The Voice of the Child: Kingdon v. Kramer (Part 2)

Can a child decide where he wants to live?

In our previous post, Kayla Sanger reviewed the facts and the positions of the parties in the case Kingdon v. Kramer.  This is a high conflict case involving a child over the age of 18.  The mother had custody of the child, but the child lived with the father.  The father wished to move to the United States with the child and requested to do so on an interim basis, pending the outcome of the trial.

Can the child make his own decision?

The court has jurisdiction to make custody and access orders concerning children over the age of the majority in two different instances: 

  1. If the child is a “child of the marriage” – According to the Divorce Act, orders can be made if the child has an illness, disability or is otherwise unable to withdraw from the care of their parents given that they would be unable to obtain the necessities of life on their own. 
  2. If the ‘child’ lacks legal capacity – The Substitute Decision Makers Act also presumes that a ‘child’ over the age of 18 is capable of entering into contracts and giving consent regarding their personal care. Anyone rebutting this presumption has the onus of proving why the child lacks capacity.

The court was satisfied that at trial, there would be at least a possibility that the child was unable to make decisions relating to his personal care.  In addition to the child’s unique physical needs, there was some evidence from medical records that the child’s functioned intellectually at an elementary school level.  Ultimately, the child was treated as a ‘child of the marriage’.

What is in the child's best interests?

Despite the tumultuous relationship with his mother and the child’s expressed wishes to reside with his father, the court ordered against the child moving to the US on an interim basis.  The mother’s proposal was accepted and the child was ordered to live with a third party who was skilled in managing his disabilities.  This was an interim order, meaning that these issues would be revisited at trial. 

The court considered the best interests of the child, including the wishes of the child, and cited the following factors contributing to their decision:

  • The child would lose OHIP and ODSP benefits if he moved to the US. The father did not provide any proof that comparable financial supports were available to the child. 
  • The child would lose contact with doctors and supports who provided him with specialized care for his disabilities since childhood.  There was no evidence that medical providers in the US were willing to accept the child and provide comparable care.
  • The child would lose his job in Ontario. There was no evidence provided to demonstrate that comparable work was available in the US. 
  • This was an interim order, and there was a risk that the child would not return to Canada.

Issues of custody and access can be quite complicated. There are many factors to consider when determining what is in a child’s best interests.  This case provides a good example of how different factors are weighed against each other to reach a decision, and how the wishes of a child is not always the end of the discussion of their best interests.  

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