In Ontario, Can a Child Choose Which Parent to Live With After Their Separation or Divorce?

When parents separate or divorce, one of the most emotional and complicated issues to sort out is where the children will live. Understandably, many parents – and sometimes the children themselves – wonder: Can a child choose which parent they want to live with?

The answer is not a simple “Yes” or “No”. In Ontario, the child’s wishes are an important part of the decision, but they are only one factor among many that a court will consider.  Here are the important concepts to know.

How Parenting Arrangements Are Decided in Ontario

Under Canadian divorce law, what used to be called “custody” and “access” has changed. Now, the law talks about:

• Decision-making responsibility: who gets to make major decisions about the child’s life (like education, health care, and religion).
• Parenting time: when the child is in the care of each parent.

Parenting decisions, including where a child will live, are always made based on one guiding principle: the best interests of the child.

This principle is set out in the Ontario Children’s Law Reform Act (for cases under provincial Family law), and in the federal Divorce Act (if the parents are or were formally married, and are seeking a divorce). Both laws emphasize that the child’s physical, emotional, and psychological safety and well-being are the top priorities.

The Child’s Views and Preferences: Do They Matter?

Yes, the child’s wishes are absolutely part of the court’s decision-making on the child’s best interests — but they are not the only consideration.

Both the Children’s Law Reform Act and the Divorce Act specifically require the court to take into account the child’s views and preferences – but only to the extent that they can be reasonably ascertained.  This will also depend on the child’s maturity and age.

But assuming that the child is old enough to voice their preferences to live with one parent rather than the other, this will certainly be considered, but will not automatically dictate the court’s ruling on the point.  Instead, the court will still be guided by its assessment of all the circumstances, and by its conclusions on what will be in the child’s best interests.

What Factors Do the Courts Look At?

In determining which parent the child should live with after a separation or divorce, the court looks at the child’s wishes alongside many other factors such as:

• The child’s emotional ties to each parent and other family members,
• Each parent’s ability to meet the child’s needs,
• Stability and continuity in the child’s life,
• The history of the child’s care.

Courts will assess and balance these factors alongside the child’s own preferences, and then will come to a conclusion that it feels is in the child’s best interests.

How Old Does a Child Have to Be to Have a Say?

There’s no magic age at which a child’s opinion suddenly becomes more decisive (or at least, more persuasive).  Naturally, the older and more mature the child is, the more weight their views will typically carry in the court’s decision-making process.

As a general guideline:

• Very young children (say, under 7 or 8 years old) may not have strong, independent preferences, or may be seen as too young to make a meaningful choice.
• Older children (around 12 years and up) are more likely to have their views given significant weight by the deciding court, especially if they express them clearly and consistently.
• Teenagers (especially those 14 or older) often have very strong influence over the outcome. Even then, the court can readily override a teen’s own preferences, if it decides that the teen’s best interests would not be fostered.

To illustrate this last point:  Let’s say a 15-year-old tells the court that they want to live with a specific parent.  After a little digging, it turns out that it’s because the desired parent has no rules, and lets the child skip school.  Even though the child may have strong wishes in this direction, the court may not accommodate them. This is because the court’s job is to promote the child’s overall welfare and wellbeing, not just their immediate happiness.

How Does the Court Determine What the Child’s Preferences Are?

It’s important to know that children are not usually forced to testify in court about which parent they prefer to live with.  This can be stressful and emotionally harmful to the child, and can make them feel like they are “in the middle” of their parent’s legal dispute.  They may feel like they are being forced to definitively and permanently choose one parent over the other.

Instead, a child’s views are usually gathered through several methods:

• A “Voice of the Child” Report (prepared by a professional who interviews the child),
• An assessment by a social worker or psychologist,
• Evidence gathered by the Office of the Children’s Lawyer (which is an Ontario government department that can represent children’s interests in Family Law cases).

These professionals talk to the child in a safe, neutral way, and then formally report to the court on what the child’s preferences are.  Sometimes the Office of the Children’s Lawyer will step into the conflict between the parents, to make arguments on behalf of the child’s wishes, particularly in high-conflict cases.

Final Thoughts: Respecting Children, But Protecting Them Too

Children can often have a say in where live, but under Canadian law it’s not the only voice.  Instead, courts and other professionals focus on protecting a child from being forced to choose sides, or from feeling responsible for family decisions.  Parents should help with this goal, but encouraging honest, open communication with their children, no matter what level of conflict they may have between themselves.