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Courts need to consider a child’s views and preferences regarding parenting issues since a court order will impact them. There are a range of ways in which a child’s views can be provided to a court, including through interviews, assessments, or through the Office of the Children’s Lawyer (“OCL”). However, while children can have a voice, courts have indicated that children’s views are only one factor among many that must be considered when determining their best interests. And new evidence of a child’s parenting preferences may not constitute a material change justifying a variation of a parenting order.
Children’s Views Can Be Considered by Courts
Determining parenting arrangements can be a source of dispute between parents following a separation. Courts often find it helpful to obtain feedback from the children directly before making parenting orders. The Children’s Law Reform Act also directs courts to consider “the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained”. A.E. v. A.B. involved a proposed relocation in which the mother sought to move with the children to Ohio. The case was clear that the children’s preferences were only one factor that the court could consider. The judge noted that the voice of the children’s report did not determine the relocation issue but was merely a piece of helpful evidence for the court to weigh. Justice Jarvis further emphasized that the children’s views and preferences were “not to be confused with their best interests”.
In Kim v. McIntosh, the father appealed from a dismissal of his motion to change parenting time and decision-making. The Office of the Children’s Lawyer also supported his appeal. The father resided in Australia, and the children lived with the mother in Ontario. A 2021 order granted the mother sole decision-making authority while providing the father up to eight weeks of parenting time. The order also stated that the father shall not remove the children from Ontario. The OCL provided a report on the children’s preferences during the father’s motion to vary that order. The report confirmed that none of the children wished to move to Australia. However, three children wanted to spend more time with the father than the order permitted. They were also interested in visiting their father in Australia during the summer, and having video and phone calls with him.
The motion judge decided that “the children now expressing an interest to visit Australia” was not a material change in circumstances. The judge explained that the children’s views and preferences were only one factor to consider when assessing a child’s best interests. Importantly, the original order determined that the father presented a wrongful removal risk and would not likely return the children from Australia. The motion judge found that it was still the case and noted that even if a material change did exist, she would not vary the order. On appeal, the issue was whether the motion judge erred in her treatment of the children’s expressed preferences regarding their desired parenting time with their father and being able to visit him in Australia. The OCL and the father claimed that the motion judge failed to consider the children’s views properly.
Material Change Needed to Vary Existing Order
In Gordon v. Goertz, the court reiterated that a material change of circumstances must exist before conducting a new analysis on the children’s best interests and varying an existing order. The Supreme Court of Canada recognized that this high threshold serves to provide some certainty and stability to the parents and children. In N.L. v. R.R.M., the Ontario Court of Appeal summarized the three elements of the test. There must be:
- a change in the condition, means, needs or circumstances of the child and/or or the ability of the parents to meet those needs.
- the change must materially affect the child.
- the change was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.
The OCL’s first argument claimed that the evidence of the children’s preferences that was introduced constituted a material change in circumstances that required the issue to be retried, and that the judge erred by not doing so. However, the motion judge considered the children’s views and preferences. But she also accepted that the father presented a “wrongful removal risk”. At the time that the original parenting order was made, the court had determined that there was a risk that the father would not return the children from Australia, and the motion judge concluded that this risk was unchanged.
Court Emphasized that Father Posed a Wrongful Removal Risk
The OCL also claimed that the evidence supported the father’s request for relief and that the children should be able to travel to Australia to visit the father if they chose to do so. The OCL alleged that the motion judge improperly conflated the children’s views with the fact that the father presented a wrongful removal risk. The argument was that the OCL should have considered the children’s views and preferences “constituted a material change independent of any other factors, including the removal risk”. The Court of Appeal rejected this argument. Instead, the court explained that the OCL failed to address the essential point: the father was unlikely to return any child who visited him in Australia. The motion judge specifically stated that even if a material change did exist, she would not vary the existing order for the reason that the order existed in the first place, which was that the father would not return the children if they visited him “and this would most definitely not be in the best interests of the children, especially given their expressed views that they do not want to live in Australia”.
The Court of Appeal also addressed the OCL’s claim that if the father kept a child in Australia, the mother would be able to pursue relief under the Hague Convention on the Civil Aspects of International Child Abduction. But the Court felt that was not an appropriate recourse when the MOTHER had already “endured protracted litigation”. It had limited financial resources largely because the father refused to pay her what she was owed.
The Court further considered the father’s repeated non-compliance with court orders and the resulting impact on the family. This included the fact that he refused to pursue employment, which impoverished his family, while his litigation tactics strained the mother both financially and emotionally. As the Court put it, he has “unaccountably been permitted to litigate despite his refusal to pay any outstanding costs awards and to pay outstanding support orders”. In the Court’s view, the court record showed that the father was “ungovernable”. Even if the Court had not dismissed his appeal on the merits, the Court explained that it would have quashed it due to his failure to pay costs or support.
Children’s Views Do Not Solely Determine Parenting Orders
While children’s views and preferences can be important sources of information to a court, they are not the same as constituting a child’s best interests. When dealing with a request to vary an existing order, courts still must determine whether there is a material change and will still consider all factors when assessing a child’s best interests.
Windsor Family Lawyers Assisting With Decision-Making Responsibility and Parenting Time
The team at Johnson Miller Family Lawyers can provide you with valuable information and strategies based on your particular needs and has experience guiding clients through parenting issues following separation. To discuss your matter further or arrange a consultation, please complete our online questionnaire or contact the firm at 519.973.1500.
