At what age do the courts listen to children about where they want to live?

The law regarding the views of the children is clear. Children must be listened to when decisions are made regarding their custodial arrangements once they reach a certain age.

In L.E.G. v. A.G. [2002] B.C.J. No. 2319 April 24, 2002, the court determined that in order to ascertain whether an interview of the child in question is necessary, the court should consider what other options are available and the appropriateness of those options as an alternative in the particular case before the court.

The case law is clear that the views of children are supposed to be given great weight once children are approximately 11 years old. As children get older, and also depending upon their emotional maturity, their opinions are often given great weight.

In Vedo v. Vedo [1994] B.C.J. No. 46 B.C.S.C. , Baker J. held that the child’s preference was entitled to careful consideration and due weight. Although it is not conclusive, it is one of the factors to be taken into account in determining what is in his or her best interests.

It is important to note, however, that this is not the only factor put before the court. There may also be many other factors in a case that support what is in a child’s best interest despite their own view.

In Russell James Nielson V. Margaret Ann Neilson, [1981] B.C.D. Civ. 1546-01 B.C.S.C., the decision to award custody to the mother was based firstly on the expressed wishes of the 14 year old son.

In Arnelda Leone Zelznik v. Thomas Michael Zeleznik [1988] B.C.D. Civ. 1546-03 B.C.S.C., custody of the son was placed with the father and custody of the daughter was placed with the mother. In coming to this decision the court gave consideration to s. 24 of the Family Relations Act, including the health and emotional well-being of each child and their special needs. In addition, consideration was also given to the children’s “own views, the love and affection that exists between the children and their parents and relatives and friends, the education of the children, and the capacity of each parent to exercise custodial rights and duties.”

In O’Connell v. McIndoe [1998] B.C.D. Civ. 360.35.30.60-03 it was held that in order for custody orders relating to adolescent children to be practical, they must reasonably conform with the wishes of the child.

In N (S.D.) v. (N. (M.D.) [1998] B.C.D. Civ. 360.35.30.60-61 B.C. S.C. the court held that if the children who are the subject of a custody dispute express a desire to the maker of a custody and access report to live with one of their parents, and the court determines that the underlying reasons for their views are sound and not merely the desire of young adolescents for what they perceive to be a more interesting environment with few restrictions, then the court will give considerable weight to the children’s wishes.

Lately, some litigants have been retaining a third party to conduct a “Views of the Child Report.” This kind of report is different than a custody and access report as set out in section 15 of the Family Relations Act, in that it is much less detailed and often much less expensive and time-consuming.

This is sometimes an effective and less intimidating way for a child’s views to be represented before the court.