Our top Voice of The Child Parenting Time Lawyers explain the current state of the law on the issue. Both Provincial and Federal Legislation like the BC Family Law Act, Alberta’s Family Law Act and The federal Divorce Act all say the wishes of a child are an important factor. So at what age and with what force do a child’s wishes impact child parenting time? Peter Graburn senior family lawyer at MacLean Law guides you in this article.
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Hearing the “Voice of the Child” is becoming more common in Canadian family law matters. As recently as 2017, the Ontario Court of Appeal (see: GR. v. GK., 2017 ONCA 108 at para. 67) stated:
“This appeal demonstrates the importance of the emerging movement to incorporate the voice of the child in all matters concerning minors.”
In BC the views of a child may carry more weight as the child gets older. In order for a custody order relating to a teenager to be practical, it must reasonably conform to the wishes of the child (O’Connell v. McIndoe, 1998 CanLII 5835 (BC CA), leave to appeal refused  S.C.C.A. No. 576 (QL))
MacLean Law’s Voice of The Child Parenting Time Lawyers have a history of success on both sides of Voice of The Child Parenting Time disputes. We handle parental alienation cases as well as parental estrangement cases.
New Divorce Act Emphasizes Wishes and Voice of The Child
Recent changes to the federal Divorce Act have emphasized the shift from a parent-focused to a child-focused approach in parenting matters. The government prepared a paper for Voice of The Child Parenting Time Lawyers In Alberta, whether under s.16(3)(e) of the Divorce Act or s. 18(2)(b)(iv) of the Family Law Act, one of the factors in determining the best interests of the child is to obtain the child’s wishes and preferences, as they can reasonably be ascertained. But at what age can a child’s “voice” (ie. their “wishes and preferences”) really expect to and separating parents.be heard (ie. accepted) by the Court?
“Voice of the Child”
Hearing from the child as to their wishes and preferences in family law matters becomes more important the older the child. The United Nations Convention on the Rights of the Child (ratified by Canada in 1991) confirms the right of the child to many protections, including the right to be heard in legal matters involving them. But perhaps more importantly, research suggests that the child’s inclusion in the decision-making process is important for their long-term well-being and gives them some sense of control over their lives at a time of stress and turmoil in their lives; the child may also have some important insights to offer to the problems at hand from a unique child’s (ie. “child focussed”) perspective (see: Bala and Birnbaum, “Rethinking the Role of Lawyers for Children: Child Representation in Canadian Family Relationship Cases” ((2018) Les Cahiers de Droit, Vol. 59, Issue 4, December 2018, 787- 829). So it’s not just what the child wants, but why?
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In Alberta, the Court of Appeal has been clear not only as to the importance of hearing the voice of the child, but also the age at which that voice takes on significant weight. The law in this regard was neatly summarized by the Alberta Court of Queen’s Bench in AB v SN (2020 ABQB 706) where Justice M.J. Lema states (para. 107 – 110) (all original emphasis):
“Many courts have explored the impact of a child’s reside-with-which-parent preference and the child’s age and other characteristics as factors in gauging how much weight to place on it.
I am not satisfied that the trial judge was wrong in refusing to interview the two older children, [15 and 13 years old, respectively]. … While the court will ordinarily take the wishes of the child into consideration where “the infant is of an age to exercise a choice” (21 Halsbury’s Laws of England …), there has never been an inflexible rule in Alberta as to the age at which an infant can exercise a choice.
This is a field in which a considerable degree of latitude in the nature of a discretion must be allowed the trial judge. …
… the chambers judge did not afford disproportionate weight to the views of the children. He determined that these children (ages 8, 10 and 12) were quite capable of giving a clear-eyed accounting of what they needed. These children were adamant, individually and collectively, that they needed to have as much contact as possible with each parent. …
Given the categorical nature of the children’s opinions [all favouring shared parenting i.e. not moving away with their mother], it was not wrong for the chambers judge to seriously consider what he learned. … The judge in this case properly exercised his discretion and fully canvassed all relevant factors in the contextual manner required. As children age toward adolescence, generally their wishes become more important. Their ties to schools, the community, extended families and peers also become more significant.
In SK v AK, the Court of Appeal accorded “some weight” to a 13-year-old’s wishes:
… I may add that the child herself, who, as I said, is almost 13 years of age, has indicated, formally that she wishes to stay in Alberta with her father. That may not be a conclusive consideration in an application of this type [custody dispute between parents], however, we are aware of it and give it some weight. …”
Furthermore, in her footnotes, Justice Lema referred to the relatively recent decision in Thompson v. Thompson (2017 ABCA 299), a Hague Convention case, where the Court of Appeal held (at para. 17):
“… At a certain age, the need for expert evidence to determine a child’s level of maturity diminishes or is eliminated entirely. Absent evidence to the contrary, it is reasonable to assume that a child of fourteen is sufficiently mature to express a view as to why he objects to being returned. While that view is not determinative of the outcome, it is a relevant and important consideration ….”
BC and Alberta Child Parenting Time Lawyers
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Fraser MacLean, of our downtown Vancouver office handles Voice of The Child Parenting Time disputes across BC and notes a past case our office did that went to the Supreme Court of Canada: The wishes of a child may carry more weight as the child gets older. In order for a custody or child parenting time order relating to a teenager to be practical, it must reasonably conform to the wishes of the child (O’Connell v. McIndoe, 1998 CanLII 5835 (BC CA), leave to appeal refused  S.C.C.A. No. 576 (QL)).
Fraser points out that in BC while a child’s wishes are important they are not absolute and the court is not bound by the child’s preference to live with one parent when the best interests of the child appear to lie in granting custody to the other parent. Alienation of a child is not in and of itself a reason for the judge to decline to hear evidence of a child’s wishes, though it may be a reason to discount the child’s stated views in coming to a decision.
As Peter Graburn notes, more simply, in Raugust v. Raugust (2018 ABCA 30), the Court of Appeal upheld the decision to allow a 14-year old girl to choose how much time she would spend with her father, noting (in a similar phrase we hear quite often in this situation) the girl could “lace up her sneakers” and go see her father whenever she chose to do so.
Recently, on Application, the Alberta Court of Queen’s Bench held:
“In making my decision, I am required to consider the best interest of [the child]. She has a right to be heard in these proceedings – or to be listened to when she has put forward counsel and materials. She is 14 years old, and her wishes and preferences, although they are not determinative of the issue before me, they do carry an influence or inform my decision. Absent evidence to the contrary that she is immature or doing something contrary to her best interests, it is a factor that I consider…”
Accordingly, the law in Alberta and BC appears relatively clear – a 13 -14-year-old child’s “wishes and preferences”, while not determinative (‘a voice, but not a choice’), is a factor the Court will take into consideration in determining what is in the “best interests of the child”, particularly where those “wishes and preferences” are well thought out and important to getting the child “where she wants to be”.
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