1. Is There an Age When a Child Can Decide?

2. What Does Alberta Law Say?

3. How Are a Child’s Views Presented to the Court?

4. How Much Weight Will the Court Give a Child’s Preference?

5. Can a Child Refuse to Visit the Other Parent?

6. Changing an Existing Parenting Arrangement

7. What Parents Should Avoid

8. When Should You Speak With a Family Lawyer?

9. How Bridgestone Law Can Help

   
   

Introduction

When parents separate, a child may say that they want to live primarily with one parent.

Sometimes the preference is connected to school, friends, activities or a closer relationship with one parent. In other cases, it may arise from conflict in one home, different household rules or concerns about safety.

Children in Alberta do not automatically gain the legal right to decide where they will live when they reach a particular age. There is no rule that allows a child to make the final decision at 12, 14 or 16. A child’s views and preferences are one factor in determining their best interests, and the weight given to those views generally increases with the child’s age, maturity and ability to express an independent and informed preference.

Parents may agree to adjust their parenting arrangements in response to a child’s wishes. If they cannot agree, the court may decide what arrangement is in the child’s best interests.

The child’s preference can be important, particularly for a mature teenager, but it does not automatically control the outcome.

Is There an Age When a Child Can Decide?

There is no fixed age in Alberta at which a child can unilaterally choose which parent to live with.

A common misconception is that a child can decide at age 12. Although the views of a 12-year-old may receive meaningful consideration, the child’s preference remains part of a broader best-interests assessment. The same principle applies to teenagers.

Age alone does not determine how much weight a court will give a child’s wishes. Two children of the same age may have very different levels of maturity, understanding and independence.

The court may consider:

• whether the child understands the proposed arrangement;

• how consistently the child has expressed the preference;

• the reasons for the preference;

• whether the preference appears independent;

• whether a parent has pressured or influenced the child;

• how the arrangement would affect the child’s stability;

• whether the child understands the practical consequences; and

• whether the preferred arrangement would meet the child’s physical, emotional and psychological needs.

A mature teenager’s clearly expressed and reasonable preference may carry considerable practical and legal weight. Courts also recognize that forcing an older teenager to follow an arrangement they strongly oppose can be difficult. However, this does not give the teenager an unrestricted right to disregard a parenting order.

What Does Alberta Law Say?

Parenting decisions are based on the best interests of the child.

For married or divorced parents proceeding under the federal Divorce Act, the court must consider only the child’s best interests when making a parenting order. Primary consideration is given to the child’s physical, emotional and psychological safety, security and well-being.

The Divorce Act specifically requires the court to consider the child’s views and preferences, giving due weight to the child’s age and maturity, unless those views cannot be ascertained.

The court must also consider factors such as:

• the child’s age and stage of development;

• the child’s need for stability;

• the strength of the child’s relationship with each parent;

• the child’s relationships with siblings and other important people;

• the history of the child’s care;

• each parent’s plans for the child;

• each parent’s ability and willingness to meet the child’s needs;

• each parent’s willingness to support the child’s relationship with the other parent;

• the parents’ ability to communicate and cooperate;

• the child’s cultural, linguistic, religious and spiritual upbringing; and

• the presence and effect of any family violence.

Alberta’s Family Law Act, which may apply to married or unmarried parents, similarly requires parenting decisions to be made according to the child’s best interests. The child’s views and preferences may be considered where appropriate, taking the child’s age and maturity into account.

The question is therefore not simply, “Which parent did the child choose?” The court must determine why the child has expressed that preference and whether the proposed arrangement supports the child’s overall well-being.

How Are a Child’s Views Presented to the Court?

Children are not ordinarily expected to choose between their parents in open court. Requiring a child to testify can place the child in the middle of the conflict and create a sense that they are responsible for the outcome.

Depending on the circumstances, a child’s views may be communicated in several ways.

Through the Parents’ Evidence

A parent may give evidence about statements made by the child. However, this evidence can be disputed and may raise concerns about context, reliability or influence.

Each parent may report a different version of what the child said. Courts are therefore cautious about relying solely on one parent’s account of the child’s wishes.

Through a Voice of the Child Report

A Voice of the Child report may be prepared by a qualified neutral professional who interviews the child and reports the child’s views and preferences.

The professional does not ask the child to make the legal decision. The purpose is to give the court a more neutral account of what the child has expressed, often together with relevant context about how firmly and consistently those views are held.

The availability, form and cost of these reports can vary. Parents should obtain legal advice before arranging a report because not every parenting dispute requires one, and a privately obtained report may not necessarily be accepted for the purpose a parent intended.

Through a Parenting Evaluation

In particularly difficult parenting disputes, the court may order a more comprehensive parenting evaluation under Alberta’s Family Law Practice Note 8.

A parenting evaluation is broader than simply recording the child’s wishes. It may include interviews with the parents and children, observations, home visits, document review and interviews with teachers, counsellors or other relevant people.

The parenting expert provides independent information and opinions to assist the court in determining arrangements that serve the child’s best interests. These evaluations are generally reserved for cases involving a serious parenting impasse and can be expensive and time-consuming.

Through Other Reliable Evidence

The court may also receive relevant evidence from teachers, counsellors, medical professionals or other people who know the child. The way this information can properly be introduced depends on the proceeding and the applicable rules of evidence.

Parents should avoid repeatedly questioning their child or asking professionals to take sides. This can increase the child’s stress and may affect the reliability of the information.

How Much Weight Will the Court Give a Child’s Preference?

The amount of weight depends on the individual child and the surrounding circumstances.

A younger child’s wishes may be considered, but the court will usually examine them cautiously. Younger children may have difficulty understanding long-term consequences and may be more vulnerable to pressure or attractive short-term promises.

An older child’s views may carry greater weight when they are:

• clear and consistently expressed;

• based on understandable and practical reasons;

• informed by the realities of the proposed arrangement;

• free from pressure or manipulation;

• compatible with the child’s safety and well-being; and

• consistent with the child’s important relationships and developmental needs.

For example, a mature 16-year-old may want to live primarily with one parent because that home is closer to school, employment, friends and established activities. That preference may be highly relevant.

By contrast, a younger child might prefer one home because it has fewer rules, later bedtimes or unlimited electronic access. The court may listen to the preference without concluding that the requested arrangement is in the child’s best interests.

A preference based on fear, abuse or unsafe conditions requires careful and prompt attention. It should not be dismissed as ordinary resistance to parenting time.

Can a Child Refuse to Visit the Other Parent?

A child’s refusal does not automatically cancel a parenting order.

Parents are generally expected to comply with an existing order until it is changed by agreement or by a further court order. A parent should not simply announce that the child has decided not to attend parenting time, particularly where the parent has not made reasonable efforts to encourage compliance.

At the same time, the appropriate response depends heavily on the child’s age, maturity and reasons for refusing. Physically forcing an older child into a vehicle is rarely a constructive solution. A parent should try to understand what is happening and respond in a way that protects the child without unnecessarily damaging the child’s relationship with either parent.

Resistance may arise from:

• ordinary transition difficulties;

• conflict over rules or discipline;

• disrupted routines;

• a new partner or blended-family issue;

• anxiety or mental-health concerns;

• loyalty conflict between the parents;

• pressure or influence from a parent;

• damaged communication with one parent; or

• family violence, abuse or another safety concern.

If the refusal continues, parents may need assistance from a family lawyer, mediator, counsellor or another qualified professional. Where there is a credible and immediate safety concern, obtaining legal advice quickly may be necessary.

Changing an Existing Parenting Arrangement

A child’s changing views do not automatically amend an existing parenting order or agreement.

If the parents agree that a new arrangement is appropriate, they should document the change clearly. Depending on the circumstances, they may wish to update their parenting agreement or obtain a consent order so that the legal documents reflect the arrangement being followed.

If the parents do not agree, the parent seeking a change may need to apply to vary the existing order. When a final parenting order is already in place, the court will generally require evidence of a material change in the child’s circumstances before reconsidering the arrangement.

A child growing older and developing a strong, mature and sustained preference may contribute to a material change. However, whether it is sufficient depends on the full circumstances. The court must still determine whether the requested change is in the child’s best interests.

Parents should not encourage a child to believe that expressing a preference guarantees the desired result.

Practical Examples

A Teenager Wants Greater Stability

A 15-year-old has been moving between homes every few days. As schoolwork, sports and a part-time job become more demanding, the teenager asks to live primarily with one parent during the school week while continuing regular weekends and holidays with the other.

The child’s age, maturity and practical reasons may give the preference significant weight. The court would still consider the quality of the child’s relationship with both parents, the proposed schedule and whether the arrangement supports the child’s overall stability.

A Child Prefers the Home With Fewer Rules

A 10-year-old says they want to live with one parent because that parent allows later bedtimes, fewer chores and unrestricted gaming.

The court may consider what the child has said, but the preference may receive limited weight if it is based primarily on avoiding reasonable structure. The child’s developmental needs and the ability of each parent to provide appropriate care remain central.

A Child Expresses Fear

A 13-year-old begins strongly resisting time with one parent and describes violence, threats or substance misuse in that home.

The child’s statements should be taken seriously. The situation may require immediate legal advice, safety planning and appropriately gathered evidence. A parent should avoid conducting repeated interviews of the child, which can increase distress and complicate later evidence.

What Parents Should Avoid

Asking the Child to Choose

A child should not be told to decide which parent “wins.” Even when a child has strong views, the adults remain responsible for making or seeking an appropriate parenting arrangement.

Promising a Particular Outcome

A parent should not tell the child that the court will follow their wishes. The court must consider all relevant best-interests factors.

Coaching or Pressuring the Child

Repeatedly discussing the case, criticizing the other parent or encouraging particular statements can place the child in a loyalty conflict. It may also cause the court to question whether the child’s preference is independent.

Ignoring an Existing Order

A parent should not treat a child’s preference as an automatic amendment to a court order. If the arrangement is no longer workable, it should be addressed through an agreement or court application.

Dismissing the Child’s Concerns

Not every refusal is manipulation or defiance. Parents should listen calmly and consider whether the child is describing a genuine emotional, practical or safety concern.

Using the Child as a Messenger

Communications about schedules, court proceedings and financial issues should remain between the adults whenever possible. Children should not be asked to deliver messages, gather information or report on the other household.

When Should You Speak With a Family Lawyer?

Legal advice may be helpful when:

• a child persistently refuses parenting time;

• the parents disagree about changing the child’s primary residence;

• a mature teenager is no longer following the existing schedule;

• one parent believes the child is being pressured or influenced;

• the child reports violence, abuse, substance misuse or unsafe conditions;

• a parent wants to vary an existing parenting order;

• the parents are considering a Voice of the Child report or parenting evaluation;

• a proposed change would require the child to change schools or communities; or

• one parent is planning to relocate with the child.

A lawyer can explain how the child’s views may be considered, whether a formal change is required and which process is proportionate to the family’s circumstances.

How Bridgestone Law Can Help

Bridgestone Law assists parents in Calgary and throughout Alberta with parenting arrangements, parenting-time disputes and applications to change existing orders.

We can help you understand how your child’s age, maturity and preferences may affect the legal analysis. We can also help you consider negotiation, mediation or court proceedings and determine how the child’s views may be presented without placing unnecessary pressure on the child.

If your child has expressed a strong preference about where to live, careful legal guidance can help you respond in a way that respects the child’s voice while keeping their best interests at the centre of the process.