Can a Child Choose Which Parent to Live With in Manitoba?

Many parents and teenagers ask whether there is a magic age when a child can decide where to live. The short answer is that Manitoba law does not set one.

This article explains how a child's views fit into the decision, and how they may be heard. Every family is different, so a lawyer can confirm how this applies to yours.

This article covers the law of Manitoba.

No fixed age

The statutes set no fixed age at which a child's choice decides the matter. The child's views and preferences are one best-interests factor, given due weight according to the child's age and maturity, unless they cannot be ascertained. They are weighed, not decisive.

If a child's views cannot be determined, the court proceeds on the other factors.

Manitoba's Family Law Act replaced the concepts of custody and access with parenting orders that set parenting time and decision-making responsibility. Decision-making responsibility means responsibility for making significant decisions about a child's well-being, covering health, education, culture or religion and significant extra-curricular activities. Parenting time is the time a child spends in the care of a person, and the child need not be physically with that person for the whole period.

How the court weighs a child's views

The court must consider only the child's best interests, with primary consideration to the child's physical, emotional and psychological safety, security and well-being. A child's preference sits alongside other factors, including the child's needs, relationships and history of care.

• An older, more mature child's views will generally carry more weight than a younger child's, because weight depends on age and maturity.
• The views are considered together with factors such as stability and relationships with parents, siblings and grandparents.
• A preference does not override safety concerns, which receive primary consideration.

Other factors include each person's ability and willingness to care for and meet the child's needs, and to communicate and cooperate on matters affecting the child. They also include each person's willingness to support the child's relationships with others, any plan for the child's care, and the child's cultural, linguistic, religious and spiritual upbringing and heritage. Family violence and its impact is a factor as well. In allocating parenting time under the Divorce Act, the court applies the principle that a child should have as much time with each spouse as is consistent with the child's best interests.

How a child's views can be heard

Manitoba's Family Division offers, at no cost through Family Resolution Service, mandatory parenting programs, optional mediation, brief consultations for teenage children and home assessments. A party may also ask an Associate Judge for orders such as referral to mediation or appointment of a family evaluator to conduct a parenting assessment.

How a child's views reach the court in a particular case can vary, so ask a lawyer about the options that fit your situation.

The Family Law Act requires parties, to the extent appropriate, to try to resolve matters through a family dispute resolution process such as negotiation, mediation, collaborative law or family arbitration. Where parents do not agree, a parenting plan is required to proceed in Manitoba court, and each parent must submit their own plan if they cannot agree. For a contested parenting case, the prerequisites include attending the For the Sake of the Children Program, documenting attempted mediation, and obtaining any required assessment report. That program is not required where, for example, the other parent lives outside Manitoba, the parties consent to the order, the matter is unopposed, or the parent attended within the three years before the petition was filed.

Tips for parents

• Avoid pressuring the child or asking them to pick a side; supporting the child's relationships with others is itself a factor.
• Do not promise a child they can decide.
• Keep information about the court process age-appropriate.
• Remember that an order can only be changed if the child's circumstances have changed since the original order.
• If you are a grandparent or step-parent, the rules can differ: non-parents such as grandparents or step-parents seek contact rather than parenting time, and under the Family Law Act a family member may apply for a contact order, while a non-family member needs leave of the court. Separately, a person other than a parent who stands in the place of a parent may apply for a parenting order, but needs leave of the court and must give notice to the parents.

Keeping conversations calm and child-focused is a practical way to protect your child from the stress of a dispute between adults.

What to do next

• Ask about the Family Resolution Service consultation for teenagers.
• Prepare your own parenting plan.
• Attend For the Sake of the Children if it applies to you.
• Talk to a lawyer about whether and how your child's views should be presented.

Start gathering your documents early. The prerequisites for a contested parenting case include exchanging a financial statement (Form 70D) and the last three years of income tax returns. If the matter is urgent, such as an immediate risk to a party or child, an emergent hearing before triage may be possible using Form 70BB.

Frequently asked questions