In the case of Reid v. Reid, 2019 ONSC 5621, the parents and their 16-year-old child brought a Motion to Change the child’s residence.

Background

The parties have three children, among whom the 16-year-old child is the oldest. The parties were living in Burlington when they separated in April 2014. The mother then moved to Toronto with the children and the father moved to Hamilton to reside with his new partner.

A court order was made after a trial in 2016 that the children will primarily live with the mother and have access to the father on alternate weekends. The father had engaged in a campaign to alienate the children from the mother since separation. In August 2019, the 16-year-old child refused to return to live with the mother after spending an extended holiday period with the father, which prompted the Motion to Change.

Analysis

Per section 17(5) of the Divorce Act, to grant a Motion to Change, the Court must satisfy itself that a change in the condition, means, needs or other circumstances of the child has occurred since the making of the custody order. In making an Order on a Motion to Change, the Court shall consider only the best interest of the child, under section 24(2) of the Children’s Law Reform Act:

“The court shall consider all the child's needs and circumstances, including:

• the love, affection and emotional ties between the child and,
  • each person entitled to or claiming custody of or access to the child,
  • other members of the child's family who reside with the child, and
  • the persons involved in the child's care and upbringing;
• the child's views and preferences, if they can be reasonably ascertained;
• the length of time the child has lived in a stable home environment;
• the ability and willingness of each person apply for custody of the child to provide the child with guidance and education, the necessities of life and any special needs of the child;
• the plan proposed by each person applying for custody of or access to the child for the child's care and upbringing;
• the permanence and stability of the family unit with which it is proposed that the child will live;
• the ability of each person applying for custody o or access to the child to act as a parent; and
• the relationship by blood or through an adoption order between the child and each person who is a party to the application.

In this case, the Court considered the child’s stated preferences when assessing her best interest but acknowledged that her views and preferences are not the only relevant factor. The Court found that her preference to live with her father was the result of a campaign of parental alienation. The father encouraged the child to disobey court orders and act out against the mother.

After considering all the factors together, the Court found that the child has lived with her mother since separation and a drastic change in residence would change her entire support system. With respect to the father’s willingness to provide guidance, he has failed to take any steps to correct the damage done by parental alienation and has established no real plan of care for the child. As such, the Court held that the child shall reside with the mother and attend school in Toronto, pending a trial of the matter.

Summary

While both the daughter and the father believed that she could make her own decisions at the age of 16, this case clearly demonstrates that a teenage child is not always able to dictate where they live, especially not when their views and preferences are heavily influenced by the input of one parent.

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