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Can a child decide which parent to live with?


“I’ve never walked out from a court session with him disappointed…

Barry really saved my life and my son in that situation”

Can a child decide which parent to live with?

But my child wants to live with me! When can a child decide which parent to live with?

A child is entitled to have their opinion be considered by any judge who is considering an application regarding custody or access according to subsection 64(1) of the Children’s Law Reform Act (CLRA). This right to be heard is not absolute. When it comes judicial decisions regarding custody and access, the ‘best interests of the child’ is the determining factor according to subsection 24(1) of the CLRA.

Identifying the best interests of a child is not simple in many situations and often involves the balancing of many factors. Paragraph 24(2)(b) of the CLRA clarifies that while a court is obligated to consider all the child’s needs and circumstances, that the child’s views and preferences are only one factor that must be considered and only if such views and preferences “can reasonably be ascertained”. Depending on the situation, a child’s opinion can be very impactful on a judge’s decision which parent they want to live with.

What Determines the Weight of a Child’s Opinion?

A number of factors impact on whether a child’s views will be likely to seriously impact a judicial decision. A few key factors include the child’s ability to express their own views, the child’s age and level of maturity, as well as the child’s level of vulnerability and the risk of harm to the child. These factors are closely intertwined, and age is often the key factor in a child deciding which parent to live with.

The older and more mature a child is, the more a judge will tend to respect their desires regarding who should have custody of them. A child’s opinion will be particularly important if the child is approaching the age of majority. The opinion of a child who is 16 years old or older will generally be acted upon unless there is a particularly good case specific reason for a judge to make an order in opposition to the child’s preference.

Conversely, the views of younger children will be given relatively little weight. Courts will often forego seriously seeking out very young children’s intentions and will tend to prioritize protecting them from being caught in the crossfire of a legal conflict between their caregivers. For children, direct involvement in a legal battle between their parents can be very harmful or even traumatic, and can have long term repercussions on the child and their familial relationships.

What Not to Do as a Parent:

It is often tempting for parents to involve their children in legal conflicts between parents and caregivers. Nonetheless, the only thing a parent or caregiver is likely to accomplish by pressuring a child or involving them in a conflict in a way that poses any risk to their wellbeing, is weakening that parent’s position in court. This is particularly true regarding young and immature children, or children who are vulnerable for any reason.

The common law regards children as being particularly vulnerable when they are the subject of an application for custody and/or access. Therefore, caregivers should always be very cautious about seeking out or trying to make use of their child’s views to get an advantage in a custody battle.

It is important for parents to keep in mind that children want to please their parents and are easily impressionable. It is common for children to tell both parents that they want to live only with them, this is doubly true when a child feels pressure to make such a statement. Parents should focus on being good parents and resolving the legal issues through negotiation and the court process, rather than by involving their children.

How can children’s views and interests be ascertained while minimizing risk to the child?

Several tools have been developed to empower children who are not quite old or mature enough to children express their views on their own. Judges and sometimes the parties can select from several options help determine and evidence a child’s views while minimizing the potential risks of involving them in the process.

A judge may ask the child to speak with the judge in their office. This is the least formal and costly method, but judges are not trained for this purpose and such a conversation can be intimidating or uncomfortable to the child while yielding inconsistent results.

The Judge may also request that the Office of the Children’s Lawyer prepare a custody and access assessment. These assessments are performed by experts and can focus not only on the child but also on the fitness of the potential custodians as caregivers. They conclude with a formal opinion or recommendation to the court. If both parties agree to a private assessment and have the financial means, they can opt into having one performed without an order from a judge.

Finally, a judge may order a voice of the child report if the child is above the age of 7.

This option is the most targeted approach to specifically unveiling the child’s opinion and it further empowers and protects the child by giving the child control over what goes into the report and what is left out. It makes no final recommendation and is focused on bringing the child’s preferences to light.

Nussbaum Law is a Toronto based law firm that exclusively practices family and divorce law. 

Did You Know

Most abusers’ behaviour stems from feelings of privilege and entitlement and learned attitudes.

These can be extremely challenging to change. They must be deeply committed to making lasting changes to their behaviour. 

Published On:October 13, 2020