What is the impact of a child's preferences on a custody decision?
In this post, University of Ottawa law student and Fresh Legal summer intern, Kayla Sanger, discusses the Ontario Superior Court of Justice’s decision in Kingdon v Kramer. This case involves an application by the child’s father for an interim order permitting him to move the child out of country. The court had to consider not only the best interests of the child, but also had to determine whether they had jurisdiction to make a custody order as the child was over 18 years old.
Kingdon v. Kramer is a high conflict case involving a child over the age of majority. Ordinarily, the court only has jurisdiction to make custody and access orders for children under the age of 18. In this case, the child was 19, but suffered from serious physical and developmental disabilities. The court was required to consider custody and access since the child’s capacity to make decisions relating to his personal care was called into question.
While the child’s mother had a previous order for custody, her and the child had an admittedly fractured relationship. The child lived with the father until he remarried and moved to the US to live with his new partner. At the time of the application, the father was awaiting visas for himself and the child so they could live together in the US. The child was residing with a relative in the meantime.
The Positions of the Parties
One factor in determining the best interests of the child is the child’s view and preferences. The child expressly stated not only that he wished to live with this father, but also that he would run away if ordered to live with his mother. The child confided in the judge that he would not return to Canada if an interim order permitted him to live in the US with his father. This presented some concern for the judge, who stated that the child would need to return for trial and other occasions at the court’s discretion.
The father argued that, in the absence of evidence to the contrary, the child should be presumed to be capable of making his own decisions due to given the child’s age.
The child’s mother maintained that the child did not have the capacity to decide for himself, and wished to retain custody. Her position was that the child should reside with a third party and then live with her after reintegration therapy to mend their troubled relationship.
In our next post, we will explore whether the court had jurisdiction to make an Order as well as their ultimate decision.