When can a child decide which parent to live with in Alberta?
Divorce can be a complex and emotional process especially when involving children who are old enough to be aware of the circumstances and potential impacts to their own living situation. They often have their own perceptions of life after divorce driven by what they have observed or heard and often times their emotional needs are not placed as a priority when their parents are separating or divorcing. Because the nature of divorces can be quite tumultuous and riddled with disagreements – it is highly recommended to involve an Alberta divorce lawyer when it comes to dealing with parenting plans or child custody arrangements.
EXTRA BONUS: Because Life Goes On…..Information For Parents
Relevant framework in Alberta
In Alberta, a child is considered to be any person under the age of 18 and only their parents or the Court can make the decision on where they live. The federal Divorce Act governs custody and access whereas Alberta’s Family Law Act addresses parenting times and other items. The Family Law Act states the Court must takes the child’s wishes into account and more weight is given the older the child is.
Canada has ratified the United Nations Convention on the Rights of the Child which dictates that children who are able to formulate an opinion on the matter have a right to express their views freely in legal proceedings. There are various examples of Canadian family law decisions which cite this obligation. In cases where child intervention is required, including adoption by a third-party guardian, Alberta’s Child, Youth and Family Enhancement Act applies.
However, the Canadian legal framework enforced by Alberta Courts will always prioritize the child’s best interests as the determining factor for which parent a child will reside with. Although the child’s wishes can be given weight these are not the only factors taken into consideration. Judges will always consider may other factors as well when debating who the child gets to live with and what type of access will be given.
Some of the key elements Alberta courts will consider regarding the child’s best interests include, but are not limited to:
- Child’s physical, psychological and emotional needs;
- Child’s access to school and healthcare;
- Opportunity for least disruption to the child’s lifestyle (stability);
- Opportunity to learn their heritage (language, culture and religion);
- Degree of attachment to each parent;
- History of family violence and criminal behaviour; and
Living arrangements after divorce: The role of the children’s voice
Oftentimes, children can vocalize a preference of which parent they would prefer to live with. Their preference can evolve over time, driven by a variety of factors (e.g. wanting to live in their childhood home, stay at the same school, etc.) and this is something the Courts will take into consideration when finalizing child custody arrangements.
The weight of the child’s voice in the Court’s decision depends on the child’s maturity level and age. Although the legislation does not define a minimum age, there are numerous reported case law that implies that a child’s wishes should “definitely be considered” at 12 years old according to Albers v Albers, 2011 ABQB 456. A child as young as 10 years old can at times have a voice as well according to RM vs JS, 2013 ABCA 441. Typically, when a child is aged 14 to 17, their opinion is an important factor in the Court’s consideration.
It is important to have evidence demonstrating the child is mature enough. If appropriate, this can be accomplished by a “Voice of the Child” report, where a qualified psychologist or counsellor meets with the child and documents their views and preferences. In some cases, this may not be appropriate if the child is placed in an uncomfortable position or if they are too young to express their views effectively.
The judge will apply the law depending on the circumstances of the family and ultimately decide whether the child’s preference is in line with their best interests (or not). Ultimately, even if one parent is granted “primary care”, the other parent is typically allowed to see the child and enquire about their care and well-being depending on the circumstances.
Speak with an Edmonton family lawyer today regarding your parenting arrangement
At Verhaeghe Law Office, our Alberta family lawyers are experienced in assisting families resolve their divorce needs and specific circumstances as amicably as possible. Especially when children are involved – it remains our priority to ensure their best interests are placed first. To better understand how we can assist with your parenting arrangement – contact our law firm today by calling 587-410-2500 and speak directly with a divorce lawyer regarding your child custody arrangements.
Note: This blog offers general information for your convenience and does not constitute legal advice. Family law can be complex and you’re encouraged to seek legal advice to better understand your rights and responsibilities as well as the rights of your children.