar Act in another jurisdiction in Canada.

6. The person has been found or recognized in his lifetime by a court of competent jurisdiction in Canada to be the father of the child. R.S.O. 1990, c. C.12, s. 8 (1).

However, even if one of the circumstances set out in section 8 of the Children’s Law Reform Act can be shown to exist, it is just one factor for the court to turn its mind to.  The Court will look at the totality of evidence in exercising its discretion to recognize paternity as well as its accompanying legal implications.  Therefore, any factor establishing a presumption of paternity is rebuttable in the light of all the evidence.   

If a putative father is contesting paternity and the applicant seeking child support wishes to remove any doubt about parentage, the wisest course of action may be to apply for leave to obtain a paternity test.

Section 10(1) Children's Law Reform Act, R.S.O. 1990, c. 12, as amended, provides as follows:

• 10.(1) On the application of a party in a civil proceeding in which court is called on to determine a child's parentage, the court may give the party leave to obtain blood tests or DNA tests of the persons who are named in the order granting leave and to submit the results in evidence. 2006, c. 19, Sched. B, s. 4

Obtaining a paternity test may not only be a wise course of action for a party seeking contribution for her child, but it can also provide peace of mind to the putative father before he commences any payments and shows any conduct establishing a loco parentis role.  Since the court can presume that a putative father is the biological father if he refuses to take a paternity test, and the evidence he adduces is insufficient to rebut the presumption, the Children’s Law Reform Act effectively removes any incentive to refuse testing by reserving the right to make an adverse inference in any event. Thus, a party contesting paternity should undergo testing to provide the clearest proof that would rebut the presumption established by any of the factors listed in s. 8 of the Children's Law Reform Act. The case of R. v. S. [1988] O.J. No. 2788 is an example of what a wise investment a paternity test would have been to the Applicant, Mr. R. 

In 1982, a court order was made that compelled Mr. R. to provide support to a child born out of wedlock to Miss S.  The mother, Miss S., assigned the payments to the Ministry of Community and Social Services.  Four years after the order was originally issued, Mr. R. obtained leave to have Miss S., the child, and himself, submit to blood tests in order to ascertain parentage.  As a result of these tests, it was conclusively determined that Mr. R. could not be the father of the child, and, consequently, an uncontested declaration of non-paternity was issued in the Supreme Court of Ontario.

Mr. R. filed two motions with the court. The first was to rescind the  original support order, while the second motion was for an order to recover the monies Mr. R. paid pursuant to the 1982 order. Mr. R. sought reimbursement from COMSOC of the sum of $2,080, a figure which was not disputed.

The court granted an order rescinding the original order for support, but held that there were no legal grounds for recovery of the monies already paid out.  It was clear that there was never a proper factual basis for the support order and therefore a credible basis for retroactively discharging the original support order made.  The judge nonetheless held he had no jurisdiction to make an order directing the repayment of support paid pursuant to the original order.  “By discharging the order today, the legal embarrassment is lifted, but if I cannot order the return of the support paid, Mr. R. will find little solace in the situation.”

“Discharging an order retroactively does not include an inherent statutory power to correct inequities which may arise when the order is discharged. The Family Law Act does not confer upon me a power to order COMSOC to repay to Mr. R. the sum of $2,080 which he paid as support for a child whom we now know not to be his. I therefore deny Mr. R.'s second motion.” Moreover, as a judge of the Provincial Court (Family Division), he concluded that he lacked the jurisdiction grant equitable relief, a power then reserved to the Supreme Court, the former District Court and the Unified Family Court pursuant to Section 109(3) of the Ontario Courts of Justice Act.

Therefore, while the Court may certainly sympathize with parties who have paid support on mistaken grounds, often for lengthy periods of time, it will not necessarily be able to order repayment of support.  Early paternity testing can eliminate this risk, and provide greater certainty to parents, and ultimately the child, from the outset.

- Ana Kraljevic, Toronto

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