At what age can a child decide with which parent s/he wishes to reside?

The age at which a child can decide with which parent they wish to reside is a grey area in the law.

In making an order for custody and access, the best interests of children are paramount. Section 16(8) of the Divorce Act outlines that “[i]n making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.”  Section 24(1) of the Children’s Law Reform Act states: “The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4).”

The best interests of children include:

24(2)

(b) the child’s views and preferences, if they can reasonably be ascertained;

Case law suggests that that children aging in range from 14 years of age (Di Liberatore v. Fabrizi, 2005 CarswellNS 576 (N.S. S.C.)) to 16 years of age (L(N) v M (RR) 2016 ONCA 915) may be permitted by a Court to decide where they want to reside.  Except in the context of extreme parental alienation, it would be rare for a child of over 16 years of age to have their wishes with respect to residency ignored by a judge.

If you have questions about custody and access, contact the experienced divorce lawyers at Krol & Krol for a consultation at 905.707.3370.