February 14, 2017

By Brad Smith

When can a child withdraw from parental control? How does the child do this? What is the role of the school, the police, the parents or the Court?

All of these questions were answered by the Ontario Court of Appeal in R.G. v. K.G.

A father interfered with the access between a 16 year old daughter and her mother. The father also tried to stop the daughter from attending university near the mother. The daughter sought a declaration that she had withdrawn from parental control.

The Court stated there is a rule of common law that a parent’s right to custody will not be enforced against a child’s will once the child has reached the “age of discretion”. This allows the child to live where he or she chooses. The age at which a child has the right to withdraw from parental control is 16 years old. See section 65 of the Children’s Law Reform Act.

There are two methods for a child to withdraw from parental control. The first may be considered a self-help remedy. A child has the right to unilaterally withdraw from parental control. A child’s statement of an intention to withdraw from parental control may be recognized by third parties – such as the police and schools. In R.G. v. K.G., upon the child’s declaration, the principal did not provide information to the father. Similarly, the police did not enforce the order for custody to require the child to return to her father.

The role of the parents and the Court arises if the child seeks a court ordered declaration she has withdrawn from parental control. The parents should receive notice. The Court will consider whether the declaration is necessary and appropriate considering the child’s age, level of maturity and assess the best interests of the child. In the circumstances, the Court declared the child had withdrawn from parental control.

The facts clearly indicated the daughter’s desire to withdraw should have been respected by the father. The Court was critical of the father’s motives:

“… the father’s continued pursuit of this issue confirms [the child’s] position that he is obsessed with controlling her and that this has blinded him to the reality that it is he, not her mother, who is the reason that she withdrew from parental control.”

Ultimately the unsuccessful appeal required the father to pay $21,000 to his daughter and former wife for costs plus approximately $6,000 to be paid to the daughter from the earlier order.

The Court’s concluding remarks should carry weight not only when a child wants to withdraw from parental control, but in any custody or access dispute.

“This appeal demonstrates the importance of the emerging movement to incorporate the voice of the child in all matters concerning minors. … When, as here, the child is months away from her eighteenth birthday, a continuation of litigation involving her indicates more about the parent’s needs than the child’s.”