“The importance of taking children’s interests and views into account in decisions involving them was well summarized by Audet J. in N.H. v. J.H. , 2018 ONSC 4436, as follows at para 44:
A child’s views and preferences with regards to decisions affecting him or her, while clearly a factor to be considered since the coming into force of the Children’s Law Reform Act, have in recent years taken a much more prominent role than they ever did in parenting disputes. This is evidenced by the recent changes in the Child, Youth and Family Services Act, S.O. 2017, c. 14, sch. 1, which, while not applicable here, have put a child’s views and wishes at the top of the list of factors to be considered when assessing a child’s best interests. The importance of children’s right to express their views and preferences, and for those to be considered by the court in making decisions affecting them, has been discussed at length in various recent decisions including by Justice Kukurin in Children’s Aid Society of Algoma (Elliot Lake) v. P.C.-F., 2017 ONCJ 898, and is further demonstrated by the development in Ontario of the Katelynn’s Principle (Ontario Bill 57) and the Voice of the Child’s Reports which are now available as part of the services offered by the Office of the Children’s Lawyer.
In Carter v. Mackie, 2017 ONCJ 541, Justice Jane Caspers described Katelynn’s Principle” as follows:
134 On April 29, 2016, the Coroner’s Jury, at the end of the Inquest into the Death of Katelynn Angel Sampson, cited as its first recommendation what has come to be known as “Katelynn’s Principle”.
“Katelynn’s Principle” states that
“A child must be at the centre where they are the subject of or receiving services through the child welfare, justice and education systems.
A child is an individual with rights:
* Who must always be seen
* Whose voice must be heard
* Who must be listened to and respected
…
Actions must be taken to ensure the child who is capable of forming his or her own views is able to express those views freely and safely about matters affecting them.
A child’s view must be given due weight in accordance with the age and maturity of the child…”
135 Children involved in any type of family case – whether to remove them into care or disputes about child care and parenting arrangements following divorce or separation – must be able to have their views heard when decisions are made that will affect them.
The views and preferences of the child have long been a factor in the determination of parenting issues. However those views and preferences are but one of many factors in the determination of a child’s best interests in judicial parenting decisions. The numerous factors that a court may consider in determining how much of a child’s wishes should guide the court’s decision making were summarized by the Ontario Court of Appeal in Decaen v. Decaen, 2013 ONCA 218 as follows:
42 In assessing the significance of a child’s wishes, the following are relevant: (i) whether both parents are able to provide adequate care; (ii) how clear and unambivalent the wishes are; (iii) how informed the expression is; (iv) the age of the child; (v) the maturity level; (vi) the strength of the wish; (vii) the length of time the preference has been expressed for; (viii) practicalities; (ix) the influence of the parent(s) on the expressed wish or preference; (x) the overall context; and (xi) the circumstances of the preferences from the child’s point of view: See Bala, Nicholas; Talwar, Victoria; Harris, Joanna, “The Voice of Children in Canadian Family Law Cases”, (2005), 24 C.F.L.Q. 221.
A child’s views and preferences gain greater weight as the child gets older and more mature. As Sheard J. stated in Clark v. Moxley, 2017 ONSC 4971 at para. 50, in regard to the wishes of a 12 year old boy: “…it is the duty of this Court to determine Noah’s best interests, even if to do so may not align with his stated views and preferences.” In Kemp v Kemp, [2007] OJ No 1131 (S.C.J.), Blishen J. stated:
The weight to be given to the child’s stated preference depends on the facts of the case, and is a function of age, intelligence, apparent maturity and the ability of the child to articulate a view. See Stefureak v. Chambers, 2004 CanLII 34521 (ON SC), [2004] O.J. No. 4253.
As well, courts must always assess the independence of the views that children express. If they are not independent, they will be given little weight (Fielding v. Fielding, 2013 ONSC 5102 at para. 168, affd., 2015 ONCA 901).”