Will a Judge Talk to My Child About Where They Want to Live?

Many parents wonder whether their child will have to go to court, sit in front of a judge, or say which parent they prefer. In most cases the process is more indirect than that, and it is designed to protect the child from being put in the middle.

This article explains how a child's views can be brought before an Ontario family court, who is involved, and how much weight those views carry. It is general information and not a substitute for advice on your case.

The child's views are one factor, not the whole decision

In making a parenting or contact order, the court considers only the best interests of the child and gives primary consideration to the child's physical, emotional and psychological safety, security and well-being. The child's views and preferences are one of the listed factors, and the court gives them due weight in light of the child's age and maturity, unless they cannot be ascertained.

Other factors include the child's needs and stability, relationships with each parent, each parent's willingness to support the child's relationship with the other, history of care, and cultural, linguistic, religious and spiritual upbringing. The court must also consider any family violence and its impact. Those references are to the Divorce Act. If you are not asking for a divorce, a different statute may apply, so a lawyer can confirm which one governs your case.

How a child's views get before the court

The usual route is not a private chat in the judge's chambers. It is a professional who speaks with the child and reports to the court. The main options are below.

The age ranges above describe how the OCL generally works. They are not legal thresholds. The OCL does not decide best interests; the court does.

How to ask for the OCL to get involved

A party can ask the judge for an order involving the OCL at the next appearance, or bring a Rule 14 motion, or the judge can request it. If the OCL is involved, the intake forms are due within 14 days of the order. The OCL may decline, for example if an assessment was completed in the past year.

Because the OCL can say no, and because private clinicians are another route, it is worth discussing the options with a lawyer before you decide how to proceed.

Protecting your child through the process

Justice Canada says children's views get more weight as they grow and that needs change with age. It also advises against asking children to choose a parent, and suggests asking about what matters to them instead.

• Do not ask your child to pick a side.
• Ask open questions about what matters to them, such as routines, friends, school and activities.
• Do not coach your child on what to say to a clinician or lawyer. A child who feels pressured may be less clear about their own views.
• Speak respectfully about the other parent. Each parent's willingness to support the child's relationship with the other is a factor the court considers.

What to do next

• Think about whether your child's views are likely to be clear, and whether the situation suggests a report or a lawyer for the child would help.
• Raise the question early with your lawyer, or at your next court appearance if you are representing yourself.
• Write down what matters to your child in practical terms, such as school, activities and relationships, so you can speak to it calmly.
• Keep your child out of court paperwork and conflict wherever possible.
• If you need help finding a lawyer, the Law Society Referral Service can provide a family lawyer for an initial consultation of up to 30 minutes.

Frequently asked questions