When can children decide which parent to live with?
By Jordan McKie
As a family law lawyer, I am frequently asked this question. The short answer is that children can make their own decisions about where they will reside once they reach the age of majority, which is 18 in Canada. But the long answer - the answer which matters when parents are engaged in a dispute over custody and access - is that a child's views and preferences generally become increasingly determinative as the child ages.
The views and preferences of children matter in a custody and access proceeding. Both Ontario law and Canada's international obligations under the United Nations Convention on the Rights of the Child require courts to consider a child's views and preferences when deciding matters which affect them. However, with younger children, the matter becomes more complicated, for a number of reasons.
First, children often have trouble formulating independent views and preferences. Younger children, in particular, are heavily influenced by their parents. Parents who are embroiled in litigation may have views of the other parent which are shaped by their own experiences with that person and which can affect a child's ability to form their own independent views.
Second, children are growing. They change, often - it can seem - from one day to the next. Judges are therefore very mindful of the fact that a child may say that she "hates" her mother after a party has been denied or that she "loves" her father after receiving a new phone. Not only are rewards and punishments a poor way to judge the quality of a parent, but such behaviour shows how fickle children can be and how difficult their true views are to ascertain.
Thirdly, a child may have a preference which is not strong enough to form a basis for a custodial decision. A child may "prefer" his mother to his father, but only because he has been asked to choose between the two of them. He may in fact love his father very much and would hate to lose time with him.
The reality is that children want to please their parents, and in their efforts to make a parent “happy”, they may relay a preference that is not sincere and/or not what would be in their interests.
From the above, it is clear that the views and preferences of a child which are strong, independent and consistent will carry much more weight than those that are influenced by a parent, fleeting and inconsistent. Because children tend to gain strength, consistency and independence as they age, the views and preferences of older children are naturally given greater consideration by the courts than those of younger children. However, because no two children develop at the same rate, there is no specific age at which a child "gets to decide".
In practice, by the time a child reaches 16 or 17 years old, courts take the preferences of children very seriously. Only in rare cases would the clear preferences of a child this age be overridden by a judge. Judges often note that, regardless of what a court order says, older children will often “let their feet do the talking”.
HOW CAN I MAKE SURE THAT THE JUDGE KNOWS MY CHILD’S VIEWS AND PREFERENCES
A child’s views and preferences may be submitted to the court in a variety of ways.
Although children can and – on occasion – do testify at family law trials, it is generally considered undesirable to subject children to the rigours of a courtroom.
When children do not testify about their views and preferences, however, their words are necessarily put into evidence through other parties who have spoken with them. This is hearsay evidence, which the courts have always been leery to accept. However, because of the necessity of learning a child’s views and preferences, where they can be determined, a number of ways to admit this evidence have developed.
Office of the Children’s Lawyer
The Office of the Children's Lawyer (“OCL”) represents children under the age of 18 in some court cases involving custody and access. Although the court cannot require OCL to represent a child, parties will often ask the Court for an order that the OCL consider representing a child in a custody and access application.
The OCL employs both lawyers and clinicians (social workers). Clinicians prepare reports for the court and help lawyers who are representing children. The OCL will often interview parents, children, and other third parties relevant to a child’s life in order to make recommendations to the court on the custody and access. The OCL will also frequently advise the Court as to what the children want to see happen in their lives with respect to their residential schedule and other parenting issues.
Voice of the Child Report
A Voice of the Child report is simply a report by a clinician regarding what a child is saying after one or more interviews with the child.
Unlike a report by the OCL, a Voice of the Child report does not typically contain the clinician’s opinion. Instead, the report simply conveys the views of the child to the court, and is not an assessment or opinion of those views.
Because Voice of the Child reports are designed to convey what the child wishes to say – no more and no less – the child usually has a say in what is and is not included in the final report.
A judge may interview a child who is the subject-matter of a custody and access dispute. These judicial interviews may be ordered to happen following the request of one of the parties. This is more likely to happen where it is clear that the child’s views and preferences need to be heard, but have not been brought into evidence by an OCL or Voice of the Child report.
HOW CAN WE HELP?
These are sensitive issues that must be treated appropriately by legal and other family professionals.
There is no one-size fits all formula for determining how much weight a court will give to a child’s views and preferences. Similarly, there is no single, correct way to put those views and preferences into evidence. Our family law lawyers will assist you in figuring out how best to help your child have his or her voice heard in your family law proceeding. We will also guide you through the challenging process of determining what those views are, without influencing their views in ways which might confuse the child, or damage your case.+