1. In a situation in which both parties have joint custody and joint guardianship of the children:
   1. Pursuant to s. 29(1) of the Family Relations Act, if a joint guardian dies, the surviving guardian will continue as sole guardian of the children.
   2. In a situation  in which one party is the sole guardian of the children and the other party has no guardianship or custodial rights:
      1. Pursuant to s. 29(2) of the Family Relations Act, if the sole guardian dies, a surviving parent of the children who is not a guardian at the time of the deceased’s death does not become a guardian unless the parent has been appointed under section 50 of the Infants Act or is, by order, appointed under section 30 of the Family Relations Act.

That section of the Infants Act states:

1. i.      That a parent may appoint, by deed if (the parent is) under age, otherwise by deed or will, a guardian to act in his or her place on his or her death as guardian of an infant child under 19 years; and,
2. ii.      If either parent dies, the surviving parent may by will transfer part or all of his or her rights and duties to custody, control and management of their infant child’s property, but not the infant’s services and earnings, to a suitable person.
3. Pursuant to s.  30 (1) of the Family Relations Act, a court may, on application:
   1. i.      appoint a guardian, or
   2. ii.      remove from office a guardian appointed or acting by virtue of this Part or a deed or testamentary appointment.
4. Pursuant to s.  30 (2) of the Family Relations Act, if a child is over 12 years of age, a court must not make or give effect under subsection (1) to an appointment unless:
   1. i.      the child consents in writing to the appointment, or
   2. ii.      if the child withholds consent to the appointment, the court is satisfied that the appointment is necessary in the best interests of the child.
5. Pursuant to s.  30 (3) of the Family Relations Act,  a person other than the father or mother of a child must not, under subsection (1) (a), be appointed guardian unless the court is satisfied that each parent of the child consents in writing to the appointment or, if a necessary consent has not been given, that:
   1. i.      the parent who could give or withhold consent is not reasonably available, or
   2. ii.      the consent is being unreasonably withheld.
6. Pursuant to s.  30 (4) of the Family Relations Act, an order must not be made under subsection (1) unless the present and prospective guardians have been given notice and an opportunity to be heard in the proceeding.
7. Finally, s 30 (5) of the Family Relations Act stipulates that if satisfied that circumstances warrant, the court may grant an exemption from subsection (4) respecting a present guardian.

Planning for your children’s future is a complex task and the intersection of family law and estate law makes it doubly so.

The best way to ensure that your wishes with respect to any issue being carried out after your death and that your children’s best interests are protected to is to obtain advice from independent legal counsel who can direct you through this legislative maze.  Here at Henderson Heinrichs our lawyers are capable of advising you with respect to such a complicated issue.

If you are getting Married:

Wills in BC are governed by the Wills Act.  Under section 15 of the Wills Act, your will is revoked if you get married, unless your will specifically contemplates your upcoming marriage.  If your will is revoked and you pass away, it will be as though you died with no will at all, and your property will be distributed according to the Estate Administration Act.  So if you get married, make sure you revisit your will if you want your final wishes to be respected.

If you are getting Divorced:

Unlike getting married, getting divorced does not cancel your will.  However, it can change your will.  Any parts of your will that name your former spouse as executor or as a beneficiary of your estate are cancelled.  The division of your estate can be complex and unpredictable if these portions of your will are cancelled.  If you are getting divorced and you named your former spouse in your will, you should seriously consider getting a new will.

If you are separated and planning on getting Divorced.

The process of getting divorced can often take some time.  Even if you are separated from your spouse and have started divorce proceedings, your will is still valid.  If you are separated but not divorced and do not have a will, a substantial portion of your estate will go to your spouse if you pass away before getting divorced.  Under both of these circumstances, you should consider immediately getting a new will which explicitly sets out that you are making the will with your impending divorce in mind, and which reflects your wishes.