If you are currently experiencing a separation or divorce from your spouse, chances are you have heard a lot of contradictory information from friends and acquaintances on everything from division of assets to parenting time and responsibility. When it comes to children, one area that seems to cause confusion is the legal age at which children can choose which parent they will live with. We have had clients tell us that they have been informed that children as young as 10 years old can make this decision or that once a child is mature enough to make this choice on their own, usually between 14 to 16 years of age, they can. Many parents are surprised to learn that under Ontario family law, none of these are true.
When can my child decide who they want to live with?
In most cases in Ontario, a child cannot choose which parent they will live with. However, as a child approaches the age of majority, which in Ontario is 18 years old, they have greater influence over where and with whom they reside. Legally in Ontario, only after a child reaches the age of 18 are they free to choose where they would like to live. It is also uncommon for a court to issue an order regarding decision-making responsibility and parenting time for a child who is 16 or older. Decision-making responsibility and parenting time were previously known as custody and access.
There are however situations where a child may have extremely strong feelings about who they want to live with. In this case, discussing your child’s options with them if they are older and emotionally mature enough to openly express their opinions and wants is encouraged. However, trying to sway a child’s opinion on which parent they should live with is never a good idea. If the decision on parenting arrangements ends up in court, a judge will make their decisions concerning decision-making responsibilities and parenting time based on the best interest of the child. The courts will take into consideration a child’s requests and depending on the child’s ability to express their feelings, their level of maturity and the rationale for their request, the judge will decide how strongly they will consider the child’s preferences in their decision for parenting arrangements.
Best interest of the child
Although age of majority is the set age at which a child may decide on their own whom they will live with, the courts may take into consideration a child’s requests, wants, and preferences at various ages and stages in their lives. For children over the age of 7, this information can be obtained in a variety of ways. A judge can request that the Office of the Children’s Lawyer produce a custody and access evaluation, speak directly with the child on their own, or have the child meet with a lawyer or social worker who will prepare a Voice of the Child Report. The judge will then apply this information to the best interests of the child test, which is established in the Children’s Law Reform Act.
Parental influence
Children frequently find themselves trapped in the middle of their parent’s divorce, especially if each parent is trying to have sole decision-making responsibility. In these cases, one parent may make attempts to sway a child’s perception of the other parent in order to get their child on their side. Ontario’s laws do their best to keep children from being unduly influenced.
It is critical to recognize that a kid’s desire is not the sole factor in determining where a child will reside. A judge will also consider the stability of each parent’s home, who the children have lived with during the separation, and the parents’ willingness to act in their child’s best interests.
Without going to court, you and your spouse can try to reach an agreement on decision-making responsibility, parenting time, and parenting arrangements. You can communicate with your spouse on your own, with the assistance of someone you both trust, or with the assistance of a lawyer or mediator. A parenting plan checklist might assist you with the items you may need to consider, just keep in mind that not every item on the checklist may be applicable to your scenario.
You may create a parenting plan with your ex-spouse if you both agree on matters concerning your children. A parenting plan might be an informal agreement between the two of you or it can be part of your separation agreement. To be legally binding and enforceable, your parenting plan or separation agreement must follow specific requirements. This implies that your agreement is written in such a manner that the court can force you or your partner to do what the agreement says if one of you breaks it. It is always suggested that in these cases you have any parenting plans or agreements reviewed by a lawyer.
Get help from a family law professional
If you are going through a divorce or separation, consult with a family law professional for assistance in negotiating the best possible living and custody arrangements for your children.
A family law professional may also be able to assist you in resolving any issues and come to an agreement with your ex-partner without going to court as they have been trained to assist you in reaching an agreement or making a decision through alternative dispute resolution processes. These processes may include negotiation, mediation, arbitration, mediation-arbitration, or collaborative family law. The optimal procedure for you is determined by the circumstances of your situation and what you desire. A mediator, for example, does not make decisions for you, but an arbitrator does. Your separation agreement may even require that you first use a process like mediation to resolve your difficulties before proceeding to court.
A lawyer that specializes in family law can assist you during this difficult time by helping you navigate the complexities of the law and procedures that await. There is no one-size-fits-all method for calculating how much weight a court will put on a child’s opinions and preferences. Similarly, there is no one, perfect manner to present these requests and preferences.
At Sage Law Group we offer comprehensive family law services in Barrie and South Eastern Ontario, our team will assist you in formulating a plan which will allow your child to have their opinion and preferences heard in your family law proceeding. Please give us a call today 705-735-0003 and let us help you.
