Lace up your shoes….

“A voice, not a choice” is a common refrain that is used by the Courts, family law lawyer, and experts when it comes to discussing children’s views on parenting arrangements.   What this really means is that the Courts have accepted that, come a certain age, it may be relevant to hear a child’s views in respect of the parenting arrangements that are to be considered by the Court.  This is the child’s voice that the Court may wish to hear, but these views of the Child are only one factor to be considered by the Court, and the Court has the discretion to determine how much weight to really place on the views of the child.

However, while a child may have their views heard and considered by the Court, the Courts have historically held that children below a certain age should not be weighted with the responsibility of choosing the parenting arrangement.

It is true that at some point, children will reach an age where the Courts will not be willing to enforce terms of a parenting order, if the children refuse to comply with it, at which time the children are seen to actually have a choice.  However, while there is no defined age at which children obtain this right to choose, historically, such circumstances typically arise when children have reached an age where they are more freely mobile and able to remove themselves from either parent’s care.

As an example, in K.E.F. v. T.W.P., 2016 BCSC 1706, a case out of British Columbia, two children, aged 12 and 14, refused to visit with their mother in accordance with a Parenting Order.  The Court a father was held in contempt of a Court Order for allowing his children to determine their own parenting time with their mother, outside of the Parenting Order.  The Court held that because the father did not take any positive steps to compel his children to attend at the mother’s house during her Court Ordered parenting time, he was in contempt of the Court Order for failing to “use his own parental authority to override the children’s wish to spend less time with their mother.”

In support of this, the Court stated:

“The [Father] is well aware that is it not for the children to “call the shots” with respect to their parenting. Nevertheless, the respondent has allowed the children to make decisions about who should parent them and when and he bestowed on them the power to give effect to those decisions.”

It is clear that the Court was of the position that even at age 14, it is inappropriate to give children a “choice” in respect of parenting.

In Alberta, however, the Courts have recently issued a decision that appears to run counter to this viewpoint.  In Raugust v Raugust, 2018 ABCA 30, the Court of Appeal refused to grant a Stay of a decision out of the Court of Queen’s Bench that directly spoke to the question of whether children have a voice or a choice.

In Raugust, the parents of a 14 year old child were in a shared parenting arrangement.  The Father brought an application to the Court to vary that arrangement and grant the father primary parenting.  However, after considering the evidence, the Court of Queen’s Bench instead granted the mother primary parenting.  In so doing, the Court stated “I’m not going to order a 14 year old girl to go… if she wants to be with her dad, she laces up her sneakers and away she goes.”  In denying the Father’s application for a stay of that Order, the Court of Appeal stated that the Queen’s Bench Justice was “conscious of the fact that she is 14 years old and, in his view, sufficiently mature, at least in the interim, to decide on how often she wants to have parenting time with her father.”

As a result, the Court has positively supported the conclusion that the 14 year old in Raugust was of such maturity as to have a “choice”, and to “call the shots” over when her parenting time with her Father will take place.

The Court of Queen’s Bench made the decision to terminate shared parenting on the grounds of stopping the conflict between the parties. However, by stating that the child in Raugust could effectively decide her own time with her father, this leads to a number of potential scenarios that could only increase the conflict further, without any answer or certainty for the parents as to their rights.  For instance, does the child have the right to choose to terminate all parenting time with her father? Would the mother be justified in simply sitting back and permitting this to occur?  Alternatively, should the child decide to spend more time with her father than ordered by the Court, would the mother have any options to enforce the Order to limit the child’s time with the father to ensure that the mother still remains the “primary parent”?

Additionally, while every child is different and some children may have the level of maturity at age 14 to make these choices, while others may not, the end result of this decision is to create uncertainty for parents with children in this age range.  In the face of a parenting order, many parents might read this decision as permitting them to ignore the provisions in the Order and simply let their children decide, thereby placing the onus upon the parent losing their access to bring the matter to the Court and demonstrate the children should not have that choice.

“A voice, not a choice”, is intended to allow children to be heard, while keeping them removed from the conflict between their parents by keeping decision making out of the hands of the children.  By allowing children to choose, without clear guidelines or communication to parents and children as to the limits of the child’s decision making rights, rather than reducing conflict, the potential for the opposite can occur, actually making children and their decisions the centre and the source of the conflict.