At What Age Can a Child Choose Which Parent to Live With in BC?

Parents of older children often hear it first at home: "I want to live with Dad" or "I'm not going back to Mom's." Many assume that at 12, or 14, or 16, the child's wish becomes the deciding factor.

It does not work that way in BC. There is no age at which a child chooses. The law requires a child's views to be considered, but as part of a wider look at the child's best interests. Here is how that works and how a child's views actually get in front of a judge.

There is no age at which a child decides

Neither BC's Family Law Act nor the federal Divorce Act names an age at which a child gets to choose where to live. Decisions about parenting arrangements are made on one standard: the best interests of the child. Under section 37(1) of the Family Law Act, parents and the court must consider the best interests of the child only.

Under the Family Law Act, a "child" for parenting purposes is a person under 19. Until then, an agreement or order about parenting time and parental responsibilities applies, whatever the child prefers.

How a child's views fit into the best interests test

Section 37(2) lists factors that must be considered, and the child's views are one of them. The child's views must be considered unless it would be inappropriate to consider them. They sit alongside other factors, including:

• Health and emotional well-being.
• Relationships between the child and the important people in the child's life.
• The history of the child's care.
• The need for stability, given the child's age and stage of development.
• Each person's ability to exercise their responsibilities.
• Family violence and its impact on the child's safety and well-being.

Section 37(3) adds that an arrangement is not in a child's best interests unless it protects, to the greatest extent possible, the child's physical, psychological and emotional safety, security and well-being. The Family Law Act also says no particular arrangement is presumed to be in a child's best interests, including equal parenting time, which our article on whether 50/50 parenting is the default in BC explains.

In a divorce, the Divorce Act's list is similar. Section 16(3)(e) directs the court to consider the child's views and preferences, giving due weight to the child's age and maturity, unless they cannot be ascertained. That wording explains what parents see in practice: a thoughtful 15-year-old's clear and settled preference will usually carry more weight than a young child's, but it is still weighed, not obeyed.

How a child's views reach the court

A child does not have to testify for their views to be considered. The Family Law Act gives the court other ways to hear them:

• Reports under section 211. The court may appoint a person to assess the needs of a child, the views of a child, or the ability and willingness of a party to meet the child's needs. The person must be a family justice counsellor, a social worker or another person approved by the court, and must not have had a previous connection with the parties unless they agree. The report goes to the court and, unless the court orders otherwise, to each party. The court can decide who pays.
• Directions about a child's evidence. Under section 202, the court may admit reliable hearsay evidence of a child who is absent, and may give other directions about how a child's evidence is received.
• A lawyer for the child. Under section 203, the court may appoint a lawyer to represent the child's interests, but only where conflict between the parties is so severe that it significantly impairs their capacity to act in the child's best interests and an appointment is necessary to protect those interests.

A report limited to the child's views is different from a fuller assessment of the child's needs and each parent's abilities. Which one, if any, suits your family is a strategic choice, and costs and timing vary.

What parents should and should not do

• Listen, but do not put the child in the middle. Under section 199, the court must encourage parties to focus on the child's best interests, including minimizing the effect of conflict on the child.
• Do not coach. Assessors and judges look at whether a child's views are their own and how they were formed. Pressure from a parent may reduce the weight a child's stated preference receives.
• Do not ask the child to decide. Asking a child to pick a parent puts them under real strain, and the decision remains with the parents or the court.
• Keep records. If a child is refusing parenting time, note dates, what was said and what you did to encourage the arrangement.

When a teenager wants to change homes

If an older child wants to move, the existing order or agreement still governs until it is changed. Under section 47 of the Family Law Act, a court may change, suspend or terminate an order about parenting arrangements if the child's needs or circumstances have changed since the order was made. A teenager's firm and considered change of view can be part of that picture, alongside school, stability and the relationship with both parents.

Parents can also agree to a new arrangement and record it in a written agreement or consent order. Changing where a child lives can affect child support, so deal with both together. Our overview of guardianship, parenting time and decision-making explains the terms an order uses.

Your child has strong views? Plan how they are heard

Our family lawyers can advise on parenting arrangements for older children, whether a views of the child report or other assessment makes sense, and how to change an existing order.

Call 604-259-2844 or send us a message to arrange a consultation at our Vancouver office.