At What Age Can a Child Choose a Parent to Live With in Ontario?

Many parents and teenagers believe a child can decide where to live at 12, 14 or 16. It is a very common belief, and it often shapes how parents negotiate or how a young person behaves after separation.

The reality is more nuanced. This article explains how a child's wishes are treated in Ontario, how those views can reach the court, and what happens if an older child's wishes change after an order is in place.

There is no magic age

Under the federal Divorce Act, the court considers only the child's best interests when making a parenting order. The Act lists the child's views and preferences as one factor, and the court gives them due weight according to the child's age and maturity, unless those views cannot be ascertained. No age is written into that rule as a cut-off, so you should not rely on any fixed age.

Unmarried parents, or parents who are not divorcing, cannot get a Divorce Act order and need a parenting order under Ontario's Children's Law Reform Act. How a child's views are weighed under that Act depends on its own provisions, so it is worth confirming them with a lawyer.

Where a child's views fit among other factors

The child's views sit alongside other best-interests factors. These include the child's needs given their age and stage of development, including the need for stability, the history of care, each parent's willingness to support the child's relationship with the other parent, any family violence, and any relevant civil or criminal proceedings. The court must give primary consideration to the child's physical, emotional and psychological safety, security and well-being.

When allocating parenting time, the court must give effect to the principle that a child should have as much time with each parent as is consistent with the child's best interests. The Act sets no presumption of a particular schedule.

• A strong preference from a mature teenager may carry real weight.
• A younger child's views are weighed according to their age and maturity.
• A preference is weighed alongside the other factors, and the court gives primary consideration to the child's safety, security and well-being.

How a child's views reach the court

How a child's views are put before the court depends on the case. A judge can order the Office of the Children's Lawyer to provide a voice of the child report summarising the child's statements, typically for children over seven. That report is due within 30 days after a clinician is assigned. A full Children's Lawyer Report takes about 90 to 120 days.

If you disagree with a clinician's report, you have 30 days after receiving it to serve and file a statement disputing it, under rule 21 of the Family Law Rules.

Planning for a child's changing views

Children grow, and their wishes can change. A parenting plan should be flexible enough to be realistic and allow for unforeseen events, and parents are asked to consider the children's ages and how the plan may change as they grow. The court must include in a parenting order any parenting plan the parties submit, unless it is not in the child's best interests, in which case it may modify the plan.

An informal plan can be difficult to enforce, while a plan included in a separation agreement or a court order is easier to rely on. Building in how you will revisit the schedule as a child gets older can reduce conflict later.

If an older child's wishes change after an order

A child cannot change a court order by choosing to stay somewhere else. Parents can update an agreement by agreeing to the change, but a court order can only be changed by a new decision from the court.

• By agreement: both parties sign Form 15C (Consent Motion to Change) in front of witnesses and file it with Form 14B and a typed Form 25 draft order (5 copies).
• Without agreement: file Form 15: Motion to Change, sworn before a commissioner, with a copy of the order and Form 35.1 for parenting changes.
• Under the Divorce Act, the court must be satisfied there has been a change in the circumstances of the child since the order was made before it varies a parenting order.

Whether an older child's changed wishes amount to a change in circumstances depends on the facts, so it is worth getting advice before you act.

What to do next

• Read your current order or agreement carefully and keep following it unless it is changed.
• Avoid asking your child to pick a side or carry messages between households.
• Talk with the other parent about whether a change can be agreed in writing.
• Gather information about what has changed for your child, such as school, health or routines.
• Speak with a family lawyer about whether a consent change or a motion to change fits your situation.

Frequently asked questions