Can Children Decide Where They Want to Live After Divorce?

When dealing with a separation involving children, arranging a parenting schedule can be one of the more challenging issues to resolve. This can be further complicated when a child has a strong opinion as to where they want to live.

It is a common misconception that after a certain age, a child has the right to choose where they live. While generally after the age of 18, a parenting schedule can become nearly impossible to enforce, the legislation does not indicate a specific age when this decision becomes that of the child. Rather, the Court is guided by an assessment of the children’s needs and circumstance to determine what schedule is in the child’s best interest. This is based on a list of several factors, including a consideration of “the child’s views and preferences giving due weight to the child’s age and maturity." In using this language, the law recognizes the age alone of a child is not necessarily an indicator of the independence or strength of a child’s statement, nor their maturity level.

How Are a Child's Preferences Assessed?

Identifying a child’s views and preferences typically involves using a third party to speak to the child directly. This allows them to gain an understanding of the child's position, and what is driving it. The third party could be someone hired privately to prepare a Voice of the Child Report, such as a social worker. It might also be someone appointed through the court from the Office of the Children’s Lawyer. In other cases, full assessments may be conducted under Section 30 of the Children’s Law Reform Act. During these assessments, a clinician will interview not only the child and the parents, but also key people in the child’s life—such as teachers, doctors, and family members—and observe shadow visits with the child and each parent.

Key Factors in Determining a Child's Best Interests 

It's important to understand that if a child resists spending time with one parent, that alone does not mean the parent will be denied a relationship with the child. These reports are not automatically accepted by the Court. They are carefully reviewed, and in some cases, the author may be cross-examined on their methods and recommendations.  The Court has discretion in deciding how much weight to give the report and will take a holistic approach when determining what arrangement is in the child’s best interests, considering all relevant factors. Section 24 of the Children’s Law Reform Act and Section 16(2) of the Divorce Act outline these factors, as listed below:

• The child’s needs based on their age and stage of development, including their need for stability;
• The nature and strength of the child’s relationship with each parent, siblings, grandparents and any other person who plays an important role in the child’s life;
• Each parent’s willingness to support the child’s relationship with the other parent;
• The history of care of the child;
• The child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
• The child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
• Any plans for the child’s care;
• Each person’s ability and willingness to meet the child’s needs;
• Each person’s ability and willingness to communicate and cooperate, especially with each other, on matters affecting the child;
• Any family violence and its impact on,
  • The ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child; and
  • Whether it’s appropriate to require cooperation between the parties in light of the violence.
• Any ongoing or past legal proceedings, court orders, or conditions that affect the child’s safety and well-being;
• The relationship by blood or through an adoption order between the child and each person who is a party to the application.

When a Child Refuses Parenting Time

Even in instances where a child resists or outright refuses to spend time with one parent—and there are no obvious reasons for the resistance (such as documented abuse)—the Court will typically explore therapeutic interventions, including reunification or family therapy.  There is a general understanding and belief that children benefit from a strong relationship with both parents, and the Court is not quick to completely exclude or limit a parent’s involvement without pursing all available avenues.

In fact, in some very rare and extreme cases where parental alienation has been determined, a Court might order a complete reversal of parenting where the children are subjected to a 90-day no contact period with the alienating parent to allow for the child to rebuild the relationship with the alienated parent.  

That being said, there is a general understanding —even without specific legislation— that these measures and schedules become difficult to impose after the age of 16. Pursuing enforcement at this stage can be extremely costly and may result in limited practical outcomes.

Finding a Practical Path Forward

It’s important to recognize that the law does not always offer a perfect solution in these situations. In some cases, the best course of action may be to respect the child’s wishes and focus on rebuilding the relationship over time, rather than trying to force it. Consulting with parenting professionals is always recommended to help develop age-appropriate plans that support both the child and the family.