As a parent, imagining a world where you are not there for your children is heartbreaking. But making that plan now—while you can—is one of the most selfless and protective acts you can take.

Assigning a legal guardian for minor children ensures that if something unexpected happens to both parents, your children are cared for by someone you trust. In Ontario, this process is straightforward—but not without nuance, especially if you are considering naming someone who lives outside the province or even outside Canada.

This guide walks you through how to assign a guardian, what to consider when choosing one, and what happens in more complex situations—like appointing a non-resident guardian.

What Is a Legal Guardian in Ontario?

A legal guardian is someone who takes over decision-making responsibility for your minor children if both parents pass away or become unable to care for them. This person is responsible for your child’s well-being, including living arrangements, education, and health care.

Under Section 61(1) of Ontario’s Children’s Law Reform Act, a parent may appoint a guardian by testamentary instrument, such as a Will.

How Do You Legally Appoint a Guardian for Minor Children?

To appoint a guardian, you must include the appointment in your Will or another valid testamentary instrument.

According to Section 61(7):

“An appointment under this section expires ninety days after the appointment becomes effective or, where the appointee applies under section 47 within the ninety-day period, when the application is disposed of.”

What this means:

• Your chosen guardian is automatically appointed for 90 days after your death.
• To continue beyond 90 days, they must apply to the Ontario court under Section 47
• The court has the authority to confirm, modify, or deny the appointment based on the child’s best interests (Section 24)

What Does the Court Consider?

Even if a guardian is named in your Will, the court has the final say. As per Section 24(2–3), the court must consider the best interests of the child, including:

• The child’s emotional and physical needs
• The child’s relationships with the applicant and others
• The child’s age, development, and preferences (if applicable)
• The applicant’s ability and willingness to care for the child
• Any history of violence or abuse
• The length of time the child has lived in a stable environment

What Should You Look for in a Guardian?

Choosing the right person means thinking beyond love—it’s about long-term suitability. Ask yourself:

• Do they share your parenting values and priorities?
• Do they have a strong, positive relationship with your children?
• Are they emotionally and financially stable?
• Are they willing—and able—to take on this responsibility?

Appointing a Guardian Inside vs. Outside Ontario or Canada

The Act allows any person to apply to be a child’s guardian—whether they live in Ontario or outside Canada. However, the court’s assessment under Section 24 introduces practical differences that affect the outcome.

Comparison: Guardian Living in Ontario vs. Outside Canada

Factor	Applicant Residing in Ontario	Applicant Residing Outside Canada
Eligibility to Apply	Allowed under Section 47	Allowed under Section 47
Court Approval Required?	Yes	Yes
90-Day Rule	Must apply to court within 90 days of death	Must apply to court within 90 days of death
Child’s Immediate Care	Can likely assume care immediately	May face delays due to travel, visas, or residency requirements
Court Consideration	Readily available to provide “stable home environment”	Must prove ability to provide care and continuity from abroad
Outcome	Assessed solely on best interests of the child	Assessed solely on best interests of the child

Note: The court does not favor or exclude any applicant based on residency, but applicants who can provide immediate care, emotional stability, and continuity of environment may satisfy more factors under the best interests test.

What Happens If You Don’t Name a Guardian?

If one parent dies, the surviving parent continues as the legal guardian.. But in exterme situation if both the parents die without naming a guardian:

• Any person can apply to the court for guardianship under Section 47(1)
• The court will evaluate all applicants under Section 24, based on the child’s best interests
• The Will (if it names a guardian) helps guide the court but is not binding unless followed up with a court application
• If no one applies, the court can act on its own to ensure the child is protected

What to Share with Your Appointed Guardian?

Once you have named someone as a guardian in your Will, it’s important to prepare them for the responsibility. Open and early communication ensures they are willing, ready, and equipped to care for your child if needed.

1. Key Information to Share:

• Your intentions: Confirm their willingness to take on the role if the situation arises
• Legal expectations: Let them know they must apply to the Ontario court within 90 days of your passing
• Documentation: Provide access/inform how they can access key documents, such as:
  • Birth certificates
  • Passports
  • Health records
  • Copy of your Will

2. Optional: Prepare a Letter of Wishes

Although not legally binding, a Letter of Wishes can help guide your guardian. You can include:

• Care preferences and family values
• Specific instructions about education, religion, and extracurricular activities
• Reasons for choosing a guardian outside your jurisdiction
• Any objections to other potential guardians

Appointing a guardian in your Will is one of the most important steps you can take to protect your children. But in Ontario, naming someone is only the beginning—your chosen guardian must apply to the court within 90 days, and the final decision will be based on what’s truly in your child’s best interests.

That’s why it’s just as important to regularly review your choices, update your Will as life changes, and clearly communicate your wishes to those you’ve entrusted with this responsibility.

Protect your children’s future today—start your Will with Willezy and ensure they are always cared for by those you trust most.