The idea that a judge will allow the child to choose which parent they live with is misleading. A child’s views and preferences are but one factor to consider in the best interests of the child analysis.
The Convention on the Rights of the Child, a United Nations declaration, says that a child, who is capable, has the right to have their views and preferences heard and accounted for in matters affecting them. These are representative statements for Canada and Ontario. Both the Divorce Act and the Children’s Law Reform Act provide that a Court shall consider the views and preferences of the child where they can be ascertained. But how does the Court receive the child’s views and preferences? Stefureak v Chambers [2004 OJ No 4253] offers guidance on the matter:
There are four primary ways through which the court can ascertain the views and preferences of a child caught in the middle of a custody and access war:
1. through the evidence of trained professionals, such as child psychologists and social workers, who have had contact with the child;
2. through the evidence of the parties and their lay witnesses who testify about out-of-court statements of the child;
3. by means of the judge’s interviewing the child in chambers;
4. by permitting the child to testify.
However, this must be qualified by other comments made by the Court, such as that which is found in Whyte-Blaney v Blaney, [1995 CarswellOnt 2183]:
The Court and counsel are mandated by legislation in this Province to consider in custody and access matters the best interests of the child. The law recognizes children as being in a special category and requiring protection by the Court and its officers. How can it ever be in a child's best interests to read the battling parents' spiteful comments about the child's own father, the child's own mother? How can it ever be in the child's best interest to put words in her mouth and on paper and then ask her to swear to them? How can it ever be in a child's best interest to be present in Court and listen to counsel cast disparaging slurs on a parent, as to that parent's fitness?
Although a very old decision, this case suggests that parents should keep their children out of Court proceedings as much as possible. Thus, the most ideal place a judge is to hear about a child’s views and preferences is probably from a related professional, such as the Office of the Children's Lawyer, who may conduct an interview of the child and create a Voice of the Child report, or from a lay witness who knows the child.
Now that we know how a child’s views or preferences may be heard, the question becomes when will the court take them into account?
The Divorce Act and Children’s Law Reform Act contain identical provisions in relation to considering the child's views and preferences: the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained.
The Ontario Court of Appeal decision of Decaen v Dacaen provides some additional guidance:
In assessing the significance of a child's wishes, the following are relevant: (i) whether both parents are able to provide adequate care; (ii) how clear and unambivalent the wishes are; (iii) how informed the expression is; (iv) the age of the child; (v) the maturity level; (vi) the strength of the wish; (vii) the length of time the preference has been expressed for; (viii) practicalities; (ix) the influence of the parent(s) on the expressed wish or preference; (x) the overall context; and (xi) the circumstances of the preferences from the child's point of view.
In essence, these cases will be decided based on the specific facts of each family and child. But let's talk more about age of the child (a major factor in cases where a child's wishes may be relevant). The younger the child, the less likely the court will consider their views and preferences in these cases. Recent case law suggests that the views and preferences of an 8-year-old child generally have little weight in a parenting order decision:
AP v PP, 2021 ONSC 6540: [Child in question is 8-years-old]. Having regard to the child's young age and level of maturity, I find that her views and preferences cannot be reliably ascertained.
Matthew v Barazmi, 2021 ONSC 7240: The views of the children are one factor. However, as the children are ages 3 and 8, little weight should be given their views in determining what is in their best interests.
Oriaku v Ransome, 2021 ONCJ 660: J.R-O. is 8-years-old. She is not old enough to make decisions on her own that will impact her for the rest of her life.
NS v ANS, 2021 ONSC 5283: [Child in question is 8-years-old]. The child is very young. His views have not been consistent, and he has been subjected to his father's anger and influence. With caution, I place some weight on the child's evidence.
However, a different result was provided for in Canepa v Canepa, 2018 ONSC 5154. The Court ordered that the Office of the Children’s lawyer was to provide a Voice of the Child Report. The children were 8 and 6:
Although the Respondent does not seek to engage the Office of Children's Lawyer, the Children's Lawyer has offered to provide Voice of the Child Reports for children 7 and older. The older child is 8 and falls into that category and ought to be given an opportunity to have a voice. The younger child is 6 years and 7 months. Dr. Walker-Kennedy, who has worked with the OCL and has experience in such reports, is content to undertake the report although the younger child is short of 7 years by 5 months.
While it appears that the Court is more inclined to say an 8-year-old child or younger is too young to have their views and preferences heard, the OCL performs Voice of the Child reports for children who are 7 and up. In Canepa v Canepa, the 8 and 6-year-old had their views and preferences considered. It also appears that the court will consider the uniqueness of each child rather than adhering to some standard age cut-off.
In Rouse v Hoard, 2022 ONCJ 23, there was a nine year old child:
Although Fiona is only 9, there is evidence before me that she is, at present, opposed to receiving the COVID-19 vaccine.
I find that on the evidence before me on this motion, it is not in Fiona's best interests at present to order that Mr. Rouse have sole decision-making authority over Fiona for the purpose of compelling Fiona to be vaccinated against COVID-19.
In Quesnelle v Todd, 2021 ONSC 7259, the views and preferences of an 11-year-old and a 9-year-old were given weight. In AE v AB, 2021 ONSC 7302, the views and preferences of children ages 13 and 11 were given significant weight. In B (AC) v B (R), 2010 ONCA 714, the Court of Appeal stated:
Bearing in mind the ages of the children, 15 and 12, their views would play a large part in the court's ultimate decision.
In M-P v P, 2018 ONSC 7090, there was a 17-year-old and a 15-year-old. Their views and preferences ruled the day entirely:
As mentioned, age is not the only factor in determining whether a Court will consider a child’s views and preferences. If the child is old enough and capable enough of providing their views and preferences, a Court will generally consider whether their views and preferences have been influenced by one of the parents. In Jackson v. Jackson, 2017 ONSC 1566, the children were ages 12 and 9:
I find that Carter's negative expressions about visits were based on the same dynamics, but that he was also being largely influenced by [the father].
In KK v MM, 2022 ONCA 72, the child was 11-years-old:
The appellant submits that the trial judge failed to give adequate weight to J.K.'s views and preferences as required by law. We reject this submission. As noted above, the trial judge carefully considered reports from the CAS, the OCL Voice of the Child report, and the evidence of Mr. Thomas and Ms. MacKenzie (the author of the OCL Voice of the Child report) setting out the children's views and preferences. The trial judge was aware of J.K.'s preference to live with the appellant. However, in relation to J.K. the trial judge found that "J.K.'s level of maturity is commensurate with his pre-teen age" and that "his views have been profoundly influenced by [the appellant's] relentless vilification of [the respondent]."
In Oriaku v Ransome, 2021 ONCJ 660, the child was 8-years-old:
Despite J.R-O. being very bright and articulate, the court is unable to find in this case that J.R-O.'s views and preferences can be ascertained or given significant weight due to the potential influence on those views by the mother's emotions and actions over the past five years. There is a real possibility that the mother has consistently sent J.R-O. the message, either directly or indirectly, that it is wrong to go to her father's home. As a result, not much weight can be put on J.R-O.'s wishes as reported by the mother.
If a Court has found that a child is old enough to express their views and they are not being influenced by either parent, the Court will generally conduct a further analysis into the child's wishes (i.e. how long have they been expressed, how strong are they, how consistent are they, etc.). Ultimately, a child's wishes will be one factor to consider in the larger best interests of the child analysis, which will inform the parenting arrangement.
Obvious takeaways? In deciding a parenting schedule for the children, the child's views and preferences are but one factor in a greater "best interests" analysis. In determining how much weight to give the child's views and preferences the Court of Appeal case of Decaen provides guidance, discussing considerations such as age of the child and influence from the parent.
