Many children will express a preference for one parent over another. These preferences often change over time, sometimes moment to moment, depending on who the child feels closest to. Courts may take the child's preference into consideration when making an order on parenting time. However, the weight a Court places on the child's preference will depend on the child's maturity and age. There is no defined age in Alberta or in British Columbia at which children can choose where to live when their parents are separated. The preferences of a young child will probably not carry much weight, but the significance of an older child's choice will vary. The judge will need to interpret and apply the law to the particular circumstances of each case.
The law that applies depends to some extent on where you live. For example, in Alberta, "custody and access" issues are governed by the Divorce Act ("DA"), while "parenting time" is addressed by Alberta's Family Law Act ("FLA AB"). Similarly, in British Columbia, child “custody and access” is also under the DA, while “parenting time” is covered by British Columbia's Family Law Act (“FLA BC”).
Notwithstanding some differences in the legislation from province to province, each of the Acts cites the "best interests of the child" as the determining criterion for decisions regarding which parent a child will live with. Under that overarching rule, the child's views or preferences may have some weight on the Court's decision. However, there is no set age in either of the DA, the FLA AB, or the FLA BC at which at which a child's views will determine where the child will live - it will depend in each case on whether the child's choice is consistent with their best interest.
According to the Alberta Court of Appeal in RM v JS, 2013 ABCA 44 ("RS v JS"), the Court will give greater weight to a child's wishes when the child has “attained an age and degree of maturity at which it [is] appropriate to take account of [the child's] views". However, it is necessary to have an evidentiary basis that allows the Court to determine a child is mature enough. This could be evidence from, for example, a child psychologist or a counsellor. The Court in RM v JS further explains that "even if there [is] sufficient evidence before the court to allow the judge to consider the child’s s views, it [is] unreasonable to treat the child’s objections as controlling, and giving them inordinate weight".
Similarly, British Columbia courts have recognized that as a child ages and matures, that child’s views should be given greater weight. While an older child’s wishes may not be determinative, in O’Connell v McIndoe, 1998 CarswellBC 2223 (BCCA), the Court held that “ in order for custody orders relating to children in their teens to be practical, they must reasonably conform with the wishes of the child” (at para 13).
Evidence regarding a child’s wishes will often be in the form of a report called a “Voice of the Child” report, where a psychologist or counsellor meets with the child and assesses what the child’s views and preferences are. This will only be conducted if the Court believes it would be appropriate to do so, as a very young child may not be able to express their wishes, or it may place a child in an uncomfortable situation. As in Alberta, while an older child’s wishes will be given greater weight in British Columbia, those wishes are not the only factor the Court will consider.
Generally, as children grow older, the Courts will rely more heavily on those children’s views. This can be a very complex area of the law and can include many other considerations such as the reasons a child gives for expressing a preference, whether that preference is genuine, and whether it is in the child's best interests (or not) to allow them to decide where to live.
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