When Do Children Get A Say?

One of the top questions we receive at Mountain Peak Law is “when do children get a say?” Many parents want to know how old their child needs to be to make a decision about which parent they will live with. While there is not a set age at which the court suddenly lets children make that decision, there are many ways in which children can and do participate in family law proceedings.

Hear the Child Reports

Hear the Child Reports are formal, written reports prepared by objective lawyers or mediators that detail exactly what your child says to them about their views on their living arrangements and relationships with their parents. In these reports, the writer will not provide a recommendation on parenting arrangements and will not provide an evaluation of your child’s views. The report will simply state what your child thinks about their school, their parents, the court process, and other relevant topics. While the judge at your court proceedings does not have to accept the child’s wishes, they will take them into consideration and put as much value on them as they think is appropriate given the best interests of your child and your child’s level of maturity.

Section 211 Reports

There are two types of Section 211 Reports: Views of the Child Reports and Full Reports.

Views of the Child Report are often prepared by Family Justice Counsellors or Social Workers. These reports do not provide any psychological test results. Typically, the reports include the child’s opinion on where and with who they would like to live as well as some background information on the parents’ relationship. The reports can provide some analysis on the child’s level of maturity and understanding of the legal proceedings. The author will also provide their view on how much of the child’s opinion is influenced by their parents and how much is authentic to the child. This report will usually include a recommendation on parenting arrangements.

Full Reports, also known as a ‘Views and Needs Report’, can be prepared by Family Justice Counsellors, Social Workers, or Psychologists. These reports are quite lengthy, and often quite expensive. They include an in-depth background of both parents and any new partners those parents might have, as well as psychological test results for all adults involved in the matter. The report will also detail the child’s views and maturity level, as well as the author’s recommendations for what parenting arrangements should look like moving forward.

Children’s Counsel

Children can be appointed counsel through the Child and Youth Legal Centre at the Society for Children and Youth. Once assigned counsel, children become parties to their parents’ legal proceedings and their lawyer will be able to voice to the court what the child wants. Children’s counsel ensure that the child is fully informed of all matters going on in the proceedings and will advocate for the best interests as they see them when considering the child’s wishes. Again, the court always must consider the best interests of the child first and therefore may not go with the decision the child wishes to see.

Judicial Interviews

Judges can request to have an interview with a child to a family law proceeding if they believe it to be in the child’s best interests, though it is fairly rare for these interviews to occur. Typically, these interviews allow the judge to determine the maturity and ability of the child to understand the proceedings so that the judge can better determine how to include the child’s opinion when making a decision.

G.F. v M.A.M., 2022 BCPC 45 at paragraph 37 states that the following are some reasons for a judge to consider performing a judicial interview with a child:

(1) To allow for children's views to be heard by the individual who is responsible for decision making.

(2) To facilitate better decision making.

(3) For children to benefit from sharing their views in private and in confidence.

(4) To make sure judges do not misinterpret children's wishes.

(5) The importance of providing input and being acknowledged.

Voting with their Feet

While there is no set age at which children are able to determine where they want to live once and for all, once children become more independent and strong-willed, judges are more reticent to place parenting time orders on them that the children will refuse to follow and that may drive them away from one parent. As stated in Tseng v West, 2019 BCSC 1095 at paragraphs 105 – 106, the judge recognized that previous court cases have shown that children who are forced into parenting arrangements they do not want will simply refuse to accept them and return to the living situation they do want. Often when the child is around their early to mid- teen years and has assertively stated that they are going to stay with one parent over the other, the court will not intervene other than to encourage both parents to facilitate whatever parenting time the child is interested in pursuing with the other parent.