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There is a common misconception among separating parties that, when their children are “old enough,” they will be able to decide which parent to live with. Well – this is not exactly how it works.

In short: a child’s views and preferences are one of several factors the courts will consider and weigh in determining the parenting arrangement. In both s. 24(3) of the Children’s Law Reform Act, the legislation governing unmarried parties, and s. 16(3) of the Divorce Act, the legislation governing married parties, the legal test for where the child will reside is: what is in the best interest of that child?

Under the Divorce Act, the best interest of the child is determined by considering the child’s physical, emotional and psychological safety, security, and well-being, including:

  1. The child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
  2. The nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
  3. Each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
  4. The history of the care of the child;
  5. The child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
  6. The child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
  7. Any plans for the child’s care;
  8. The ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;
  9. Any family violence and its impact on, among other things,
  10. The ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child; and
  11. The appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and
  12. Any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security, and well-being of the child.

These factors are largely echoed in the CLRA, and both legislations suggest that the child’s views will be considered based on their age and maturity. As children get older, their views and preferences may be given more weight, but it is certainly not determinative – meaning other factors will also play a role in forming the decision on what is in their best interest. The right of a child to express their views is in fact, provided in the United Nations Convention on the Rights of the Child, which Canada is a party to. Under this Convention, children have this right as long as they can form their own views.

The courts are also privy to the reality that sometimes the child’s views and preferences may be difficult to ascertain – for instance, if there is a lot of conflict between the parents, and the child is being coached, or has allegiance to one parent or the other. Other times, it is not in the best interest of the child to be put in positions where they are obligated to “pick a side.” These types of responsibilities imposed on a child, can cause a lot of psychological strain, and trigger guilt. On the other hand, there is evidence that some children cope better with separation of their parents when they are able to have a say and have their views be heard.

How to Ascertain the Child’s Views

It is always best to avoid asking children questions like “who do you want to live with?”. This propels them into the parental conflict. Instead, it is helpful to talk to the children broadly about what life may look like when being co-parented from two different households; speak broadly about what is important to them; consider daily routines; and create a plan that involves their input.

If a child is not comfortable sharing their views directly with parents, it may be advisable to work with a professional like a social worker or psychologist to learn about their preferences. If in court, parties may consider hiring a third-party professional to prepare a Voice of the Child report, wherein the child and parents are interviewed and a report is prepared based on the findings. Alternatively, parties may request that a court endorse the involvement of the Office of the Children’s Lawyer, an independent counsel assigned to the children to provide recommendations on parenting time once the children have been interviewed.

How Can We Assist

There are strategic methods of negotiating to have a greater weight placed on your child’s voice, or presenting a narrative in court that seeks to place an emphasis on your child’s views. Our lawyers our versed in advising and advocating on behalf of you and your children to determine a parenting arrangement that is best for your family.

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