When a couple separates, there often is a plethora of uncertainties to deal with, financial, emotional and practical. Where a child (or children) will reside and with whom is top of the mind for parents when separating.
It is this question that often poses the biggest dilemma for parties who cannot see eye to eye on where their child should live following separation. In the legal world, we refer to this as residency. Residency is used in addition to the terms custody, guardianship and access to simply describe where the child will live and does not per se delineate rights and responsibilities like the terms custody and guardianship do. This dilemma is often compounded when the child him or herself states a preference as to where he or she wishes to live and one or the other parent does not agree. The answer to the question of whether or not a child’s wish about where he or she will reside “counts”, is dependent on the child’s age and level of maturity.
When the court is asked to make a decision as to the residency of a child, the judge is presented with positions of each spouse. Perhaps one spouse is looking to have the child reside with him or her primarily (primary residence) and have access or parenting time with the other spouse on a proposed and often structured schedule. Alternatively, the other spouse may be seeking to have the child reside equally between both houses (shared residency). When the court is making this decision, it must make an order that it determines is in the ‘best interest of the child’. There are several factors outlined in our legislation that the court considers when making this determination and the views of the child, where appropriate, is one of them.
Research and caselaw in this area point to the importance of the child’s voice being heard when making a decision as to residency. However, a child’s view as presented by one parent or the other may be met with skepticism by the court as there may be a tendency to have one spouse indicating that the child favours his or her position and vice versa. In order to prevent a child being unfairly involved in the legal matters of his or her parents, the child may attend a “Views of the Child” or “Hear the Child” interview. This is where the child meets with a qualified interviewer (often a duly trained family law lawyer or certified counsellor) and is objectively asked a series of questions to help determine the views of the child with respect to the issue at hand (in many cases residency). This interviewer is then asked to produce a “report” outlining the interview which can be used in court to provide insight into the child’s wishes.
Depending on the maturity of the child, these interviews can be done with a child as young as 5 or 6. Understandably, the view of the child of this age must be viewed with caution and is generally weighted accordingly by age against all of the other factors for the best interest of the child. However, as a child gets older, particularly into his or her teens, his or her views will be given more weight by a judge as a child of this age is often able to understand the impact of a decision regarding his or her residence and how it will impact the child’s schedule.
Ultimately, these interviews provide the parents, the lawyers and the court with much needed insight into the wishes of the child and provide the child with sense that his or her voice was heard in the process in a neutral way.
Taryn can be reached at 250-869-1265 or at [email protected]
