All children under the age of majority, which is 19 in Nova Scotia, require a legal guardian. This position is typically assumed by their parents. When one of the two parents die, guardianship of minor children is generally transferred automatically to the surviving parent. However, in circumstances where both parents have passed away, or the surviving parent is unfit to take on the role, guardianship will be determined depending on certain factors.
Appointing a Guardian
In Nova Scotia, guardianship of children is regulated under the Guardianship Act, 2002, c.8, s.1. According to this statute, Guardians must be over the age of 19 and mentally competent. The statute requires that appointment of a Guardian must be in writing, among other requirements, to have any sort of legal effect. Documents through which parents generally appoint a guardian are Wills, or Guardian Agreement contracts.
There is no formal process of registration or approval for guardians. Documents appointing guardians are generally respected and the selected individuals, if they are willing to take on the roll, will become the legal guardians of the minor children. The appointment will stand unless someone contests it in Court.
Anyone is able to start an application in court to contest an appointed guardian. In Nova Scotia, if an application is commenced, the court will consider all contesting parties equally and will base their decision on what is best for the children. Note that if a guardian has been appointed, the choice of the deceased is always given considerable weight. This choice is generally only overruled if the chosen guardian is unsuitable or if the other party presents a strong enough case.
No Appointed Guardian
In the situation where there is no document left behind that appoints a Guardian, the court will select a guardian from those who step forward to accept the position. If there are multiple individuals who step forward, the court will hear those petitioning for the role and determine who is best suited to accept the children. If the children are above the age of 14, their opinions and desires are also considered by the court. If no one steps forward, the children will become wards of the Children’s Aid Society, or another appropriate agency.
It is always a good idea to be prepared. At Highlander Law Group, one of our lawyers would be happy to help you draft a Will or a Guardianship Agreement. Our legal fees can be found here.
If you are thinking about making a Will or a Guardianship Agreement, or if you have any questions on this topic, we’d be happy to walk you through the options. You can call us at (902) 826-3070 to set up a meeting at our Tantallon law firm or contact us online.
By Amanda N. Toulany, Articled Clerk
The information and materials on this blog are provided for general informational purposes only and are not intended to be legal advice. Nothing contained on this blog is legal advice or constitutes a legal opinion. While it is our goal to provide information which is current, legislative changes and court decisions, among other matters, may result in some information no longer being current or accurate. You should consult a lawyer before relying on any information. The views expressed herein by individual contributing lawyers posting entries to the blog are solely those of the authors and should not necessarily be attributed to or considered representative of the firm of Highlander Law Group Lawyers.