Family lawyers see the highest degree of conflict in files that involve disputes over the custody of children, but at what point can a child "vote with their feet" and go to live with the parent they prefer? The age of majority for children in British Columbia is 19 but courts often allow children to have a say in which parent they want to be with before they reach this age. The question of how old a child should be before the court gives weight to their preference is decided on a case-by-case basis. The age, maturity, and ability of the child to articulate their wishes clearly are all factors the court will take into consideration. These questions, however, are often complicated by other aspects of the relationship between the separated parents: payment of child and spousal support, property division, and, sadly, even family violence.
It seems obvious that a child aged 5 or 6 might not be able to make a trustworthy decision regarding where he or she wishes to live, but what about a child of 12 or 13? Or a teenager 16 or 17 years of age? The courts have the power to order that children's views be relayed to the courts through various third parties such as expert report writers, non-evaluative report writers, and children's lawyers and, on rare occasions, will allow the children to testify in court themselves.
Section 37 of the Family Law Act is on the "Best Interests of the Child" and reads in part:
- 37 (1) In making an agreement or order under this Part respecting guardianship, parenting arrangements or contact with a child, the parties and the court must consider the best interests of the child only.
- (2) To determine what is in the best interests of a child, all
of the child's needs and circumstances must be considered,
including the following:
- (a) the child's health and emotional well-being;
- (b) the child's views, unless it would be inappropriate to consider them...
Section 37 (g) of the Family Law Act compels the court to also consider:
- (g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member...
Family violence has a broad definition and can include physical, mental, and emotional abuse. It is present in many of the cases family lawyers in British Columbia have to deal with and affects families from all walks of life.
Examples of the Section 37(2) (b) and (g) Factors in Case Law
The Family Law Act came into effect in March 2013 and many decisions have been pronounced by courts since then which have taken the wishes of children into consideration. On July 4, 2024, Mr. Justice Harvey issued a decision in the case of J.M.M v. I.P.M., 2024 BCSC 1811 which involved, amongst other things, a dispute between two separated parents over the care of two children, A., aged 17, and Z., aged 5. The court had to be particularly careful in its application of the law in this case as there was little agreement between the parties over other issues in the case and because the father of the children had engaged in family violence in the form of assaults on the mother in front of the children both before and after separation. The parties separated in 2019 and began sharing parenting time with the children informally between them. This continued until a tragic incident which occurred at the doorway of the father's home in November 2023 which involved the father breaking the mother's cellphone, the mother assaulting the father in response, and the father responding by assaulting the mother and the teenaged daughter, Z., who was then approximately 16 years old. The father admitted his role in the violence. The police and the Ministry of Children and Family Development performed investigations but no charges were laid and the files were closed.
Nevertheless, the court made an interim order (an order which is in place until further agreement or court order) shortly thereafter in December 2023 which allowed the father to have parenting time with both children 2 nights per week and during the day on a 3rd day each week. Exchanges of the children were to occur at school whenever possible in order to minimize contact between the parents. Crucially, the parenting time between the father and the eldest child, A., was to remain "subject to [A]'s discretion".
This arrangement stayed in place until the parents returned to court in April 2024 and the mother asked the court to make the interim order of December 2023 permanent, but the father wanted to have the youngest child, Z., in his care half of the time, in other words, in a 50/50 parenting time arrangement. The father agreed that the oldest child, A., could spend less time with him on a schedule that was more convenient for her.
The Father's Parenting Time with A. (17)
In a surprising move, the court permitted A. to testify because the Views of the Child report commissioned by the parties failed to mention any family violence. A. was clear that "dad usually started it" but that she, as a "mature and confident 17-year-old [had] clear and understandable reasons for her preferred interactions with" the father. The father acknowledged a degree of his role in the family violence and the court held that "A.'s preferred parenting schedule makes sense". The father had taken an anger management course and the court hoped that time would heal any remaining wounds arising from the family violence: "Regardless, every parent needs to recognize the time will come when a child "votes with their feet". A has 'voted' and the [mother] accepts her decision". The court ordered that A. would continue to see the father overnight on weekends and during the day at other times, ideally in the presence of her sister Z. This was in accordance with A.'s stated wishes, it was appropriate to take her views into account "particularly [because she was] so close to the age of majority", and because she had a "need to maintain a strong, healthy relationship with the [father]".
The Father's Parenting Time with Z. (5)
The child Z., on the other hand, was still only five years old at the time of trial and the court could not properly consider her views as reliable in determining what her best interests were. The court stated, however, that: "Despite the violence...the [mother] remains comfortable with Z. spending extended periods of time with the [father] without fear for her emotional or physical safety". The court continued to order that the father's parenting time with Z. be limited to overnights on weekends. Importantly, the parents
were each to have 2 weeks each summer where Z. was exclusively in their care.
Should I Seek Legal Advice in a High-Conflict Custody Case?
Family violence is an unfortunate reality of the breakdown of the relationship between parents but it is not an absolute bar to further parenting time with children if it is properly addressed. We are experienced in dealing with the nuances of disputes of this nature in court and through alternative dispute resolution.
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This article is intended to be an overview and is for informational purposes only.