Can My Child Just Tell The Judge Where They Want To Live?

It is the most common instruction a family lawyer hears. Just ask the kids. They know who they want to live with.

Ontario courts do listen to children. But a child’s wishes are one input, not the decision. The gap between those two things is where most parents get caught out.

How A Child’s Voice Gets Into The Case

The usual route is a short report prepared by a trained professional who meets the child and writes down what the child says. No opinion, no recommendation, no assessment of either parent. Just the child’s words. That is different from a full parenting assessment, which examines each parent’s ability to meet the child’s needs and ends in recommendations.

You do not need the other parent’s agreement. An Ontario court can order the report over an objection, using its power to appoint an expert on a question of fact.

You Do Not Get One Automatically

A judge decides whether the report is appropriate. Ontario courts weigh the child’s age and maturity, whether being interviewed might itself harm the child, how much the decision will affect the child, whether the child can speak without pressure, and whether the views are already available another way.

Requests get refused. In one Ontario case a father asked for a report and the court said no — not because the children were too young, but because the question before the court was whether the parents could still make decisions together. The children’s preferences did not answer that question.

The report has to be relevant to what the judge is actually deciding. That is the part most people miss.

There Is No Magic Age

The Children’s Lawyer generally prepares these reports for children over seven. Ontario judges typically follow guidelines suggesting eight and older for speaking with a child directly. Neither is a rule. Courts have ordered reports for six-year-olds, in one case reluctantly, letting the interviewer stop if the child proved too young to say anything useful.

Getting The Words In Front Of The Judge Is The Easy Part

The harder question is what the judge does with them. A child has a voice, not a choice.

Ontario’s Court of Appeal has set out what goes into the weighing. Whether both parents can provide adequate care. How clear and unambivalent the wishes are. How informed the child is. Age and maturity. How strongly the preference is held, and for how long. Whether it can practically be done. Whether a parent has influenced it.

The Court of Appeal has also explained why a young child’s preference carries less weight. It tends to shift, it is easier to influence, and it is not always good for the child. A child who wants to eat only candy is not describing a sound plan.

When A Parent Puts Words In A Child’s Mouth

This is where cases turn.

In one Ontario trial a professional interviewed two children from the same family. The teenager’s views were her own, and the court gave them considerable weight. Her younger brother was different. His answers did not sound rehearsed, the interviewer said, but they did not sound like his own thinking either. He had heard certain things repeated so often that he gave them back. His wishes got no weight at all. One report, two children, opposite results.

A suspicion of coaching does not stop a child being heard. Ontario courts are clear that a worry about influence goes to how carefully the words are weighed, not to whether the child speaks.

What This Means For You

If you want your child’s views before the court, the request has to connect to the issue the judge is deciding. And the more the preference sounds like something absorbed from you, the less it is worth.

The parent who coaches usually ends up worse off than the parent who says nothing.

This article is general information about Ontario Family Law procedure and is not legal advice. It does not describe any specific client’s matter. For advice on your own situation, speak with a lawyer or set up a consult with us today.