Pursuant to section 24 (1) (2) (b) of the Children’s Law Reform Act, the merits of an application in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4).
Section 2 of the Act deals with what is in the best interest of the child and mandates the court to consider all the child’s needs and circumstances including, the child’s views and preferences, if they can reasonably be ascertained.
The older and mature the child, the more the child’s views can reasonably be ascertained. For example, a 15 year old that is bright and well adjusted, his or her views can be given great weight if he or she expresses not to be in contact with the other parent.
A judge can also give great weight to a mature 15 year old’s wishes with respect to the timing and duration of access visits with the other parent.
In some cases, despite the child being older or mature, the courts are unable to ascertain the children’s true views and preferences due to parental or caregiver’s undue influence.
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