When should children have a say in important decisions? It depends

By Tony Poland, LegalMatters Staff • Promoting the best interests of a child is a guiding principle in family law and weight must be given to children’s views and preferences. However, determining at what age they should have a say in important decisions can be challenging, says Toronto family lawyer A. Julia P. Tremain.

“Some parents want a magic age where a child can make decisions for themselves. They ask, ‘Can’t they decide where they are going to live when they are 12, or when they are 14?” says Tremain, a partner with Waddell Phillips Professional Corporation. “And the short answer is no. Each child is different and some are better able to make difficult decisions earlier in life than others.

“Ultimately, they are not adults until they are 18 and reach the age of majority in Ontario. Then the child can make decisions for themselves and become responsible for the actions they take,” she tells LegalMattersCanada.ca. “Until that time, parents are expected to make the decisions that affect their children’s well-being. A child’s view must still be considered. Typically, the older the child, the more weight is given to their wishes.”

Tremain says children’s rights in family law have been evolving in the past few decades. She points to the United Nations’ 1989 Convention on the Rights of the Child as an example.

Rights are about respectful relationships

“Some critics fear the Convention on the Rights of the Child offers too much encouragement for children to act individualistically and in defiance of the authoritative adults in their lives,” the UN states. “In reality, Convention rights are about respectful relationships.”

Canada ratified the Convention in 1991. Under the treaty, children are entitled to:

• Protection from abuse, exploitation and harmful substances.
• Provisions such as education, health care and an adequate standard of living.
• The right to participate in family decisions affecting their lives.
• Specific protections and provisions for vulnerable populations such as children with disabilities and Indigenous children.

Canada’s Divorce Act was amended in 2021, with an emphasis on the best interests of a child.

“Children have the right to express their views in all matters that affect them, especially in court or administrative proceedings,” according to the Department of Justice. “All Canadian children have this right as long as they can form their own views. More weight should be given to their views as they age and mature.

Better able to cope with separation

“The decisions parents and judges make about parenting directly affect children, and children should have a chance to share their views about these decisions. Research also shows that children cope better with the separation of their parents when they have had a chance to express their views.”

Tremain says different parenting styles can come into play when deciding how much input a child should have.

“There are some parents who are more traditional and more authoritarian, which works for them,” she says. “Whereas some parenting styles suggest that it is better to negotiate with your child.

“How someone decides how much input a child should have differs but it is important to remember that they should have a say,” Tremain adds. “It could start off with letting them decide if they want to have rice or noodles for dinner. Then as they get older, those choices become bigger and more significant.”

Allowing a child the right to participate in family decisions obviously does not mean giving them autonomy, she says.

“Some decisions must be made in a child’s best interests that they may not agree with, such as innoculations. As well, a child might not understand the logistics of running a family,” Tremain explains. “It may be their choice that Dad picks them up after school. But does that fit into his work schedule? A child may not realize how difficult it can be to leave work early.”

May be reluctant to share true preferences

Some children may be reluctant to share their true preferences for fear of hurting the feelings of one of their parents, she says.

“One parent will say the child is telling me X and the other parent will say the child’s telling me Y. Children often want to please both parents,” says Tremain. “Unfortunately, some parents who are often embroiled in litigation sometimes forget that their child is feeling torn and they don’t want to hurt anybody.”

She says in those cases, the Office of the Children’s Lawyer (OCL) may be able to help.

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The OCL is an independent law office under the Ministry of the Attorney General that represents the interests of a child under the age of 18 in matters and court cases in Ontario involving:

• parenting time, contact and decision-making responsibility for children;
• child protection;
• civil cases (for example, personal injury, motor vehicle accidents and medical malpractices);
• estates and trusts; and
• requests for minors’ funds

“The office gives children a voice but it can still be challenging for children to share their feelings because they realize that their parents are eventually going to hear what they have to say,” Tremain says.

No hard and fast rules

She says there are no hard and fast rules when it comes to how old a child should be when deciding who they want to live with.

“Children grow and mature differently. Some are more sophisticated than others even though they may be the same age,” says Tremain. “It comes down to common sense and recognizing the developmental age of the child.”

Each child is unique and while their opinion must be taken into consideration, it is only one factor for a judge to consider when deciding the most suitable parenting arrangement, she says.

Tremain says considering a child’s preferences can be difficult for parents.

“They may attempt to get their children onside or try to influence them. And it may not be nefarious,” she says. “It may just be that they feel really strongly that the child is better off spending the majority of the time with them.”

It can also be difficult for a parent when a child matures and decides they want to change the living arrangements to spend more time with the other parent, Tremain says.

‘You must try to put yourself in your child’s shoes’

“However, as a parent, you must try to put yourself in your child’s shoes,” she says. “Keep an open mind.”

The best thing for a child is that they know they are supported, Tremain says.

“It is essential to tell your children how much you love them,” she says. “A child should know that both parents want to do what’s best for them. Sometimes they may have a different view about what that is, but both parents want to do what is right.

“Children deserve to have input so parents can understand what works for them. But, ultimately, parents have a duty to do what is best for the entire family,” Tremain adds. “Flexibility is important and sometimes people lose sight of that. Sometimes people try something and it might work out. If what you are doing doesn’t have the expected results, try something new or go back to the way it was before.”