Autonomy vs Best Interests: Withdrawing from Parental Control and the Paternalistic Approach of Parental Alienation

  • June 30, 2022
  • By Adrianna Mills and Enniael Stair


In Ontario family law, 16- and 17-year-olds occupy a unique middle ground between childhood and adulthood. They are simultaneously both minors and thus governed by the "best interests of the child" framework, as well young people who have reached the "age of discretion." As minors in family law disputes, their voice in custody and access, while significant, is not legally determinative. Yet, they have also have inherited the common law right to withdraw from parental control entirely. Therefore, in a case where such a young person wishes to discontinue a relationship with one of their parents, the legal question may be framed as one of the parent's right to custody and access or one of the child's to withdraw from one parent's control. In the former, the young person's wishes are only considered; in the latter, the young person's choice is conclusive. Both frameworks are complicated by introducing "parental alienation," which, when successfully claimed, circumvents the young person's voice entirely.


The “best interests of the child” framework originates from the United Nations' Convention on the Rights of the Child (UNCRC).[2] The Ontario Children’s Law Reform Act (CLRA) applies this principle to issues of decision-making responsibility, parenting time, and contact. Section 24 of the CLRA asserts that when making a parenting or contact order courts must consider the best interests of the child, and part of determining the best interests requires considering the child’s preferences and giving appropriate weight to them based on the child’s age and maturity.[3]

However, older children who have reached the “age of discretion” have the unique common law right to withdraw from parental control completely.[4] The result is that although they are still considered legal minors, the child is entitled to take over all incidents of custody pertaining to them and parental custody rights are terminated. Consequently, they have the legal right to make all of their own decisions regarding residence, health care, education, religion, and others, without consultation with their parents. There is no formal legal process required under Ontario law for 16- and 17-year-olds to withdraw from parental control.[5] A young person only has to assert that they intend to do so and live separately and independently from their parents.[6] Section 65 of the Children’s Law Reform Act codifies this common law right and defines the age of discretion on Ontario as 16 years old.[7]

Consequently, custody and access provisions do not apply to children over 16 if they have withdrawn from parental control.[8]