Can children of a certain age make their own decisions?
November 19, 2022
The Short Answer is – Yes!
Children are able to make their own decisions regarding parenting as they become older. The typical age when this begins is between twelve (12) and thirteen (13) years old. However, age is merely a proxy for a child’s stage of development or level of maturity. Children may be permitted to make their own decisions where they are younger and have a higher level of maturity. Similarly, children may not be permitted to make their own decisions where they are older but the decisions they are making are beyond their level of maturity.
Daniels v Stemberga 2022 ONSC 6263
This is exactly what happened in the recent case of Daniels v Stemberga 2022 ONSC 6263. In Daniels the Honourable Justice Somji was faced with the difficult decision of whether to force a 12 year-old boy to see his mother, who was dying of breast cancer. The parents had a relationship that was “beyond toxic” and the child despised the mother. The court found that the child’s beliefs were likely caused by:
- Being exposed and aware of conflicts between his parents at a young age (the exposure having been continuous);
- Historical abuse involving his mother (some of which had been verified by the Children’s Aid Society); and
- Alienation by the father (some of the evidence supported this finding).
The Honouralbe Justice Somji made an Order that the boy should have at least one visit with his mother before her death. In making the Order he put emphasis on section 24(3)(a) of the Children’s Law Reform Act, and specifically considered the child’s needs, given the his age and stage of development. The judge wrote at paragraph 30:
- 30 Maintaining the child’s emotional, mental, and physical stability as he proceeds into his teenage years is a best interest factor that must be considered. Having said this, J.D. is only 12 years of age. He is not an emotionally mature adult. He does not, and cannot be expected to, have any insight into the complexities of arriving at the truth in high conflict situations or the importance of forgiveness and reconciliation. While I do not believe he will be able to reconcile his feelings of hostility towards his mother through a visitation at her death bed, and in fact I expect it may take years for this child to heal emotionally, I find that for the sake of his long term emotional and mental development, it is in his best interests to see, speak to and listen to his mother at least once before her death. One can only hope that the experience, whether now or at a later date, will allow him to start processing and coming to peace with his complex relationship with his mother.
Do you have a child that is making decisions beyond their level of maturity? Or, do you have a child that should be able to make their own decisions? If so, Contact us now to schedule a free consultation with one of our experienced lawyers.
This article is authored by Erika MacLeod, an experienced Family Lawyer who is ready to assist you with any question you may have regarding your separation.
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