Have you ever said, “when you’re twelve, then you can choose?” If so, stop doing that…
a) Can a child choose who they live with?
In my family law practice, I see many parents “dueling” over children. It strikes me as odd because they made these children “together”. So, at some point, having children together was a good idea or a possibility, and the other parent was eligible enough to participate in this process.
While there are many reasons parents separate and often, there were good reasons…..the Court starts with the understanding that parents made children together.
The truth is a Court only considers what is in the child’s best interests. That’s it. Even if there is domestic violence, mental health issues or addictions, the Court will still ask: What is in this child’s best interests?
b) When does a child’s voice get heard in Court?
I often ask my clients to remember: A child gets a voice but never a choice. This sums up a child’s right to choose either shared parenting, primary care or some other parenting arrangement. Only when the child is the age of majority (which in Alberta is eighteen (18) years old), does a child get to make decisions.
As a child gets older, the Court will start to consider a child’s views and hear their voice, but the child never gets to make a choice.
The Court will also consider whether a child’s views are affected or influenced by either parent. If a Court finds a child’s views are impacted by parental alienation, parental estrangement, trash-talking by the parents or by mental health issues, a Court will put less weight on a child’s views. Because a child’s view is not his or her own. The child may be mimicking a parent’s preference, may be influenced against the other parent or a child may not have the mental capacity to understand what is going on.
c) How is a child’s voice heard by the Court?
In Alberta, children are typically not allowed to speak with the Court directly. It is a rare occasion when a Judge asks to speak with the child, alone. In criminal law, you will see children giving testimony to the Court if they are the victim. But in family law cases, the Judge sees children giving testimony as not in their best interests.
If a child’s views are important either because of a child’s age or because a child’s views will assist in determining an issue, then parents can ask the Court to order either a lawyer for the child or a psychological assessment. The child’s views are presented through the child’s lawyer or psychological report.
d) What are the costs involved?
In Alberta, Legal Aid will provide coverage for the child’s lawyer. This means that initially, Legal Aid will pay for the child’s lawyer BUT the parents are Court Ordered to repay Legal Aid. Typically, the Court Order will set out each parent’s portion of these costs. So, it is not free.
It is also possible to privately retain the child’s lawyer, and typically, the parents share this retainer equally.
Psychological assessments vary in cost depending on the expert hired to conduct the assessment. In Alberta, there is a list of “approved assessors” that parents must choose from. The parents or their lawyers will conduct the agreed-upon assessor to ask about fees and the timeline to complete this assessment. No doubt this option can be very expensive.
e) How long a child’s lawyer represent the child?
A child’s lawyer will represent the child until the family matter is decided by the Court. A child’s lawyer can choose to either take the child’s instructions and advocate directly for what the child wants OR to take a “best interests approach”. In the best interest approach, the child’s lawyer advocates for what is in this child’s best interests based on the evidence.
Which route the child’s lawyer takes depends on several factors: a child’s age, a child’s maturity and capacity to understand what is going on, whether there is estrangement or parental alienation and any other factor specific to the child being represented.
f) Shared Parenting or Primary Care?
The child’s lawyer can make recommendations to the Court. These recommendations may cover parenting schedules and the viability of either shared parenting or primary care. Often the child’s lawyer will provide an update to the parents or to the parents’ lawyers. The updates will highlight impressions of the child, statements the child has made and areas of concern noted by the child’s lawyer.
These updates are verbally given or written out by the child’s lawyer. The content of these updates can be used by either parent or the child’s lawyer as evidence in Court.
If you have any questions, remember we are a consultation away! Please note there is a fee for this consultation, and we may be reached at (780) 761-1070 or fill out our consultation form on this website.
We are happy to help answer any questions you may have!
Author: Ning Ramos, Barrister and Solicitor