The Voice of the Child in Ontario Family Law

Does a Child Get to Choose Which Parent They Live With?

It is a common assumption that once a child reaches a certain age — often said to be twelve, or sixteen — they simply get to decide which parent they will live with. That is not an accurate picture of how Ontario family law works. Under the federal Divorce Act, a child's views and preferences are one of several factors a court must consider when deciding what arrangement is in the child's best interests, and Ontario's own parenting legislation, the Children's Law Reform Act, contains a closely parallel factor for cases that proceed under provincial rather than federal law.

A child's stated preference is taken seriously and can carry real weight, particularly as a child gets older and more able to explain their reasons. But it is not treated as a vote that settles the question on its own, and a child — especially a younger one — is not expected to shoulder the responsibility of deciding alone. The law asks courts to give the child's views "due weight" in light of the child's age and maturity, alongside every other relevant factor, rather than to simply defer to whatever the child says.

The Child's Views as One Factor Among Many

The child's views and preferences sit within a much larger best-interests test that considers things like each parent's ability to care for the child, the child's existing relationships and routines, each parent's willingness to support the child's relationship with the other parent, and the child's overall safety, security, and well-being. This page focuses specifically on how a child's views reach a decision-maker in the first place. For the full picture of how all of these factors fit together, see Best Interests of the Child in Ontario Family Law.

It is worth underlining that a child's safety and well-being are generally treated as the paramount consideration in this analysis. A child's stated wish to spend more time with a particular parent, for example, would be weighed against any safety concerns involving that parent, rather than followed automatically.

How a Child's Views Are Typically Learned

Because a child is not simply asked to testify in open court or to announce a preference in front of both parents, Ontario family law relies on a small number of more indirect mechanisms to learn what a child thinks and feels. Depending on the case, these can include:

• Evidence from the parents themselves, describing what the child has said at home — generally the least direct and least independent source, since it comes filtered through a parent who has their own interest in the outcome.
• A lawyer for the child, most often arranged through Ontario's Office of the Children's Lawyer, who can speak with the child directly and represent the child's views and interests in the proceeding.
• A Voice of the Child Report or similar report, prepared by a neutral, trained professional who meets with the child and reports back what the child said.
• A judge speaking with the child directly, sometimes called a judicial interview. Ontario law does permit this in some circumstances, but available research suggests it happens relatively rarely in practice, and it is generally approached with particular caution where a child is younger.

Whichever mechanism is used, the general aim is to learn what the child thinks without putting the child in the position of testifying against a parent, being cross-examined, or being asked to choose sides in front of the people involved.

The Office of the Children's Lawyer (OCL)

The Office of the Children's Lawyer (OCL) is an independent office within Ontario's Ministry of the Attorney General. It can become involved in family law cases — as well as child protection and some estates matters — to represent the interests of children under 18. In parenting disputes, the OCL's involvement generally takes one of two forms, or sometimes both: a lawyer who represents the child directly in the proceeding, or a clinical investigator (typically a social worker) who prepares a report with observations and, in many cases, recommendations for the court.

Involvement by the OCL is not automatic and is not available in every case. Generally, a judge must first request the OCL's involvement, and the OCL then decides for itself whether to accept the case, based on its own criteria, available resources, and the nature of the dispute — cases involving significant conflict, allegations of abuse or neglect, mental health concerns, or a child expressing strong views are among the situations where OCL involvement is more likely to be requested. Because the OCL sets its own intake criteria and these can change, confirm current practice directly with the OCL rather than assuming a particular case will qualify.

Having a lawyer through the OCL is different from a child testifying. The lawyer speaks with the child, gathers information, and advocates based on what is learned, but the child does not generally appear in court or give evidence directly.

Voice of the Child Reports

A Voice of the Child Report is generally prepared by a neutral, trained professional who meets with a child and records the child's own thoughts, feelings, and preferences about their family situation. These reports are typically described as non-evaluative — meaning that, unlike a fuller assessment, a Voice of the Child Report is not generally expected to include recommendations, diagnoses, or an opinion about what parenting arrangement should follow. It simply documents what the child said.

A Voice of the Child Report can generally be requested by a parent, a lawyer, or a judge during a court proceeding, and can also be arranged outside of court entirely, for example as part of mediation, where both parents agree to it. There is no single fixed age requirement; suitability instead tends to depend on the child's maturity and ability to express their thoughts. These reports are also generally considered less appropriate in some situations — for example, where there are allegations of family violence, a significant power imbalance between the parents, allegations of one parent influencing the child against the other, or where a child is too young to meaningfully express a view. Whether a Voice of the Child Report is a good fit for a particular family is something to discuss with a qualified professional.

Does Age Matter?

Age matters, but not in the form of a hard legal cutoff. Neither the Divorce Act nor Ontario's parenting legislation sets a specific age at which a child's preference becomes binding or automatically controlling. Instead, the law directs decision-makers to give the child's views "due weight" based on the child's age and maturity together — a mature twelve-year-old's clearly and consistently expressed wishes may carry more practical weight than a much younger child's passing comment, but this is always assessed on the specific child and circumstances, not by a fixed rule.

In practice, the closer a child is to the age of majority, the more difficult it can become to enforce an arrangement the child strongly resists — but this is a practical reality rather than a formal legal threshold, and it does not mean a teenager's preference simply overrides everything else in the analysis.

Protecting Children From the Conflict Itself

A recurring theme across these mechanisms is trying to learn what a child thinks without exposing the child to the conflict between the parents any more than necessary. Asking a child directly to "pick" one parent over the other, particularly in front of both parents, is generally understood to risk real harm to the child and to the child's relationship with both parents — which is a large part of why Ontario family law relies on indirect mechanisms like a lawyer for the child or a neutral report, rather than simply putting the question to the child openly.

Professionals involved in these processes — whether through the OCL, a Voice of the Child Report, or a broader assessment — generally aim to create a setting where a child can speak candidly, away from parental pressure on either side. Parents considering any of these options, or a broader parenting dispute generally, may also want to review how parenting plans and decision-making responsibility are generally structured, since a clearer overall plan can sometimes reduce how often a child's views need to be formally gathered at all.

Frequently Asked Questions