When Can Kids Choose Which Parent They Want To Live With After Divorce?

When parents have big fights over parenting after separation, it is common for one of them to say that children of a certain age have the right to decide where they want to live. Sometimes it is the parent with whom the children are living who is saying that a child does not have to spend time with the other parent unless the child wants to. Sometimes, it is the parent who doesn’t’ see the children who figures the children will just make up their own mind and will come to see that parent at some point in the future when the child is older. Either way, parents point to things that they have seen on the internet that say a child of a certain age, often twelve, fourteen or sixteen years of age, have an absolute right to decide where he or she wants to live.

There is nothing in any Family Law Statute or other law that says that. Judges do not say that either. It’s not until healthy children turn 18 years old that section 18(3) of the Children’s Law Reform Act and section 2 of the Divorce Act say that judges lose jurisdiction to make parenting orders, so the child can live where he or she wants. Judges order teenagers to live with one parent, often over the teenagers’ objection, all the time (see: D.C. v. T.B., 2021 ONCA 850, Bouchard v. Sgovio, 2021 ONCA 709, and A.M. v. C.H., 2019 ONCA 764) . Despite what Article 12 of the UN Convention on the Rights of the Child regarding giving due weight to the views of children in court, many family judges do not even want to hear the children’s opinion. Judges do not want to hear children’s opinions either out of concern about forcing the children to take sides and favour one parent over the other, or to prevent the children from being manipulated by their parents, or out of fear that they already have been manipulated by a parent.

The family law legislation now puts a big emphasis on being child focussed and looking at which parent can best meet the needs of the children. When a parent manipulates a child, that parent is forcing the child to figure out how to best meet the needs of the parent. Judges hate that.

Contrary to the belief that the Family Law legislation requires judges to put a lot of weight on what a child of separated parents wants, the opinions of older children that are independently formed, without influence by one parent or the other, are but one of many factors that a judge has to consider. Check out the video below (episode 59 of the Ontario Family Law Podcast) about how judges make parenting decisions for an explanation of all of them. Leaving aside the debate about whether the new family legislation abolishes parental rights in favour of a focus on the interests of the children, the children do not have a “veto” and do not decide where they want to live – until they turn 18.

To be clear, a child saying, “I don’t want to go to Mom’s house” or “I don’t want to see dad” is not a basis to cancel the other parent’s parenting time. Neither is “I’m to sick to go” unless the child is in the hospital. For the times when you can cancel the other parent’s parenting time, check out Episode 75 of the Ontario Family Law Podcast (video version below). Things are much more serious once a court makes an order, or the parents sign a separation agreement that can be enforced by the court. 

Once a court makes a Parenting Order, whether the child agrees with it or wants to follow it does not matter until the child turns 18 years old. The Order has been made, and it is the responsibility of both parents to do what is necessary, short of applying physical force that causes actual harm, to get the child to spend time with the other parent or otherwise comply with the parenting order. Half-hearted attempts by one parent to facilitate the child’s relationship with the other parent will be the basis of a contempt finding or worse consequences.

On a similar note, the family law legislation does NOT say that kids should be with their mothers. It does not say that kids should be parented by fathers even if they are unfit. It purposely does not set shared parenting as being the starting point. The focus is supposed to be on the children and the children’s needs and which parent is best able to take on the necessary responsibilities of raising them. 

Twenty years ago, it was true that women were more likely to have stayed home to look after the kids and had become the primary, sometimes only, parent because the father was the hard-working breadwinner. That resulted in a situation where mothers could not work, and fathers could not parent. But the world has changed dramatically since then. Women are at least as likely to be professionals are men. Most households have both parents working full-time. It is now culturally normal for fathers to be involved in every aspect of parenting. All the sociological reasons why kids usually end up with mothers are gone. Now judges and arbitrators have to look at what is going on in each family and what parenting arrangement best serves the particular kids whose family is before the court. Parents who feel that the family court is biased against them will accomplish more by meeting with a top family lawyer to figure out what they are doing wrong, than accusing the court of bias. The internet is full of complaints by people of all genders saying that the court is biased against them. So, that just can’t be true.

To get the best advice, specific to your situation, you should speak to a family lawyer. Certified Specialist in Family Law, John Schuman, is known for his concern for children in separation and divorce and has won many parenting cases. To contact John call 416-446-5847, email him, or fill out the form below. You can use the same form to comment on this page.