Is A Parent Entitled To Participate In A Hearing Where Their Child Applies To Withdraw Custody?

Written on behalf of Arbesman Hamilton LLP

Parents are often central in court cases involving children under the age of 18. However, there are situations where a minor may not want parental involvement, or when the interests of the parents are opposed to the interests of the child. One such situation was recently addressed by the Ontario Court of Appeal, when the court had to determine whether parents had the right to participate in a hearing where a child applied to withdraw from their custody.

What Happened?

The parents in the case separated when the child was 18-months old (she was 17 years old at the time of the hearing). Both parents lived in or around Oakville from the time of the girl’s birth up until 2013, when the mother remarried and moved to Florida. While the father maintained custody during the years that followed the mother’s move, the girl continued to enjoy extended visits to Florida for about a year.

In 2014, the father cancelled a planned trip and informed the girl that a further planned trip to Florida would be the child’s last. During that trip, the girl attempted to remain in Florida, resulting in the father obtaining a court order for her return.

After returning to Canada, the relationship between the girl and the father became strained. Despite her parents reaching a custody agreement where the father would maintain custody, with the mother having access rights until the girl’s 18th birthday, the girl decided to accelerate her last two years of high school with the hopes of attending university early.

The girl’s efforts at getting through high school a year early paid off. She obtained good grades and was offered a full scholarship to the University of Miami. Her father was strongly opposed to this, and informed the university that despite the girl’s claims, she was not an independent minor. The girl’s father told her he would “do everything he can to stop” her from moving to Florida for school, including forcing the school to withdraw her offer for admission as well as her scholarship. As a result, she applied to be withdrawn from parental control.

The Lower Court Decision

The child’s application was approved at lower court. In its decision, the court wrote, “The evidence indicates that [the girl] is a remarkable young woman. I have no hesitation in making the order. There are no respondents in this application because counsel takes the position that the parents are not entitled to notice either of the Application or of the order. I accept his submissions”

The father appealed the decision, particularly the court’s decision to exclude the parents as parties to the hearing. If they were recognized as parties, they would have the right to submit evidence, object, and cross-examine witnesses.

The Appeal

The Court of Appeal turned to the Children’s Law Reform Act (CLRA), which codifies the age at which a child can withdraw from parental control. The Act states that children can withdraw at 16-years of age.

But while a child can unilaterally withdraw from parental custody at 16, there was a distinction between that decision being made and the court issuing a declaration to its effect. The CLRA outlines that parents are parties to a declaration of withdrawal. However, the court added, it “retains discretion to direct their involvement and participation in the application. The father suggests that he should have all the usual rights including introducing and cross-examining on affidavits. This, however, is not automatic. The judge hearing the application will determine, based on the unique facts before her, what degree of participation is appropriate.”

In the case at hand, while the father was not a named party to the hearing, he had been able to file material and make submissions. The court determined the father had been granted an appropriate level of involvement and dismissed the appeal.

Some of the most important decisions to make during a separation or divorce are those around custody and access of children. Decisions about custody and access can impact other areas of a separation, including where the parties live, the division of property, and more. Custody decisions impact more than just where a child lives. Custody will impact who makes decisions on behalf of children, and the obligations of each parent. Contact Arbesman Hamilton LLP by phone at 416-481-5604 or online to arrange a consultation on custody or other family law issues.