The question of whether children have the legal right to make their own decisions is a complex one. In this first of a two-part blog, I wanted to touch upon the policy and various considerations that go into determining this question.
First of all, in Canadian family law there is a well-established legal principle that courts are to consider the “best interests” of a child whenever making judicial decisions that affect him or her. In some narrow circumstances, there is a corollary to this principle that is not always stated: children have a right to give their own input in some scenarios.
The Canadian government has recognized this as a generally-accepted policy, as evidenced by its role as a signatory to the United Nations Convention on the Rights of the Child, which in Article 12 gives children the express right to be heard in proceedings that affect them:
1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.
This same principle is embodied in Ontario legislation as well, though perhaps a little less expansively. The Ontario Family Law Act sets out in section 24(2) that – in the context of determining the best interests of a child – the court may also consider “the child’s views and preferences, if they can reasonably be ascertained”.
In practice, this typically means a child has the right to express his or her views (though not necessarily make an affirmative decision) on topics such as which parent they prefer to live with in the event of separation or divorce. However, despite the child’s input, the parents can nonetheless agree on who will have custody of the child, and the nature and extent of the access that is to be granted the other. Ultimately, the decision falls to the parents or – if they cannot agree – to the court.
There are other family-related areas in which a child may have a say in what happens to them: this arises regularly in cases where there is a need for court-ordered child protection, for example. Specifically, the Ontario Child and Family Services Act, which sets out the relevant regime and related processes, contains numerous provisions that expressly allow consideration of a child’s own wishes, most notably in specified circumstances where the child is determined to be in need of protection, or where the chid is to be placed in, discharged from, or transferred to a residential placement.
But in whatever context, it should be noted that whenever a child’s views are to be taken into account, they are not necessarily wholly determinative – rather, the court will give different weight to a child’s wishes depending on various factors such as the stage of the child’s life. As a general rule, the older the child gets, the greater the range of input the child will usually have on the question of what is in his or her best interests. The maturity of the child – as demonstrated by numerous factors such as the child’s behaviour at home and at school – will also be an important consideration.
For more information, or to schedule an appointment, contact Russell Alexander, Family Lawyers at 1.905.655.6335.