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Parenting Time Child Views and Wishes

Parenting Time Child Views and Wishes law is developing rapidly. Judges and experts believe better outcomes for children occur when the child’s Parenting Time Child Views and Wishes are considered. Contact any of our experienced lawyers at our 7 offices across BC and in downtown Calgary. We handle cases in all of BC and Alberta.

Parenting Time Child Views and Wishes-Voting With Their Feet: When Do Your Child’s Opinions Matter? 1 877 602 9900

What are: Parenting Time Child Views and Wishes? As a parent, you feel strongly that you know what is best for your child. If you are separated, your former partner probably also feels that they know what is best for your child, and what they think is best may be different than what you think is best. However, there is likely a third party who also has a strong view concerning the best interests of the child: the child. When does a court consider a child’s opinions when making a decision? And how much weight will their opinion hold in the eyes of the court?

Parenting Time Child Views and Wishes – The Law

1 877 602 9900

Section 18(1)(f) of the Alberta Family Law Act, 2003, Ch F-4.5, states that in determining what is in the best interests of the child, a court shall take into consideration the child’s views and preferences, to the extent that it is appropriate to ascertain them. In other words, the extent to which a court considers the child’s opinion in a family law matter is dependent on that child’s age and maturity.

Indeed, the older a child is, the more weight that the court will give to their wishes when coming to a parenting decision (Bergen v Bergen, 2008 ABQB 237 at para 43). The Alberta Court of Queen’s Bench in Albers v Albers, 2011 ABQB 456, held that the views of a child over 12-years-old should always be considered by the court in parenting disputes (at para 18). The Alberta Court of Appeal in Thompson v Thompson, 2017 ABCA 299, held that a child over 14-years-old is presumed to have enough maturity to express their view about a parenting issue, though that view may not be determinative of the court’s decision (at para 17).

However, age is not the only factor the courts will consider when determining the weight to place on a child’s views. An 11-year-old child can show more maturity or perspective than a 14-year-old in the same circumstances, or for a 13-year-old child to be more susceptible to influence by a parent than a 10-year-old. As such, a child’s maturity level and circumstances must be taken into consideration. In RM v JS, 2013 ABCA 441, the Alberta Court of Appeal suggested several factors to determine whether a 10-year-old child was sufficiently mature enough for the court to consider their opinion when deciding between returning the child to Canada. While some of these factors apply specifically to returning the child to Canada, they are instructive when considering any parenting dispute (at para 25):

When looking at Parenting Time Child Views and Wishes cases,  The court might look at some of the following earmarks of maturity, such as:

  1. whether this child had made good decisions of a substantial nature for herself in other situations;
  2. whether she had the ability and opportunity to, and had reasonably weighed the more important competing benefits and disadvantages in reaching her decision;
  3. whether her decision was reached with a reasonable measure of independence;
  4. whether her fears relating to returning to the home state appear reasonable, in the circumstances—in particular in this case:

(a) whether she had considered and understood that, even if the court acted on her wishes and allowed her to stay in Canada, her two younger sisters might have to return to England and leave her behind;

(b) whether she had considered not only the scenario of living with her mother if she were to return to England, but also, the alternative of living with her father if she were to return to England pursuant to any order of this court; and

(c) whether she had a reasonable appreciation of the potential consequences of her decision, should the court act on her views, especially in regards to her future relationship with her mother.

These are tall orders for a young child. The stronger the evidence that a child had touched some of these bases, the greater would be the court’s comfort level in relying on this young child’s views.

The Court of Appeal went on to state that the determination of whether a child’s opinion should be considered is not a question of solely their age or their maturity level, but a combination of both factors (at para 31). Furthermore, even with the requisite age and maturity, their opinion may not be an automatic veto.

Child Custody Views Of The Child 1 877 602 9900

That said, the opinion of a child of sufficient age and maturity will be given weight by the court. As children get older and gain independence, their cooperation is required to give effect to any parenting order. Courts recognize that older children “vote with their feet”, and may not comply with a parenting order with which they do not agree. See, for example, O’Connell v McIndoe, [1998] BCJ No 2392, a case where the British Columbia Court of Appeal reversed a parenting order granting sole custody to the father, because the 13-year-old child at issue would not comply with the order, and kept returning to the mother. A court will not grant an order that will not work from a practical perspective as a result of the child’s wishes and ability to be independent.

In BC, Parenting Time Child Views and Wishes are expressly included in the best interests of the child considerations in s. 37 of the Family Law Act. As set out in the BC Family Law Sourcebook:

The degree to which the wishes of the child will be considered depends on the age and maturity of the child. In McGowan v. McGowan2001 BCSC 1070the wishes of a 13-year-old child were determinative while the wishes of the 11-year-old sibling were merely instructive. In R. (G.A.G.) v. W. (T.D.)2013 BCSC 586, an 11-year-old girl’s views were taken into account to successfully defend a return order under the Hague Convention. In Q. (R.E.) v. K. (G.J.)2015 BCSC 1786, a relocation case was adjourned to ascertain the views of a 12-year-old. In M. (S.M.) v. H. (J.P.)2016 BCCA 284the court agreed with the trial judge that the wishes of a 13-year-old child should be given significant weight and could constitute a material change in circumstances (at paras. 19 and 22). In F. (D.A.) v. F. (R.D.)2017 BCSC 873the court gave considerable weight to the wishes of a 12-year-old to change his primary residence from his father’s to his mother’s, and varied the parenting order accordingly.

The court has the jurisdiction to interview a child to ascertain the child’s wishes, even without the consent of the parents (G. (L.E.) v. G. (A.)2002 BCSC 1455).

In J. (C.J.) v. J. (A.)2016 BCSC 676 at paras. 332 and 333, the court cited with approval N. Bala et al., “Children’s Voices in Family Court Guidelines for Judges Meeting Children” (2013), 47 Fam. L.Q. 381 at 396 on the purpose of judicial interviews: (i) to enable children to feel more involved and connected with proceedings in which important decisions are made in their lives; (ii) to give children an opportunity to satisfy themselves that the judge has understood their wishes and feelings; and (iii) to help children understand the nature of the judge’s task and the court process.

Child Parenting Time Lawyers

As such, your child’s wishes may be a very important factor in the court’s determination of their best interests. There are special processes in the legal system to obtain your child’s opinion with the least amount of influence from either parent and the most evidentiary value. Contact an experienced lawyer at MacLean Law today at any of our 7 offices across BC and in Alberta for help navigating these processes, and for more information about how your child’s opinion may impact any parenting issues coming out of your separation.