Can My Child Choose Where To Live?

A question that often comes up in initial consultations or meetings with clients is when or if a child can choose who they live with and/or whether they can decide to go for parenting time with one parent or another.

The short answer to these questions, is “no”, a child does not have a right to decide where they live or whether they see a parent. There is a misconception that once a child reaches the age of 12, they get to choose who they live with.

I believe this misconception comes from the provision in the Child and Family Services Act that states any child over the age of 12 is to entitled to be advised of any proceedings that affect them and the possible implications of the same, and that the child shall be given the opportunity to make their views and preferences known to the Judge.

In a CFS proceeding, this is usually done by having a lawyer appointed for the child, who has discussions with them outside of Court and presents their views and preferences to the Court on behalf of the child. The child does have the right to attend to court and speak to a Judge directly, but most children choose to speak with a lawyer who will take instructions on their behalf.

However, these provisions do not apply to the Divorce Act of Canada or the Family Law Act of Manitoba.  Both acts state that when determining a parenting time order, the best interests of the child or children are the Court’s primary consideration. While each act does reference the views and preferences of the child as one factor to consider, that is all it is – just one factor for the Judge to consider.

In the majority of cases, it is going to be in the best interests of the child to have a relationship with both parents, despite how they may feel about each other. This, of course, is barring circumstances that would put the child in harm’s way if they had contact with a parent.

If the views of the child are an important factor that the Court needs to look at for a parenting time order, the Court will want to hear those views from a professional who also considers the circumstances of each parent and can ensure there is no coaching or alienation that is occurring. As such, the majority of cases will look at the views of a child through a Brief Consultation or Assessment report through Family Resolution Services or a private assessor.

It should also be kept in mind by parents in situations where a child may be expressing a desire not to see the other parent, that one factor the Courts also look at is the ability and willingness of each parent to facilitate a relationship with the other parent. This means if you are seen as causing issues to the prevent the other parent from having parenting time with the child, it could result in primary parenting time being awarded to the other parent.

For more information, or if you need legal advice, please contact our office at 204-726-1424.

- Written by Breena R. Murray