Does my child get a say in a parenting case in Ontario?

Yes, but the child does not decide. Ontario courts must consider a child's views and preferences, giving them due weight according to the child's age and maturity. The views can reach the court through the parents' evidence, a judge's interview with the child, a professional assessment, or the Office of the Children's Lawyer, which can provide a lawyer, a clinician or both.

How a child's voice is heard in an Ontario parenting case

Parents often ask whether their child can "choose" where to live. The honest answer is that the law gives children a voice, not a vote. The Children's Law Reform Act lists "the child's views and preferences, giving due weight to the child's age and maturity, unless they cannot be ascertained" as one of the best interests factors (s. 24(3)(e)). It also says that, where possible, a court shall take into consideration the child's views and preferences to the extent the child is able to express them (s. 64(1)). For an overview of parenting matters, see our custody and access (parenting) page.

There are several routes by which a child's views reach the court:

1. Through the parents. Each parent can describe what the child has said, but this evidence is often treated cautiously because it comes second-hand and in the middle of a dispute.
2. A judge's interview. The court may interview the child to determine their views and preferences. The interview must be recorded, and the child is entitled to have their counsel, if any, present (s. 64(2) to (4)).
3. A court-appointed assessment. The court may appoint a person with technical or professional skill to assess and report on the child's needs and the parties' ability and willingness to meet them (s. 30).
4. The Office of the Children's Lawyer (OCL). When a court asks the OCL to help, it may provide a lawyer to represent the child, a clinician (generally a social worker) to meet with the family and write a report, or both, according to the Ontario government's OCL page.
5. The court decides. Whatever route is used, the court decides what is in the child's best interests, weighing the child's views with all the other factors; see how courts decide a child's best interests.

The Office of the Children's Lawyer at a glance

Court-ordered assessments under section 30

An assessment is a different tool from the Office of the Children's Lawyer. Under section 30, the court may appoint a person with technical or professional skill, such as a psychologist or social worker, to assess and report on the child's needs and on the ability and willingness of the parties to meet them. The order can be made before or at the hearing, whether or not a party asks for it (s. 30(2)). The court appoints a person the parties agree on if possible, and otherwise chooses one (s. 30(3)).

The court can require the parties, the child and others to attend the assessment, and if someone refuses, it may draw inferences about their ability and willingness to meet the child's needs (s. 30(5) and (6)). The report is filed with the court, copies go to the parties and the child's lawyer, and the assessor can be called as a witness (s. 30(7) to (10)). Unlike OCL services, the parties pay the assessor's fees in proportions the court sets, though a party can be relieved where payment would cause serious financial hardship (s. 30(12) to (14)). Parties remain free to submit other expert evidence (s. 30(15)).

An assessment can help the court with high-stakes decisions for the child, such as a proposed move or international travel; see travelling with your child after separation.

How much weight a child's views carry

The Act does not set an age at which a child's preference becomes decisive. It asks the court to give the views due weight for the child's age and maturity. In practice, a thoughtful, consistent preference from a mature teenager is likely to carry far more weight than a young child's wish to stay with the parent who has fewer rules. Evidence about whether a view is truly the child's own, rather than the product of pressure, can affect its weight, and the view is always set alongside the other factors such as stability, the history of care, and safety.

Older teenagers have a practical reality of their own. The Act says nothing in its parenting part abrogates the right of a child of sixteen or more years of age to withdraw from parental control (s. 65). For older teenagers, a workable arrangement usually needs to take their views seriously.

What changes the answer

• Age and maturity (s. 24(3)(e)). The weight given to views rises with age and maturity.
• Whether the views can be ascertained. Very young children may not be able to express views in a way the court can rely on.
• Consistency and independence. Views expressed consistently over time, to neutral professionals, tend to carry more weight than views reported by one parent.
• Safety. The primary consideration remains the child's physical, emotional and psychological safety, security and well-being (s. 24(2)).
• The type of decision. A child's views on a move, a school or a schedule can matter more than on, for example, medical decisions that require professional input; see moving with a child.
• Contact with others. A child's relationships with grandparents and others are part of the picture; see grandparents and contact.

A worked example

For example, imagine Toronto parents in a dispute over parenting time for their 13-year-old and 6-year-old. The 13-year-old has told both parents and a school counsellor that they want to spend more time with one parent, whose home is close to their school and friends. The parents cannot agree, and one asks the court to request the involvement of the Office of the Children's Lawyer.

If the OCL accepts the case and assigns a lawyer with a clinician, the clinician might meet the children and parents and observe each household, then prepare a report with recommendations. The OCL lawyer would generally take a position consistent with the 13-year-old's views and preferences. The 6-year-old's views might be harder to ascertain. The judge would then weigh the older child's mature, consistent preference alongside the younger child's need for stability and the importance of keeping the siblings' schedules workable. This example is hypothetical.

Common mistakes about a child's views

• Asking the child to choose. Putting a child in the middle harms the child and tends to undermine the parent who does it. Willingness to support the child's relationship with the other parent is itself a factor (s. 24(3)(c)).
• Coaching or recording the child. Courts are alert to influenced views, and secretly recorded conversations with a child are rarely helpful.
• Assuming a fixed "choice age". There is none in the Act.
• Waiting until trial to raise the child's views. Requests for OCL involvement or an assessment take time; raise them early.
• Ignoring the order because the child refuses. Parents are expected to support compliance with the order; see when a parenting order is not followed.
• Treating a report as final. A clinician's recommendations are evidence; the court still decides.

What to do this week

1. Write down, without prompting the child, any views they have expressed, with dates and context.
2. Note which neutral adults (teachers, counsellors, coaches) know the child well.
3. Consider whether a request for Office of the Children's Lawyer involvement or an assessment makes sense in your case.
4. Keep the child out of adult discussions about the case.
5. Review your parenting plan proposal against the child's age, school and activities; see decision-making and parenting time.
6. Book a free consultation with us to decide how your child's voice can be heard appropriately.

Frequently asked questions

Will my child have to testify?

Children rarely give evidence in family court the way adults do. Their views usually reach the court through an OCL lawyer or clinician, an assessment, or a judge's interview, which must be recorded (s. 64).

Can I hire the Office of the Children's Lawyer myself?

No. The Ontario government's page explains that the OCL provides services when courts ask it to help in parenting cases, and it does not get involved before cases go to court except in limited situations.

Does the OCL decide the case?

No. The OCL states that it does not decide what is in a child's best interests. A clinician can make recommendations; the court decides.

Where would the case be heard in Toronto?

Parenting cases can be heard in the Ontario Court of Justice or, with a divorce, in the Superior Court of Justice; see the Superior Court of Justice family court in Toronto. The OCL's own office is in Toronto, at 393 University Avenue.

What if my teenager refuses to go to the other parent's home?

The court can take the teenager's views into account in deciding or varying the order, but until the order changes, parents should support compliance and seek advice promptly; see the Ontario Court of Justice family courts in Toronto for where variation cases are usually heard.

Can a child have their own lawyer?

The OCL can provide a lawyer to represent the child where the court asks it to help, and the child is entitled to have counsel present during a judge's interview (s. 64(4)).

Who pays for an assessment?

The court must require the parties to pay the assessor's fees and expenses and set each party's share, but it can relieve a party who would suffer serious financial hardship (s. 30(12) to (14)).

Sources

• Children's Law Reform Act, R.S.O. 1990, c. C.12 (ss. 24, 30, 64, 65)
• Government of Ontario, Office of the Children's Lawyer
• Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) (s. 16(3)(e))