Navigating Child Participation in Family Law: Views and Preferences

By Ashley Hizo

The average child can speak their first word at around 2 years old, and will usually speak in full sentences by age 4, but at what age can a child voice their views and preferences in a family law case? Like most questions in family law, the answer depends on the particular facts of any given case. While the views and preferences of a child are a relevant consideration, there is no golden age in which a child’s views will be determinative.

The paramount consideration in any child related dispute is the best interests of the child. The Children’s Law Reform Act (CLRA) states that the court shall consider all factors of the child’s needs and circumstances in making such determination, including,

1. the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
2. The nature and strength of the child’s relationship with each parent, each of the child’s siblings; and grandparents and any other person who plays an important role in the child’s life;
3. Each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;
4. The history of care of the child
5. The child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
6. The child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
7. Any plans for the child’s care;
8. The ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
9. The ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;
10. Any family violence and its impact on, among other things,
    1. The ability and willingness of any person who engaged in the family violence ot care for and meet the needs of the child, and
    2. The appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child; and
11. Any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child. ^[1]

As can be seen from the list above, the views and preferences of a child are but one consideration among several. While certainly an important factor that the Court is required to acknowledge, views and preferences are neither determinative nor, binding.

The determination of the weight given to the views and preferences of a child is a subjective assessment to be based on the evidence presented at Court. The most common way that the evidence of a child’s views and preferences is brought into Court is through a Voice of the Child Report (VOCR). A VOCR is a short report for the Court that is written by a clinician from the Office of the Children’s Lawyer. Factors such as the child’s age, maturity, consistency and motivation are used in making such assessment. Ultimately, the degree to which the court will follow the wishes of the child will depend upon the age and level of maturity of the child and will be subject to the discretion of the Court.

For any inquiries or legal assistance regarding a child’s views and preferences or other family law related matter, we encourage you to reach out to one of our experienced family law lawyers at SorbaraLAW.