At What Age Can a Child Decide Which Parent to Live With in Ontario?

Introduction

Family law lawyers are frequently asked, “At what age can a child decide which parent they would like to live with?” Sometimes, this information is used to press another parent to submit to a change of parenting time or decision-making. Sometimes, it is shared with children, to embolden them to make their own decisions as to their living arrangements. Sometimes, it is a factor that prompts a parent to take Court action, to amend living arrangements.

In any event, it is often a critical piece of information that informs the actions of those trying to address the needs of children in separated or divorced homes. Too often, people operate on misinformation about this subject from informal sources, the media or uninformed spokespeople.

If you are contemplating this question, it is critical that you allow a knowledgeable family law lawyer to arm you with the best information, to ensure the healthiest and happiest outcome for you and your children.

Let’s get right down to it by stating that there is no bright-line answer to the question.

Children eighteen years and older are not the subject of parenting time and decision-making proceedings between their parents. The Courts will respect their ability to make decisions as persons over the age of majority. So our discussion today will focus on minor children.

When questions as to:

1. decision making;  
2. parenting time; or
3. other Court ordered requirements

for minor children are put before a family law judge in Ontario, the critical consideration is “the best interests of the child”. This is a legal test, and there are multiple factors that a judge is asked to consider in implementing this test. For minor children the amount of importance a family law judge places on their own views and preferences will depend on:

• their maturity,
• their special needs or abilities,
• the clarity and consistency of their expressed views,

and many other factors, related to their best interests. As will be discussed below, in some instances, the deciding factor in a parenting dispute can be the child’s views and preferences. In other instances, other factors in the “best interests” test are given more weight in the family law judge’s decision.

Best Interests of the Child

For parents who are legally married in Ontario, “the best interests of the child” test is contained at Section 16 of the Divorce Act. For common law and unmarried parents in Ontario the test is contained at Section 24 of the Children’s Law Reform Act.  The legal tests are similar. In making decisions as to the best interest of a child, they require consideration of factors such as:

• age and stage of development of the child;
• any special needs or abilities the child might have;
• the existing relationship of the child to both parents, siblings, grandparent(s), and any other person who has played an important role in the child’s life;
• each parent’s willingness and ability to support the child’s relationship with the other parent, communicate and cooperate on matters affecting the child, and to care for and meet the needs of the child;
• the child’s cultural, linguistic, religious, and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
• the child’s views and preferences; and,
• presence of domestic violence.

No factor is considered more important than the other (Wilson v Wilson), and since every child and family is unique, each case turns on its own facts.

How are the child’s “views and preferences” weighed against other “best interests” considerations?

The Court of Appeal for Ontario weighed in on this question in the case of  Decaen v Decaen.  At paragraph 42, the Court, sets out a list of factors that are relevant in assessing the child’s wishes:

• whether both parents are able to provide adequate care;
• how clear and unambivalent the wishes are;
• how informed the expression is;
• the age of the child;
• the maturity level;
• the strength of the wish;
• the length of time the preference has been expressed for;
• practicalities;
• the influence of the parent(s) on the expressed wish or preference;
• the overall context; and
• the circumstances of the preferences from the child’s point of view.

Age is never a definitive factor.

As family law lawyers, we are often presented with the erroneous notion that a child can make a decision as to their living arrangement at the magical and definitive age of 16. We remain uncertain as to the source of this widely held misconception.

In general, the older a child is, the more weight their views and preferences will be given.

However, there is no precise age at which a child can just decide to not follow a parenting order.

A stark example of this is found in the case of Reid v Reid (2019 ONSC 5621), in which Justice Shore explicitly considered the question, “Is there a rule that a sixteen-year-old child is absolved from following custody orders and can make their own decision?”. In the Reid decision, a 16-year-old had her own counsel to represent her in her parent’s high conflict family law proceedings. Her counsel argued that she should live with her father pending the trial. Justice Shore ordered that she live with her mother pending the trial. Justice Shore clarified the common misconception about the magical age of 16 at paragraph 29 of the Reid decision: “At the age of 16 a child can withdraw from parental control.

There are also certain rights and autonomy afforded to a 16-year-old child under the law. […] That does not mean that every 16-year-old can dictate where they live or ignore court orders with respect to custody and access, or that every sixteen-year old can withdraw from parental control.”

So when might an older teen have a compelling say?

With older teenagers, in particular teenagers who are committed to disobeying parental authority, there is limited action that a family law court can take to control their behaviour. Family court orders are civil matters and unless there is an order for police enforcement of parenting time, law enforcement has no jurisdiction to enforce. Other than the most extreme circumstances, family law judges are loathe to impose police enforcement of parenting time on a child.

Oftentimes, family law judges recognize the practical limitations to forcing a teenager into a parenting arrangement they are unwilling to abide by. In the case of Wallace v Fisher Justice Aston had to decide the parenting arrangements for a 17-year-old who was resisting court ordered parenting time and reconciliation therapy with her mother. Even though Justice Aston found that the father was at least partially responsible for the teen resisting time with her mother, he declined to enforce the previous parenting orders. His Honour found at paragraph 19 that, the child’s “adamant position, her age, and the four-year hiatus in any semblance of a relationship with her mother lead me to believe it would be futile, even counterproductive, to make any of the remedial orders sought.”

The contrasting outcomes in the Reid and Wallace decisions emphasize how each family law case, is unique.

As children differ greatly in their maturity in their late adolescent and teenage years, the court will also consider the child’s maturity level in making an order for parenting time. Likewise, a child who consistently expresses their views and preferences over a period of time will likely be given more weight than a child who has given inconsistent statements about their views and preferences, or appears to be influenced by the presence of one or both parents when stating their views and preferences.

Children’s Evidence

Some of the challenges of ascertaining the children’s views and preferences in a family law proceeding are:

• getting their evidence before the Court; and
• getting reliable, uninfluenced evidence before the Court.

Under the Divorce Act parents have an obligation to shelter their children from the conflict of family law proceedings. Most witnesses can simply submit their evidence in favor of one parent via an affidavit or appearing to give oral evidence to a judge. Due to the Divorce Act provisions it is inappropriate for children to tender direct evidence in support of one parent over the other in this manner. So what are the options available to put the voice of the children before the Court?

1. Represented by counsel (generally more appropriate for older teenagers)

• OCL – Sometimes teenaged children, such as the teen in the Reid decision, will be represented by counsel. Parents who are litigating their parenting matters in Ontario can ask the judge to make an Order requesting the appointment the Office of the Children’s Lawyer (“OCL”) and in some instances the OCL will appoint counsel on behalf of the child. The role of the OCL in decision making and parenting matters shall be discussed in further detail below.

• Private Lawyer – In cases were the court feels an OCL order is inappropriate, or if the OCL declines to become involved after being requested by the court, sometimes parent(s) will pay for their children’s counsel themselves, although for cost reasons, this is uncommon, and both parents must consent to this plan.

• Voice of the Child report, prepared by a clinician such as a social worker (generally more appropriate for adolescents and younger teenagers)

In cases involving children who are too young to instruct counsel, some evidence can be ascertained through a social worker, or other therapeutic professional, and presented to the court in several different ways.

A Voice of the Child (“VOC”) Report is a brief report that can be prepared by a clinician and entered as evidence. The Office of the Children’s Lawyer can prepare a Voice of the Child report, or a clinician hired privately by one or both parents to present their child(ren)’s views and preferences can prepare a VOC report. This is generally more appropriate in cases involving children who are at least 7 years old, as the views and preferences of very young children generally have less weight than the views and preferences of older or more mature children.

In cases where parents are negotiating their family law issues outside of Court, with the goal of arriving at a Separation Agreement dealing with decision making and parenting time, it is still possible for the child’s views and preferences to be ascertained in a child-focused way. Should the parents be mediating their family law issues, the Barrie Mediation Centre offers a service where the child(ren) can meet with a mediator separate from their parents and provide their views and preferences. The individual who meets with the child can then report back to the parents, and their mediator, who have the benefit of the child’s viewpoint before arriving at a final agreement. This is a service that is paid for out-of-pocket by the parents.

• Office of the Children’s Lawyer Report prepared by a clinician such as a social worker (generally more appropriate for younger children, when clinical issues are present)

The other way that a clinician’s evidence regarding the best interests of the children can be ascertained is an investigation and report by the OCL under Section 112 of the Courts of Justice Act. These reports are extremely detailed and are divided into three parts: clinician observations, recommendations, and a list of collateral information collected.

The OCL clinician generally meets with both parents at least one time, often more, and observes the child at each parent’s home. The clinician may also interview important people in the child’s life, such as the child’s grandparents, aunts, uncles, 3^rd party care providers, doctors, counsellors and teachers. The clinician has access to information such as records from any Children’s Aid Societies that were involved with the family, and police reports of contact with the family. The clinician will draft a report based on the interviews and collaterals collected and will make a list of recommendations to the court. The third part of the report, which is a list of collaterals, serves as an appendix to the detailed report and contains all the sources the clinician spoke with or reports relied upon in completing their report.

Role of the Office of the Children’s Lawyer (“OCL”)

Above, I have discussed the OCL’s ability to:

1. Provide counsel for a child; or
2. Perform and investigation and report as to the needs and interests of a child.

So, who are they and how do they operate?

The OCL is part of Ontario’s Ministry of the Attorney General. It is taxpayer funded. The OCL usually becomes involved in a family law matter by way of a court order, which limits their involvement to parenting disputes being litigated in Ontario’s family courts. They are generally not available to represent children in matters that are resolved by way of alternative dispute resolution such as mediation or direct negotiation.  

It is within the discretion of the family law judge, whether to make an order requesting the involvement of the OCL. As the OCL has limited resources, generally judges will not request the involvement of the OCL in the absence of clinical concerns such as domestic violence, child protection concerns, or high conflict separations.

If the family law judge decides that the matter is an appropriate matter for the OCL, an order is made requesting their involvement, the parents have two weeks from the date of the OCL Order to complete their intake forms and submit them via fax or e-mail to the OCL. The OCL itself then has the ultimate discretion as to:

• whether to take on a matter, and
• whether to appoint a lawyer or a clinician, to the matter.

As discussed above, in cases involving older children, it is more common for a lawyer to be appointed, and, in cases involving younger children, it is more common for a clinician to be appointed. An Order can also be made explicitly seeking the involvement of a clinician to conduct a Voice of the Child report, as discussed above.

Conclusion

So what we can conclude:

• Ontario’s Children’s Law Reform Act has made it clear that the views and preferences of a child are a critical component in determining a parenting plan for the child.

• The communication of views and preferences can also be a great contributor to a child’s wellbeing when going through the hardship of a family breakdown.

• However, there are many challenges in evaluating the views and preference of a child. Children do not necessarily know what is in their best interest. Their views may be shaped by immaturity; they may be variable and inconsistent; and they may be influenced by pressures from one or both parents, among other concerns.

• Furthermore, there are procedural and legal hurdles to getting a child’s views and preferences before a family judge.

• Even in circumstances where the child is an older teenager, and they have clear and consistent views and preferences, there is no guarantee they can choose which parent to live with.

• However, in general, if a parent can surmount legal and procedural hurdles and place the voice of their child/children before the Court, children’s evidence is valuable to family law judges, the parties and all players in the process in determining what parenting arrangement is in their best interests.

• It is always important to obtain independent legal advice on your family’s unique circumstances to determine the best path forward.

Contact Bair Family Law today for a consultation.