A Child’s Choice: The Role of Age in a Child’s Views and Preferences

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  Katrina Wiegers
  Lawyer

This month’s blog series is about the different ways in which children’s views and preferences are taken into account during the court process. When parents separate, one of the most important decisions they must make is how to divide parenting time between them. The goal is always to determine what is in the best interests of the child. The Divorce Act and the Children’s Law Reform Act, outline several factors that should be considered when making these decisions, one of which is the child’s views and preferences. However, the weight that a child’s views are given in parenting time decisions is not always straightforward–it depends significantly on the child’s age and maturity level. 

Legislative Guidance  

Both pieces of legislation acknowledge that a child’s views and preferences are an important factor in determining the best arrangement for their care. However, the degree to which a child’s opinion is taken into account will vary depending on their age and maturity. As children grow older, their ability to understand the circumstances surrounding their parents’ separation and articulate their preferences typically improves. Consequently, older children’s views tend to be given more weight. 

The Role of Age 

That said, there is no specific age–such as 12 or 14–when a child automatically gets the right to choose with which parent they will live. Every child is unique, and the timing at which they are capable of forming coherent preferences about parenting arrangements differs. While a 14-year-old might be able to express a clear preference, a younger child may not have the emotional or intellectual maturity to fully understand the implications of a decision. 

For very young children, their ability to form and express coherent views on parenting arrangements may be limited or non-existent. Instead, the court may rely on the child’s behavior, emotional wellbeing, and input from professionals such as social workers, child psychologists, or counselors. In some situations, involving a third party becomes necessary to help the child articulate any feelings or preferences that they might have, especially when there is high conflict between the parents – we will discuss third parties more next week.  

The courts do not treat a child’s views as the sole determining factor when making parenting decisions. In fact, a child’s views are just one of several factors that the judge must consider. The child’s age, emotional state, and the degree of conflict between the parents all play significant roles in shaping the final decision. While a child’s wishes can carry weight, they are not determinative or binding. 

The Court’s View 

There are several cases in Canadian family law where the child’s views have played a significant role in decisions about parenting time. In Kincl v Malkova (2008), the Ontario Court of Appeal emphasized the importance of considering the views of a 14-year-old child, particularly given her age and the prolonged lack of access to her father. The court acknowledged that the child’s wishes were significant in this case, highlighting the need to ensure that the child’s preferences were taken seriously without creating a situation where the child felt compelled to breach a court order. 

In another case, Supple v Cashman (2014), the court addressed a situation where the children strongly expressed that they did not want to visit their father. Despite the mother’s efforts to enforce parenting, the children’s emotional states and expressed preferences were deemed to be of primary importance. The court emphasized that, in such circumstances, the emotional wellbeing of the children had to be given proper consideration, along with their ages and evolving opinions. 

The views and preferences of a child are a critical consideration when determining parenting time arrangements, but they are never the sole factor. Ultimately, the court’s job is to ensure that the decision made supports the child’s best interests, balancing their preferences with their overall emotional and psychological needs. If you or someone you know is struggling with the complexities of co parenting consulting with a knowledgeable family lawyer, like those at McKenzie Lake Lawyers, can help you navigate the complexities and advocate for your children. 

If you require assistance with any Family Law matter, speak to a Family Lawyer at McKenzie Lake Lawyers LLP by calling (519) 672-5666.