Lorne N. MacLean, QC, founder of our highly rated* Views Wishes Child Report Lawyers at MacLean Law, provides a short blog on when and how a child’s wishes are put before the court in a child parenting time and child custody case. Lorne N. MacLean, QC was winning counsel and honoured to have advanced the law of child parenting time and child focused custody dispute resolution in the “maximum contact” case of Young v. Young.
Some judges explain that “a child has a voice but not the choice” in a family child parenting time and child custody case. This week’s Views Wishes Child Report Lawyers case of L.M. v. J.J.M provides a tidy summary of the law. Click here for a brief explanation on how a wishes of the child report can be obtained. Click here to see how the wishes of the child were taken into account in a sole guardianship decision.
In Calgary Practice Note 8 summarizes how child parenting assessments are conducted.
Our Views Wishes Child Report Lawyers operate out of offices located in Vancouver, Surrey, Kelowna, Fort St. John and Richmond, BC as well as downtown Calgary , Alberta.
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[8] There can be no doubt that S.’s views play an important part determining whether his parenting arrangement should change. As I mentioned, S. is now 15 — indeed, nearly 16 — and by all accounts is a mature and thoughtful young man. The FLA expressly recognizes (in s. 37(1)(b)) that a court should consider a child’s views when determining the child’s best interests, unless it is not appropriate to consider those views — and that is not the case here.
[9] A child’s views and wishes are not determinative, but will be given considerable weight, especially when the child is older and more mature. Indeed, a child’s newly-formed views may amount to a material change in circumstances, sufficient to allow a variation of the parenting arrangement: see S.M.M. v J.P.H., 2016 BCCA 284 at para. 22.
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[10] Furthermore, there will be circumstances where a child’s views will prevail to avoid “pushing the child to the point of rebellion”. The Court of Appeal used that phrase in Alexander v. Alexander, (1988) 15 R.F.L. (3d) 363 (B.C.C.A.) at p. 365-66, in upholding a change in custody of a 14-year old who had been unswerving for three years in wanting the change. The Court also said this:
What the child wishes is not necessarily best for the child, but there does come a point when at near adult years a child capable of responsible thought must now be deemed to be able to settle his own future in this important matter. Concomitant with that he must take the responsibility for his own actions.
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[11] In this case, I find that further detail is needed about S.’s views before the Court can determine whether, on the basis of those views and any other factors relating to his best interests, the parenting arrangement should change.
[20] It will help the Court make a decision about S.’s parenting arrangement to have a detailed report about S.’s wishes, prepared by a neutral professional. As I noted earlier, Ms. Devries met recently with S., with the parties’ consent. If S. is comfortable meeting with her again, she should be asked to prepare a “views of the child” report concerning S.’s wishes about his parenting arrangement, as well as about ongoing contact with Mr. M. and with members of his family. S. should also be asked whether he is willing to meet with a counsellor to receive emotional support and to explore methods of restoring a relationship with his father and other members of the M. family. Ms. Devries’ recommendations, taking into account S.’s wishes, are also requested about whether, when, and how contact with Mr. M. or with other members of his family may be resumed.
[21] If S. is not comfortable meeting again with Ms. Devries, the parties may agree on a different professional, agreeable also to S., to prepare the report. Failing that agreement, either party may contact Supreme Court Scheduling and request to appear back before me.
[22] The report is ordered under s. 211 of the Family Law Act, but should be limited in its scope to the topics I have outlined above.
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