Does a child's expressed wish to move from the custodial parent's home to the other parent’s home constitute a material change in circumstances?

Ontario, Canada


The following excerpt is from Bhardwaj v. Kaur, 2014 ONSC 1163 (CanLII):

Courts have considered whether a child’s wishes constitute a material change in circumstances. In Beeler v. Beeler[1] the court held that an expressed wish of a child to move from the custodial parent’s home to the other parent’s home does not constitute a change in circumstances justifying a variation of custody, unless it is clear and unequivocal. In Feist v. Feist[2] the court held that it should be loathe to make a variation order solely on the expressed wishes of the child of 11 or 12 years of age without some evidence as to why that current expression of interest has been stated. The court posed the question as to whether it should make a different custody order each time a child’s wishes changed.

The child’s preferences may be relevant at both stages of the analysis under s. 17(5) of the Divorce Act. First, the child’s wishes may or may not constitute a material change in circumstances (see the examples above). Second, the child’s wishes are relevant, but not necessarily determinative, when considering the child’s best interests: Gordon v. Goertz[3].

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