Immigration and Refugees Law
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A common misconception in family law is that once a child reaches a certain age—whether 12, 14, or 16—they gain the absolute right to legally choose which parent they want to live with. Under Canadian law, there is no magic threshold age that grants a child this definitive decision-making power. Instead, the ultimate standard remains the best interests of the child, with their views acting as just one of many components considered by the court.
The federal Divorce Act explicitly outlines how a child’s input should be handled. Under s. 16(3)(e) of the Act, courts must consider:
“the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained”
This statutory directive means courts review what the child wants, but they weigh that preference against their specific age and developmental maturity. It does not hand the final decision over to the child.
This principle is consistently reinforced across Canadian jurisprudence as the concept of “voice, not choice.” In the case of SK v DG, 2022 ABQB 425 (at para 164), the court noted:
“It is often said a child has a voice, but not a choice. The views and perspectives of a child are significant for a judicial decision about the child’s best interests, but they are not determinative.”
The court further clarified at paragraph 314 that there is no threshold age that is determinative, stating that each case must be resolved contextually. At paragraph 322, the court added: “Age is not a determinative factor. Capacity is contextual and based on the child’s appreciation of the circumstances.”
Rather than acting as a hard cutoff, a child’s advancing age and maturity simply increase the evidentiary weight given to their preferences. In DCE v DE, 2021 ABQB 909 (at para 21), the court explained:
“No specific age is a threshold for appointing counsel nor invites a presumption that the child’s views should be taken into account. The inquiry into the child’s age and degree of maturity is individualized and contextual.”
Paragraph 24 of the same ruling reiterates that “the child is usually asked to express views or preferences, not to make choices.”
This cumulative approach is shared by appellate courts across the country. For instance, the New Brunswick Court of Appeal in L.S. v. M.S., 2019 NBCA 64 (at para 21) observed:
“The wishes of children age ten to thirteen are commonly regarded as an important, though not a decisive, factor in parental custody disputes. The wishes of the children increase in significance as they grow older.”
Provincial legislation mirrors this framework. In Ontario, s. 24(3)(e) of the Children’s Law Reform Act (CLRA), R.S.O. 1990, c. C.12, uses nearly identical language to the federal statute, mandating that due weight be given to the child’s age and maturity.
In Flood v Flood, 2018 ONCJ 822 (at para 34), the court directly addressed the misconception of age limits:
“There should be no bright line age cut-off whereby it is determined that the child is too young to effectively participate in the process. Every child is different.”
Confusion sometimes arises regarding older teenagers due to s. 65 of Ontario’s Children’s Law Reform Act, which states:
“Nothing in this Part abrogates the right of a child of sixteen or more years of age to withdraw from parental control.”
It is crucial to recognize that this provision does not grant a 16-year-old an automatic legal mechanism to dictate judicial parenting orders within custody disputes. It simply protects their right to withdraw from parental control, which operates under a different legal framework than general parenting actions.
In Canada, a child never reaches a precise age where they can definitively select their living arrangements in a court of law. While their independent thoughts, maturity, and stability of opinion carry heavier weight as they grow older—becoming highly influential near the age of majority—the final decision is always dictated by the court’s holistic evaluation of the child’s best interests.
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No, Canadian law does not set a fixed threshold age. Courts look at the child’s age and maturity contextually, treating their input as a voice, not a final choice.
It means that while a child’s views and preferences are heard and considered, they are not automatically determinative or the final deciding factor.
Under section 65 of Ontario’s Children’s Law Reform Act, a child of 16 or older can withdraw from parental control, but this is distinct from a general right to dictate court-ordered parenting arrangements.
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