Children are often at the heart of disputes with respect to a divorce or separation in the case their parents were never married, custody and parental authority among other parental conflicts. A child can express their preferences and opinions with respect to the post-separation/divorce situation of their parents and it is the Court’s role to make sure that any decision affecting the child is taken in consideration of their best interest in family law matters.
In Quebec, every decision made by the parents and the judge shall be taken in the best interest of the child and with respect to their rights (art. 33, al.1 C.c.Q.). In addition to the moral, intellectual, emotional and physical needs of the child, consideration is also given to the child’s age, health, personality and family environment, and to all other aspects of the situation (art. 33, al.2 C.c.Q.). These decisions would include their education, their medical needs, their supervision, and their parenting time schedule. Furthermore, depriving a child of their rights provided for by law is contrary to their best interest (Droit de la famille – 1914).
The main objective is to ensure that the child is protected and taken care of. As a child grows older, the judge may consider their opinion as well. The judge can decide that a child’s attorney should be appointed, in order to give the child an opportunity to express their concerns and wishes as stated in article 34 of the Civil Code of Quebec. Appointing representation for the child should avoid testifying at trial. They have the right to be heard if their age and power of discernment permit.
Additionally, the judge can request a psychosocial evaluation of the parents’ emotional, psychological and mental stability by a professional. In this case, a social worker or psychologist will assess the parents’ capacity to care for the child and encourage their development as a parent (Young c. Young). The evaluation done by the professional will be taken into consideration by the judge when rendering a decision with respect to the couple’s child(ren); however, the judge is not bound by the conclusions of the expertise.
There are certain factors that affect whether or not a child’s wish can affect the decision-making process. The significance of the child’s preferences would greatly depend on the age of the child. As a minor, the child’s wish is not given much weight and the parents essentially decide for them. Between 8 and 11 years old, the child’s wish is carefully considered. At 12 years and older, at the age of adolescence, the child’s wish plays a more significant role in the decision-making process, however, only if the child’s wish is in line with their best interest. A judge may appoint a child attorney to make sure their rights and interests are well-represented. For example, the child may decide they want to live with one parent and not the other, they may decide that they want to spend equal time with both parents, etc.
The jurisprudence establishes that a child’s wish may be determinant when establishing parenting time, even more so if the child is 12 years of age or older. However, the Court is not bound by it and may also consider other criteria. The Court of Appeal in the decision, Droit de la famille – 142142, speaks to this point and highlights that while it is true that the courts generally give significant, even decisive, weight to the wishes expressed by a child aged twelve and over with respect to parenting time, this is not the case when other factors strongly indicate that it is not in the child’s best interests to follow through on his or her wishes.
As the situation evolves, the decisions rendered can be revisited in the future as the child grows older. Other than the age of the child, another factor to be considered is the reason for their opinion. A child’s opinion can be affected by their heightened emotions during a difficult time in their life or even the influence of one parent on their decision. For instance, in the event of a contentious divorce, one parent may try to convince the child to stay with them and avoid communication with the other parent. Parents should avoid alienating behaviour at all costs, as it causes irreparable harm to the child to involve them in conflict. The alienating parent could try to manipulate the young child by making promises to them, showering them with gifts, taking them on vacation, while criticizing the other parent. This type of behaviour should be brought to the attention of a judge when decisions are made with respect to parenting time.
At the end of the day, any decision made by a parent, teacher or judge with respect to a child should be made in the best interest of the child and each child has the right to be heard as accounted for in Quebec legislation and jurisprudence. To learn more, do not hesitate to consult with a family lawyer.
