The expressed intention of a child over 12 years old to live with one parent rather than the other is a significant factor.
Children, beyond the daily concerns, are a source of joy that, from a peaceful path, can sometimes quickly transform into a bumpy road, dotted with roller coaster-like disputes and settling of scores between parents.
Thus, a couple who have lived together for more than fifteen years separate and, by mutual agreement, agree that their eldest son will live with his father and that their minor children will live with their mother. One year after the conclusion of this agreement, the eldest of the minor children, who is then 12 and a half years old, decides to "stay one week out of two" with her father despite her mother's opposition. The father, who was denied joint custody in the first instance, turns to the Court of Appeal*.
The Court concludes that, although case law recognizes the first instance judge's discretionary power, "this discretion must be exercised taking into account the best interests of the child", a cardinal rule in this matter. This interest will be assessed according to three factors: firstly, the parental capacity of each parent, secondly, the time and resources that parents are willing to devote to the well-being of their children and, finally, the absence of contraindications such as geographical, health or psychological reasons.
In addition, the court states that, without being exclusive, the intention expressed by a child over the age of 12 to live with one parent rather than the other is largely determinative, but there is no presumption in favor of joint custody unless it is considered in light of the parental capacity of both parents. The Court decides to grant joint custody for the eldest daughter.
Whether it's a peaceful path or a bumpy road, parents, children and the judge must strive not to end up in the ditch and maintain the course in order to avoid potholes as much as possible in a child custody request.
*C.A. Québec 200-09-005781-064
