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Guardianship and Minor Children: The Overlooked Clause in Canadian Wills

Guardianship and Minor Children The Overlooked Clause in Canadian Wills

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Every parent hopes the unimaginable never happens. Yet if it does, the clarity of a well-drafted will can mean everything for minor children. In Canada, especially here in Alberta, many focus on asset distribution. But there is one clause that often gets overlooked: the guardianship clause. It is vital, and yet so often forgotten.
This article explores why that clause matters. It outlines how parents can secure a guardian for their children. And it explains what happens if the clause is missing or poorly drafted. We’ll lean into Alberta specifics, offer practical advice, and draw on reliable sources to ground recommendations.

Why guardianship matters, and why it’s often ignored

A will is often seen only as a roadmap for financial matters. Who gets what. How much. But when minor children are involved, that roadmap needs another layer: who cares for them, and how they are cared for. That’s what a guardianship clause does.

Without it, the court steps in. Children’s Services or family court may assign someone based on best interests. That might be fine, or it could put children in the care of someone parents never intended. One Alberta source explains that unless a guardian is named, a court may appoint a guardian temporarily, often until a permanent decision is made, and if no guardian is named in a will, Children’s Services may even step in initially. 

The mistake happens often because parents assume that other relatives or the surviving parent will automatically step in. But as clear law confirms, guardianship does not transfer automatically. The only way to ensure the care goes to someone you trust is to name them explicitly in your will. 

How Canadian law treats guardianship in wills

In Ontario, the Children’s Law Reform Act allows a custodial parent to name a guardian in their will. But this appointment is temporary–only valid for 90 days after the parent’s death. After that, a court decides permanently, guided in part by the will.

Alberta law follows a similar path. A testamentary guardianship clause in your will or a signed document can hand over guardianship after your passing. But courts still review it. The guardian must be over 18, must consent, and must act in the child’s best interests. 

Courts give weight to the expressed wishes of parents, though they are not binding. A well-considered clause serves as persuasive evidence if custody is ever contested. 

What often goes wrong, and what families miss

Several pitfalls are common:

  • 1. No guardian named at all

If a parent assumes a relative will step forward, they may face delays or court assignment, which may be far from ideal.

  • 2. Only one parent names a guardian, and surviving parent still has custody

If one parent had sole custody and named a guardian, but the surviving parent still has custody, the will may be overridden. Proper coordination between both parents’ wills is crucial (Mills & Mills LLP). 

  • 3. Parents name different guardians

If both parents die simultaneously and their wills name different guardians, only those named in both wills stand a chance.

  • 4. Guardian lives in another jurisdiction or country

Parents sometimes select guardians living outside Alberta, maybe even overseas. That raises practical issues: relocation stress for children, legal hurdles, and potential tax implications if a trust exists under Canadian law (Mondaq). 

  • 5. Guardianship vs. trust or property oversight
Some parents lump guardianship and financial oversight together. Courts treat them separately. It is wise to name both a custodian and a trustee for property, if needed.
  • 6. No guidance beyond naming
A will that only names a guardian without any explanation or letter of wishes leaves too much to chance. A “Letter of Wishes” can guide the guardian on values, education, religion, routines, without being legally binding.

Best practices for parents in Alberta

Here’s a checklist to make your guardianship clause as effective as possible:
  • Name a legal guardian for custody, and an alternate

Ensure they are suitable, able, and willing. Discuss it in advance. In Alberta, a guardian must agree to the role and be over age 18 (Verhaeghe Law Office). 

  • Parent wills should mirror each other

Coordinate with your spouse. If both wills name the same guardian, children stay in your intended care; the court respects that choice. If they differ, confusion or unintended outcomes may result (Mills & Mills LLP). 

  • Clarify the scope

Custody covers personal care. Guardians of property or a trustee manages the child’s assets. Both roles should be named, or aligned with someone you trust. 

  • Consider jurisdictional issues
If your guardian lives outside Alberta, state clearly in your will that children may move jurisdictions. This helps courts understand your intent.
  • Add a Letter of Wishes
Include guidance for guardians on values, education, religion, routines. Courts see this as helpful context.
  • Provide financial support
If a trust exists for your minor child, consider naming the guardian or trustee responsible for property, and perhaps offer compensation or guidance for reimbursements.
  • Review and update regularly
Guardians age, move, or may no longer suit the role. Review your will over time and update as needed.

Real-world impact: why this matters deeply

Imagine this scenario: A married couple in Edmonton, both parents of two young children. They don’t name a guardian. One of them passes unexpectedly. Children’s services steps in. The surviving parent struggles to balance grief, work, and custody issues. Costs mount. Stress deepens. 

Alternatively, they named a trusted relative as guardian but provided no Letter of Wishes. That person steps in but must marshal financial resources to support schooling. With no guidance, they may clash with siblings or struggle with decisions around faith or upbringing. 

Now imagine another example: A divorced parent with primary custody names new partner as guardian. Without coordination, the ex-spouse still has custody by default under law. The court may revert custody to that ex, regardless of the will, unless the will aligns with custody rights. Chaos ensues. 

Each of these scenarios is avoidable. Each hinges on whether you did, or didn’t, plan sufficiently. 

Bringing it home for Forum Estates clients in Edmonton and beyond

At Forum Estates, based in Edmonton, we help families avoid these pitfalls. We know your children are your priority. You want to protect them even after you’re gone. We guide you through designing wills that reflect your family’s reality, your values, and your long-term hopes. 

We focus on: 

  • Clear guardianship naming, both for care and property.
  • Alberta-specific legal traps, like guardian consent and temporary timelines.
  • Cross-jurisdiction planning, if your guardian is outside Alberta or Canada.
  • Supporting documentation, such as Letters of Wishes or guardianship letters.
  • Periodic reviews, so your plan stays current with family changes.

In summary

A guardianship clause in a Canadian will is not a formality–it is a pivotal protection for children. Courts respect clear parenting intentions, but only when deliberately expressed. Without such clarity, your children’s welfare may depend on external processes, not your values.
This is especially pertinent here in Alberta. Naming a guardian, aligning with wills of both parents, considering jurisdiction, adding a Letter of Wishes, and supporting with financial guidance transforms an estate planning exercise into a protective shield.
Don’t let that clause be the one you overlooked. Instead, make it the one you get right. Because peace of mind, for you and for them, is worth every thoughtful word.

Disclaimer: This article is for informational purposes only. Consult a qualified legal and tax professional before implementing any estate plan.