Article written by Rosemary Bocska
If you and your Ex are divorcing, your focus will naturally be on your own decisions and legal rights. This may include:
- Where you will live next;
- What you own, and how it will be split with your Ex;
- How much your Ex might owe you in support; and
- How you will move on, after it’s all said and done
These are all important questions and issues stemming from the various rights and obligations you have, in the divorce process. But what about your child? What are their rights, during and after your divorce? Do they get a say about what’s best for them?
A Child's Right to Choose where they Live:
A common question when considering a child's rights during divorce is whether the child gets to choose which parent they want to live with. Put simply, they may not get to choose – but they can definitely provide input to the deciding court. The extent to which your child’s views will be heeded, however, will depend on several factors.
Canadian law does not give children under the age of majority (age 18) the right to affirmatively decide which parent they want to live with. Instead, the Family court’s decision is guided by the recently-revised federal Divorce Act. It contains detailed provisions guiding courts on how to approach the question of where a child will live. One of the factors the court must consider – amongst a very long list – is your child’s wishes and preferences.
It is important to note that there is no specific age a child must be before they are entitled to decide which parent they want to live with. Each situation is unique and therefore approached as such. That being said, the court will always keep the child's best interests at the forefront of their decision. This means that, while the child's preference are considered, they still may not get exactly what they want.
Child's Rights & The Weight of their Wishes:
Even though a court is mandated to take into account your child's wishes and preferences, not everything is considered equal. The weight and importance the court gives your child's wishes depend on several things. Mainly, your child's age and maturity.
The closer your child is to the age of majority, the more likely a court will take their preferences into account. Therefore, the court is more likely to consider and heed the preferences of a mature teenager compared to a 5-year-old.
Despite still being below the age of majority, if your child is only 16, the court is still likely to allow them to live with the parent they prefer. It is rare for a court to make an order that goes against a mature teen's wishes, given the practical difficulties of forcing an unwilling near-adult to comply.
Your Child’s Rights to Be Heard, by the Court:
As mentioned, the court can receive your child’s input when deciding what is in their best interests. This applies not merely to where your child lives, but also to issues of parenting time and decision-making responsibility.
So how are your child’s wishes and preferences actually conveyed and communicated to the court?
The court can choose from several options. This might include ordering the involvement of a third party, such as the Office of the Children's Lawyer or an assessor. The court may also make an Order that defines the specific issues that are to be explored.
The key methods for your child to give their input to the court are the following:
- Being interviewed by the presiding judge directly;
- Providing their input through the Office of the Children’s Lawyer which will arrange to have an assessment prepared;
- Being interviewed by a neutral third party (i.e., a social worker, or clinical counsellor) to create a Voice of the Child report (for children over the age of 7); and
- Giving input to a mental health professional to create a Parenting Plan assessment.
Most of these court-ordered steps can be done either before, or during your divorce proceedings. You and your Ex can also choose to hire a private assessor before you go to court. The private assessor will speak with your child and report on their preferences.
Regardless of the path chosen, in the end the court will receive evidence or a report that summarizes the statements your child has given about their views. The court will then consider the information when making any ruling that affects your child.
A Child’s Right to Support:
One final and important point relates to child support. It’s a little-known principle that child support is a right that belongs to the child – not to the parent. This was confirmed by the Supreme Court of Canada in a recent case called Michel v Graydon, 2020 SCC 24. The case set out some other key principles for divorce courts to keep in mind:
- Your child’s right to support survives the breakdown of the relationship between you and your Ex;
- Neither of you can purport to bargain that right away;
- To the extent possible, child support should provide your child with the same standard of living that they enjoyed when you and your Ex were together; and
- The amount will vary based on the income of whichever of you is the paying parent (and other factors). It is not confined to furnishing your child with the “necessities of life."
What these principles collectively emphasize, is that your child’s entitlement to support is separate from any obligations you and your Ex have towards each other. It is essentially a standalone right your child possesses.
Practically speaking, it’s true that for any child under the age of 18, the parent with whom that child primarily lives will be the one who must take legal steps to get a court order for child support, and to have it enforced. A young child will obviously be unable to take these steps themselves.
For an older child – especially one living away from home – it’s not unheard of for a court to order that the paying parent submits the child support directly (rather than to the other parent).
Letting Your Child Be Heard:
So far, we’ve talked about the more formal ways a court can hear your child’s wishes and preferences. But you and your Ex can help ensure your child's rights too. First, check in with your child. What is it exactly they want? Now do your best to cooperate with your Ex to include your child's wishes and preferences into a mutual divorce strategy that accommodates their best interests.
Here are some tips:
- Avoid asking your child directly who they want to live with. This puts your child in the middle of the conflict between you and your Ex.
- Don’t force or pressure your child to take sides. Your child will already feel conflicted about your divorce and this will only make things worse.
- Give your child the opportunity to voice their views on matters that affect them. Do this by sitting down with your Ex and your child in a non-confrontational setting and breaching these topics.
- Consider using a mediator, or other neutral third-party assessor, who can help your child get his or her views heard.
Children are resilient and will survive your divorce. But they still have their own rights. Make sure you know these rights and do your best to support your child during such a difficult time.