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Legal Issues for Minors and Adult "Children" with Disabilities

Guardianship of Property of Minor Children: Part One of a Five-Part Series

Most parents who I know want what is best for their children and would go to the ends of the earth to protect them and ensure their happiness. Of course, not all parents agree with each other, or with their children, about how to define what is “best”, what is “happiness”, and when “protection” is warranted. 

In addition to that complexity, unfortunately, not all parents are actually motivated by wanting what is best for their children or wanting their children to be happy, no matter how one defines those two concepts; and sadly, sometimes it is the parents from whom a child requires protection.

Determining what is best for a child, ensuring their happiness, and protecting them when warranted can become a quagmire of issues when the child has a disability and even more complex when that “child” becomes an adult.This blog series is written for people with disabilities, parents/family members of disabled children, family law lawyers, estate and capacity lawyers, and people acting as substitute decision makers under powers of attorney or guardianship judgments, to highlight some of the many issues that should be considered when the property and personal rights of a minor or adult disabled child are involved.

Part One – Guardianship of Property of Minor Children *

Parents are often surprised to learn that they do not have automatic decision-making authority over their own minor child’s property over a certain threshold value without the authority of a court order. Effective February 16, 2021, that threshold value was increased from $10,000 to $35,000.

At law, a minor is considered to be incapable of making their own financial decisions by nature of their age. As a result, when a minor is entitled to receive more than $35,000, the minor requires a duly authorized third party to step in to manage those funds on the minor’s behalf. This is so that the minor can be protected from exploitation. If a minor does not have a guardian of property, the money he or she is entitled to receive will be paid into court to the Accountant of the Superior Court of Justice (“ASCJ”), who will hold the funds until either (1) the minor reaches the age of majority; or (2) a guardian of property is appointed by the court and the court orders that the funds shall be paid out to that guardian. 

In Ontario, guardianship of minors is dealt with under the Children’s Law Reform Act (“CLRA”). A guardian of property for a minor under the CLRA is a court-appointed individual (or professional entity like a trust company) who steps into the shoes of the minor to carry out financial transactions on that minor’s behalf. A parent or any other person may be appointed as the guardian of a minor’s property upon application to the court and with notice to the Office of the Children’s Lawyer (“OCL”), which is the government of Ontario body that protects the legal rights of all minors in the province. 

As stated above, a parent is not automatically the guardian of property of their minor child. A parent can only receive such authority on behalf of a child by statute, court order or other document, such as a will or life insurance policy. But even where a parent is appointed as their minor child’s guardian by the court, the minor’s money cannot be used for the general financial support of the minor – parents have a legal obligation to support their minor children. The minor’s money can only be used for the minor’s expenses that go beyond regular support and in accordance with the court approved management plan that must be filed and approved as part of the guardianship application.

For more information about the general process and duties related to a minor’s guardianship of property under the CLRA, please see the Goddard Gamage LLP information sheet: The Duties and Powers of a Guardian of Property of Minors Under the Children’s Law Reform Act.

When the child under guardianship reaches the age of majority, the guardian ceases to have any financial decision-making authority pursuant to the CLRA guardianship order, regardless of the abilities or disabilities of the child at the age of majority. After reaching the age of majority, the child’s substitute decision making issues fall under the jurisdiction of the Substitute Decisions Act, 1992, (“SDA”).

Adult “children” are afforded legal rights that minor children are not. Yet these rights can get overlooked or even undermined in the context of other complex legal situations, such as in the case of the child’s parents’ relationship breaking down or in cases where the minor has significant funds from a personal injury settlement. In subsequent blogs, I will discuss the legal issues that arise for children with disabilities as they near the age of majority, and the complex legal issues for those individuals after they become adults.

* Part One of this series was originally posted February 19, 2021. I have re-posted it now to kick start the complete series which will be published in the weeks to come. Since February, 2021, amendments have been made to the Ontario Children’s Law Reform Act (CLRA) and the federal Divorce Act (DA). These amendments do not impact the main substance of what I've dealt with here in Part One, however, an important amendment should be noted in general before embarking on the rest of this series.

The term “custody and access” of minor children, in the context of a relationship breakdown of the child’s parents, is no longer used. Both the CLRA and the DA now use the term “decision-making responsibility”. I will expand upon what those changes mean in Part Two of the series, which will deal with the legal rights of adult children with disabilities.