February 4, 2016 MasterEditor

Views of Children in Custody & Access Cases

In determining the appropriate parenting arrangement, the courts are specifically directed by our legislation to consider only the best interests of children (Section 16(8) of the Divorce Act).  In determining what is in the best interests of a child, all of the child’s needs and circumstances must be considered by the court, including a number of factors set out in Section 37 of the Family Law Act.  These factors include the child’s views, unless it would inappropriate to consider them.

We are often asked at what age can a child determine where they want to live.  There is considerable case law on this issue which goes back many decades.  In our jurisdiction the courts have said, as an example, the wishes of a 13 year old determined the issue while the wishes of the 11 year old sibling were merely instructive.  Judges have often said that the wishes of a mature teenager may decide the matter as the courts are reluctant to make a custody order that does not reasonably conform with their wishes.  However, the court is not bound by the views of a child to live with one parent when the best interests of that child appear to lie in granting custody to the other parent. 

We are also often asked how do you place before the court the views of a child.  Sometimes it may be appropriate for a parent or other witnesses to simply testify in court as to what the child has told them as to their wishes.  However, this may not be satisfactory to the court as often children, particularly at a younger age, can be influenced by a parent and their stated intention may not actually reflect their wishes.

Judges from time to time have privately interviewed children in their office.  Again, this may not be appropriate as it can be seen as putting the child into the middle of the dispute and the child could be intimidated by having to go through the process of attending court. 

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