Custody and Access: The Voice of the Child

When can my child choose which parent to live with?

This is one of the most common questions we receive from clients.  Often it is asked with, "I heard that when my child is 12..." or "My child is 13, can he decide..."  There are many misconceptions about at what age a child can decide where they want to live.  This is because there actually is no age at which they get to decide.

Your child's preferences are only one factor in determining their best interests.  The Children's Law Reform Act lists "the child’s views and preferences, if they can reasonably be ascertained" as only one of "the child’s needs and circumstances" that must be considered.  The child's views and preferences are not determinative on their own.

It is possible that a child's views and preferences will be given more weight and respect at the child grows older and more mature.  However, the age at which a child is mature enough to make such a decision varies depending on the circumstances.  A court will also consider why a child has reached the decision they have.  Has the child been alienated?  Is the child motivated by a desire to remain in a neighbourhood, house, or city, rather than a parent?  Is the child motivated by the parenting style of one or the other (e.g. a very permissive parent) or promises one parent has made?

Ultimately, the court is guided by what is in the best interests of child.  It is always possible for a judge to decide against what a child wants.  This was the case in Kingdon v. Kramer.  In that case, the child was 19 years old but suffered from serious physical and developmental disabilities.  Although the child wanted to live with his mother, the court found that was not in his best interests at the time.