B.C. family lawyers are frequently asked if a child can decide which parent they live with and at what age a child can make that decision. The answer to this question is linked to the distinction between the child’s wishes and the hild’s best interests. Here is an overview of the provisions in the B.C. Family Law Act for considering the preferences of the child in postseparation parenting arrangements.
The best interests of the child prevail
According to Section 37 of the Family Law Act, the best interests of the child is the only consideration for any matters involving care and time with children. The child does not have sole decision-making authority on this issue.
The law says that all the child's needs and circumstances must be considered, including the child's views unless it would be inappropriate to consider them. In other words, a child's views can be considered, but they are not the sole deciding factor.
This approach ensures the child is not influenced, bribed, threatened or pressured to make the decision about the time they spend with each parent. In one case Ms. Little was involved in the Views of the Child report writer etermined that the child had been falsely led to believe by their access parent that the access parent would be put in jail unless the child told the report writer that they wanted to live half time with each parent.
When is it appropriate to consider the views of the child?
The decision of which parent the child will live with after separation or divorce must be made by the child's parents or by the courts if the parents cannot agree. A child's views can be onsidered in some situations but will not be eterminative of the issue.
The age and emotional maturity of the child are key factors in determining whether it is appropriate to consider their views about whom they want to live with and the weight the court affords to their wishes. The legislation does not set out any specific age at which a child's views may be considered. The outcome of each case depends on the unique facts.
In B.C., it is generally not appropriate for the courts to receive the views of young children under the age of 12. Young children are often impressionable and subject to being unduly influenced by their parents. As the child grows older and matures, the more sway that child has about where and with whom they want to live provided this is an informed decision and is in their best interests.
The judge considers many factors, including the child's intelligence, maturity, reasons for the request, the history of parenting time experienced by the child and the child's health and emotional well-being. Section 37 of the Family Law Act sets out 10 factors for the court to consider in determining the best interests of the child:
The child’s health and emotional well-being.
The child’s views, unless it would be inappropriate to consider them.
The nature and strength of the relationships between the child and significant persons in the child’s life.
The history of the child’s care.
The child’s need for stability given the child’s age and stage of development.
The ability of each person who is a guardian and seeks guardianship of the child or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities.
The impact of any family violence on the child’s safety, security or well-being and whether the family violence is directed toward the child or another family member.
Whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child or meet the child’s needs.
The appropriateness of an arrangement that would require the child’s guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risk to the safety, security or well-being of the child or other family members.
Any civil or criminal proceedings relevant to the child’s safety, security or well-being.
How are the child's views introduced into evidence?
Parents should try to avoid putting their child in the middle of the fight and should not ask them to pick a caregiver or choose sides. Children can feel enormous pressure and may try to avoid disappointing anyone by telling each parent what they think that adult wants to hear. If the guardians cannot agree on parenting arrangements, it may be necessary for the child to express their views to a neutral party, such as a counsellor, social worker or psychologist, with the knowledge and consent of their guardians.
The impartial third party will convey the child's views in a written report sent to the judge and the parents or their lawyers. The judge will assess the child's age and maturity and decide if it is appropriate to consider the child's views as a factor in the overall determination of the child's best interests. These third-party consultations come in two forms:
The first option is for the parties to agree or for the court to order a Voice or Views of the Child Report under Section 211 of the Family Law Act. The neutral third party could be a family lawyer or a child psychologist. These reports are less expensive than the full Section 211 Report. The cost of the report will depend on how many children are to be interviewed. Usually these Views of the Child Reports can be completed quickly. Their focus is narrow: to elicit the child's preferences. Sometimes but not always the authors of these reports also interview each parent.
A second option is to have the child interviewed by a child psychologist or family justice counsellor in the context of a full Section 211 Report. The parents and step-parents are also interviewed. The parents undergo psychological esting. Typically, the author of the report also attends at each parent’s home and observes the interaction of the child and parent in their familiar home environments. Collateral supporting witnesses are also contacted. This is a more comprehensive and time-consuming exercise. There are often considerable wait times before the report can even be started. These reports are more expensive than a Views of the Child Report and can cost up to $30,000.00 if authored by a child psychologist in our recent experience.
Get fair, knowledgeable legal advice from a dedicated family lawyer
Has a dispute arisen regarding parenting time with your children? Valerie M. Little has a law practice devoted exclusively to family law. During her 30+ year career, she has assisted many families in Burnaby, Coquitlam, Port Coquitlam, Port Moody, New Westminster and throughout the Lower Mainland to resolve their parenting disputes. To obtain individual specialized advice tailored to your unique family law situation, contact Ms. Little’s office to book your phone or in office consultation: email her office or call 604-526-3333 today.