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Upon separation, a lot of parents are curious about how much input or control their child has over issues of custody and access. The answer? It depends.

In Ontario, judges decide questions of custody and access based upon the child’s best interests. In order to determine what is in a child’s best interests, judges are required to take into account the views and preferences of children, if they can be reasonably ascertained.

However, this is not the same as giving a child control over with whom he or she will reside. Rather, how much weight is given to a child’s views and preferences will depend a lot on the child’s age, intelligence and maturity level. A 14-year-old child’s views, for example, are likely to be given more weight than those of an 8-year-old child. Similarly, if a child has a cognitive impairment or behavioural issues, these may lessen the impact of his or her wishes on the final determination of custody and access.

Another important factor in determining how much weight to give to a child’s preferences is whether, and to what extent, these preferences have been influenced by one parent’s control or manipulation. For instance, in extreme cases a child may refuse all contact with one parent solely because of the negative influence of the other parent, and not for valid reasons or because of the child’s true feelings toward the alienated parent. In such cases, the child’s stated preferences will be given very little weight by a judge in deciding issues of custody and access.

How do judges find out what a child’s views and preferences are? Oftentimes, each parent will come to court arguing that the child has expressed very different, or even opposing, views. The judge has several options for obtaining more neutral evidence.

An older child, being a teenager, may be able to testify in court in order to give her or his views directly to the judge. However, testifying can be extremely stressful for a child, so judges generally prefer less direct methods of ascertaining children’s wishes.

One option is to have a custody and access assessment performed by a qualified professional, such as a lawyer, social worker, or psychologist. This individual meets with the child, the parents, and other individuals involved in the child’s life in order to make recommendations regarding an appropriate custody and access arrangement. Part of the report would include a discussion on the child’s stated views and preferences.

Full custody and access assessments can be quite expensive and may not always be necessary. Some individuals opt for a simple “Voice of the Child Report”, which is a simpler custody and access assessment in which the professional writing the report focuses more on his or her interview(s) with the child and what the child has to say about his or her wishes.

Another option is for a judge to request the involvement of the Office of the Children’s Lawyer, a government body under the Ministry of the Attorney General. The Children’s Lawyer may provide a lawyer to represent the child and/or a clinician, who will write a custody and access report for the court. 

If you have any further questions about custody and access, feel free to contact our Family Law Group.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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