There is a common myth that children can “decide” at the age of 12 which parent they live with, but this is not the case. This myth may be a result of some Family Law legislation that requires the “consent” of a child who is 12 years or older, such as adoption proceedings. As between parents who have separated however, in Alberta, there is no specific age at which a child can legally decide which parent they want to live with.
Instead, the court looks at the child’s views and preferences as one factor in determining the child’s best interests under the Family Law Act and Divorce Act. The wishes of young children is not given much consideration, as they are still developing emotionally, cognitively and psychologically. They are not old enough to understand the ramifications of decisions they make.
Once children get into their teens, their preference may be given more consideration, depending on the reasons for their choice, but the Court still has the final say, and may determine that the child’s choice is not in their best interests.
How does the child’s viewpoint get communicated to the court?
If there is high conflict between the parents, getting an objective voice to provide the court with the child’s views and preferences (as opposed to the conflicting information from each parent regarding what the child “wants”) can be obtained in various ways:
Appointment of a lawyer for the child:
The Court can order that an independent lawyer be appointed for the child. The lawyer must have special training to take on this role. It involves meeting with the child and getting a “picture” of the child’s life in each home. Using special interview skills, the lawyer can collect information from the child without asking the child who they want to live with which is not appropriate – the child’s opinion can change from one day to the next, or they may not be at a stage of development where they can evaluate their decisions.
Having a lawyer represent the child requires a Court Order referred to as “Order to Appoint Child’s Counsel”
Voice of the Child Report:
The Court can also order that a psychologist, approved by the Court, meet with the child, and present their report to the Court. To be approved, the psychologist must have special training, which is quite extensive, and experience. The Report is usually quite extensive and can make recommendations on what steps might assist the parents to work together, but cannot make a recommendation on who should have primary care (commonly known in the past as “custody” of the child).
Contact us today at 780-960-8100 or visit mainstreetlaw.ca/business-law-lawyer to schedule your consultation.
