What is the Legal Age at Which a Child Can Decide Which Parent to Live With?

At our firm, there is one common question we routinely field from clients and potential clients going through a separation and divorce: 

“At what age can my child decide which parent they are going to live with?” 

In Canada, there is no defined age.  Neither the federal nor provincial laws address this specifically.  

But that doesn’t mean the question is entirely up in the air.  Both the Divorce Act and the Ontario Family Law Act provide a framework prioritizing the best interests of your child, and this includes considering your child’s views and preferences based on their age and maturity.

The Divorce Act

We’ll start with the Divorce Act, which applies if you are legally married to the other parent and are seeking a divorce. That Act emphasizes the best interests of your child as being the paramount consideration in all decisions around parenting time and decision-making responsibility (formerly called “custody” and “access”). 

The Act does not specify a precise legal age at which your child can choose which parent to live with. But it does emphasize that your child’s views and preferences are an important part of that “best interests” assessment – as long as those views and preferences can be reasonably ascertained. 

This is set up in section 16(3) of the Divorce Act. It sets out the factors a court must consider in determining your child’s best interests, and includes: 

1. Your child’s needs, given their age and stage of development.
2. The nature and strength of your child’s relationship with you and the other parent, any siblings, and other significant persons.
3. Your child’s views and preferences, giving due weight to your child’s age and maturity.

With that said, the courts will tend to treat the views/preferences of younger children differently than those of older ones.  They recognize that as your child grows older and more mature, his or her opinions should carry more weight in the overall assessment.  This is especially true if your child is a teenager (i.e. aged 12 and older) – although even in that case the final decision always rests with the court.

 

Ontario Family Law Act

Next, if you live in Ontario and are merely separated from the child’s other parent (regardless of whether you are married or unmarried) then the provincial Family Law Act will govern the court’s decisions around parenting time and decision-making for your child. As with the Divorce Act, the Family Law Act prioritizes the best interests of your child, but it likewise does not prescribe a specific age at which your child can independently decide their living arrangements.  Instead, it outlines the criteria for considering your child’s best interests, and includes:

1. The love, affection, and emotional ties between your child and both you and the other parent. 
2. Your child’s views and preferences, if they can be reasonably ascertained.
3. The length of time your child has lived in a stable environment.
4. The ability and willingness of both you and the other parent to provide for your child’s needs.
5. The permanence and stability of the family unit with which your child will live.

Related: Ontario Divorce Process

Factors Influencing Custody Decisions

Both the Divorce Act and the Ontario Family Law Act emphasize that while the views of older children might be given more weight, the court will still have the final say in custody decisions. Several factors influence these decisions, ensuring that the child’s best interests are always the primary consideration. Here are some of the critical factors:

Child’s Age and Maturity

Courts recognize that as children grow older and more mature, their ability to form and express reasoned preferences increases. Typically, the opinions of teenagers (aged 12 and older) are given more weight, reflecting their greater understanding and capability to articulate their wishes.

Emotional Ties

The emotional bonds between the child and each parent are carefully evaluated. This includes considering the child’s attachment to each parent, the quality of the parent-child relationship, and the presence of significant emotional connections with siblings or other family members.

Stability in Living Environment

Stability is a key factor in ensuring the child’s well-being. Courts examine the length of time the child has lived in a stable environment, and how a change might affect their overall stability and sense of security. The goal is to minimize disruption to the child’s routine and daily life.

Child’s Needs

The specific needs of the child, given their age and stage of development, are considered. This encompasses physical, emotional, educational, and social needs. The ability of each parent to meet these needs is critically assessed.

Parenting Abilities

Each parent’s capability and willingness to provide for the child’s needs are scrutinized. This includes evaluating each parent’s physical and mental health, their ability to provide a nurturing environment, and their readiness to facilitate the child’s relationship with the other parent.

Parent-Child Relationship Dynamics

The nature and strength of the child’s relationship with each parent, as well as any history of involvement in the child’s life, are important. Courts look at which parent has been the primary caregiver and the extent to which each parent has contributed to the child’s upbringing.

Child’s Preferences

If the child’s views and preferences can be reasonably ascertained, they are taken into account. The weight given to these preferences varies depending on the child’s age and maturity. Courts ensure that the child’s expressed wishes are genuinely their own and not influenced by parental pressure.

Impact on Education and Social Life

The potential impact of custody decisions on the child’s education and social life is considered. This includes the proximity to the child’s school, friends, and community activities. Maintaining continuity in these areas is often seen as beneficial to the child’s overall well-being.

Parental Cooperation and Conflict

The degree of cooperation or conflict between the parents can significantly influence custody decisions. High levels of parental conflict can negatively affect the child, and courts may favor arrangements that minimize exposure to ongoing disputes.

Expert Assessments

Input from professionals such as child psychologists, social workers, and custody evaluators is often sought to provide an objective assessment of the child’s needs and best interests. These experts may conduct interviews, home visits, and psychological evaluations to inform the court’s decision.

Future Plans

The future plans and stability of each parent are considered, including their intentions regarding housing, employment, and the child’s long-term care. Courts look for evidence of a stable and supportive environment in which the child can thrive.

 

In summary, while the child’s preferences are a vital part of the custody decision process, they are considered alongside a comprehensive evaluation of various factors to ensure the child’s best interests are upheld. Each case is unique, and courts strive to balance these elements to arrive at a decision that promotes the child’s overall well-being and stability.

Related: How to Get a Child Custody Agreement Instead of a Child Custody Battle

Practical Considerations

With all that said, determining your child’s views and preferences is not done in vacuum. The process can involve input from professionals such child psychologists and social workers who may conduct interviews and assessments. These are designed to ascertain your child’s genuine preferences, and to ensure those preferences are informed and not unduly influenced by either you or the other parent.

Here’s a more detailed look at the practical considerations:

Professional Assessments

• Child Psychologists: Child psychologists play a crucial role in understanding the child’s emotional state and preferences. They conduct detailed interviews and psychological assessments to gauge the child’s feelings and thoughts about their living arrangements. These professionals are trained to recognize signs of undue influence and ensure that the child’s expressed preferences are authentic.
• Social Workers: Social workers often perform home visits and assessments to observe the child’s living conditions and interactions with each parent. They provide a comprehensive report to the court, highlighting the child’s daily environment, routines, and the quality of care provided by each parent.

Interview Techniques

• Age-Appropriate Questions: Professionals use age-appropriate questioning techniques to elicit the child’s true feelings and preferences. Younger children might be engaged through play-based activities, while older children and teenagers may be interviewed directly.
• Neutral Environment: Interviews are often conducted in neutral settings, such as schools or offices, to make the child feel comfortable and free from parental pressure.

Observation and Interaction

• Behavioral Observations: Professionals observe the child’s behavior and interactions with each parent. This can provide insights into the child’s comfort level, attachment, and overall well-being when with each parent.
• Parental Interaction: Observing how parents interact with the child during these assessments helps professionals evaluate the parenting styles, responsiveness, and the ability to meet the child’s needs.

Reports and Recommendations

• Comprehensive Reports: After conducting interviews and assessments, professionals compile comprehensive reports detailing their findings. These reports include observations, the child’s stated preferences, and any concerns about potential influences or pressure from the parents.
• Court Recommendations: Based on their assessments, professionals provide recommendations to the court regarding the child’s best interests. These recommendations are crucial in helping the judge make an informed decision.

Ensuring Genuine Preferences

• Avoiding Parental Influence: It’s essential that the child’s preferences are free from undue influence. Professionals are trained to detect signs of coaching or manipulation and ensure that the child’s expressed wishes are genuinely their own.
• Educating the Child: Part of the process may involve educating the child about what it means to express a preference and the potential implications of their choices. This helps ensure that the child’s decisions are informed and thoughtful.

Legal Representation for Children

• Child Advocates or Guardians ad Litem: In some cases, the court may appoint a child advocate or guardian ad litem to represent the child’s interests. These individuals provide an independent voice for the child in legal proceedings, ensuring their preferences and best interests are adequately represented.

Impact of Assessments on Court Decisions

• Influence on Custody Arrangements: The findings and recommendations from these assessments significantly influence custody arrangements. Courts rely on these professional insights to determine the most suitable living arrangement for the child.
• Balancing Preferences with Best Interests: While the child’s preferences are important, the court balances these against other factors to ensure the overall well-being and stability of the child. The goal is to arrive at a decision that promotes the child’s long-term best interests.

Continuous Monitoring

• Ongoing Assessments: In some cases, continuous monitoring and follow-up assessments may be required to ensure that the child’s living arrangements remain in their best interests over time. Changes in circumstances, the child’s evolving preferences, and other factors are considered in ongoing evaluations.

Related: What All Divorcees Can Learn From a Couple That Spent 500K on a Child Custody Battle

The Takeaway

Both the federal and Ontario laws ensure your child’s voice is part of the decision-making process around where he or she will live, in your separation or divorce. If you need tailored guidance on how the various factors might apply to your particular situation, give our offices a call.