Wills, Estates, Trusts Law
 
Guardianship of Property of Minor Child
 

A child who is under the age of 18 years is called a minor.  In Ontario, a parent is automatically the "guardian of the person" of his or her minor child. However, a parent is not automatically the "guardian of property" of his or her minor child's property. A parent can only receive such authority on behalf of a child by statute, court order or other document, such as a will.

Money may be payable to a child

  • under a court order for damages;

  • in an estate (with or without a will);

  • under a life insurance policy where the child has been named as the beneficiary;

  • under an RRSP or other pension plan;

  • under some other death or accident benefit.

 

Where an adult person does not have the legal authority to receive the monies for the minor, the monies must be paid into court by paying the monies to the Accountant of the Superior Court of Justice. In most cases, it’s less than desirable as the surviving parent might want to invest the money on his/her minor child’s behalf.

 

Although a parent or any other person may bring a guardianship of property application. Under the Children’s Law Reform Act, the Superior Court of Justice and the Ontario Court of Justice have jurisdiction to make guardianship orders for minors' property. Parents are preferred over non-parents. Where the amount of money is large, the court may require a trust company or other independent professional to act as guardian. The Office of the Children's Lawyer is required to be served with a guardianship application to represent the interests of the minor.

The guardian of property is responsible for the care and management of the minor's property:

  • The guardian is required to keep careful records (called "accounts") of all dealings with the child's money, and if a large amount of money is involved the guardian may be required to regularly pass the accounts before the court at fixed intervals;

  • Make proper trustee investments and invest the child's money as required by the management plan approved by the court (guardians must comply with the Trustee Act requirements for the investment of trust funds.);

  • Transfer all the property to the child at age 18

  • In determine whether to grant the guardianship of property of minor applicant, the court considers all the circumstances, including (1) the ability of the applicant to manage the property, (2) the merits of the proposed management plan for the investment of the child's funds, and (3) the views and preferences of the child where they can be reasonably ascertained.

The court may dispense the requirement for the guardianship application to post a security bond where the applicant is a parent of the child. Usually, the court will not dispense with a bond where the applicant does not have assets in excess of the amount of the child's funds.

However, please note that even if the guardianship of property of minor child is granted. The guardian is only holding and investing the money in trust for the benefit of the minor until he or she turns 18. Thus, the guardian cannot spend the money to pay lawyer fee, nor to be used to pay for financial support of the child or to use the money for any other purpose unless explicitly authorized to do so in the guardianship order.

If the main purpose of the guardianship of property application is to manage money payable to a child in an estate of a deceased spouse, then a separate estate trustee application may need to be filed to the estate court at the same time. The main reason is that you do need the estate trustee to give you the list of assets available in the estate before you can possibly come up with a management plan for the guardianship application.

 

Please note that the guardianship of property of minor child appointment by court will last until the child turns 18, and the guardian is allowed to manage all money payable to a child without needing to file a new application, even if further proceeds arrive after the guardianship application has been granted. In a sense the guardianship of property of minor children is a form of court appointed power of attorney.

 

A guardianship of property of minor child application is technical and can be tricky at times, you are strongly advised against filing a guardianship application on your own without the assistant of a lawyer.

HTW Law can help. Call us now at 647-849-6582 or send us a message if you have some legal questions / inquiries or want to schedule an appointment with HTW Law.

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