The wishes of a child in Kincl v. Malkova Ont. C.A. 2008
The older a child is the more judges give weight to the preferences and wishes of the child with respect to custody and access issues. This is probably the case for a few reasons. First, older children are more mature and less impressionable than younger children and are thus less likely to be influenced by the desires of their parents. Also, older children are independent enough to do as they please despite court orders or parental demands.
In the case of Kincl v. Malkova, the appeal judge overturned the decision of the trial judge with regard to access. The parties commenced living together in 1991 and separated in 2001. They had one daughter together, Veronica, who was fourteen-years-old at the time of the Appeal. The trial judge had given the mother sole custody of Veronica and increased access to the father. The appeal judge refused to state that the trial judge’s order was in error at the time it was made. However, based on fresh evidence, the appeal judge felt that the order of the trial judge must be overturned. The fresh evidence demonstrated that Veronica had not seen her father since November 2005 and that she did not want access with her father at the present time. This evidence was confirmed by the Children’s Lawyer.
The appeal judge maintained that Veronica’s wishes should strongly be considered: “Veronica is almost 14 years of age and her views are entitled to considerable weight.” Furthermore, the appeal judge did not want Veronica to be placed in a position where she would be breaching a court order by not seeing her father. Accordingly, the appeal judge allowed the appeal and substituted an order providing access as requested by Veronica.