If you are going through a divorce, you are likely concerned about the impact on your child. This is understandably a difficult period for them, and their emotions may change rapidly from day-to-day. Against this backdrop, a difficult decision will have to be made on who retains custody of the child. How this decision is handled can have far-reaching and long-lasting impacts on the child’s wellbeing.

A question we often receive at Westside Family Law is when is a child old enough to decide which parent to live with? Unfortunately, there’s no simple answer to this question. In British Columbia, there is no defined age at which children can choose which parent to live with following a separation. However, we can look to the Family Law Act and legal precedent for some answers.

How the Law Sees Child Custody

In previous cases of child custody, courts have taken the child’s preferred parent into consideration when making their decision on custody. What we have seen in the past, is that the weight a court places on the child’s preference is weighted depending on the child’s maturity and age. The preference of a young child likely won’t carry much weight with a judge. The Family Law Act allows room for the judge to interpret and apply the law to the unique circumstances of each case.

A precedent in this area was set by O’Connell v McIndoe (1998 CarswellBC 2223 BCCA). In this case, the judge was deciding the custody of a child in their teens. The decision stated that “in order for custody orders relating to children in their teens to be practical, they must reasonably conform with the wishes of the child.”

Voice of the Child Report

So, how is the opinion of the child established by the court? A document called a Voice of the Child Report will be produced. This process involves a psychologist or counsellor meeting with the child to discuss their views and preferences. This act of discovery will only take place if the court deems it appropriate to do so. No vulnerable, or young child will be asked to take part. The report will only be produced if speaking to the child is assessed as an activity that won’t cause any harm.

Here to Help

If you need help navigating any part of the child custody process get in touch with us today. Our qualified team of family lawyers are ready to help you.