As the calendar turns to December, many of us start thinking of the upcoming holidays. Even though the season is originally based on religious themes, many of the celebrations are secular and enjoyed by many in our diverse Canadian culture. One recurring theme that family law lawyers see in the courts at this time of year is the “annual bringing of motions for holiday access.”
When families are together, the holidays can be fraught with stress, anxiety, overspending and a profound sense of disappointment. These feelings are made worse when separated/divorced parents rely on a stranger (a judge) to decide whether their child/children will spend the holidays with one parent, both parents, or some form of time-sharing. Much like the holidays themselves, these common family law motions are filled with tremendous stress, high anxiety, significant over-spending and often an overwhelming sense of disappointment.
If you are a separated/divorced parent, how can you avoid this? I have a few suggestions:
Resolve the issue of holiday time-sharing well before the actual holiday season. If it’s safe for you to do so, talk with your former partner/spouse in the early fall to mid-fall, or even sooner. Consider using mediation services, or a four-way meeting with experienced lawyers. If terms are reached, you can turn the agreement into an enforceable court order in a timely manner.
If a resolution is not possible, bring your motion well before the actual holiday season. Judges do not like to see people in court the week before Christmas, fighting with their former partner/spouse about these issues. If Christmas is the holiday season you’re fighting over, bring the motion in late October or early November. Just like many merchants say at this time of year: “avoid the holiday rush – get to court early!”
Be realistic. I have heard many clients say in court “but it’s always been our family tradition that we celebrate the holidays on Christmas Eve, Christmas morning, or all day at Grandma’s house on Christmas Day.” Most judges respond to that argument by saying, in so many words, that “they don’t care.” They will remind the parties that when the relationship ended, the children may need to have “new traditions,” to accommodate the realities of both families and the new family dynamics.
Be child-focused. Generally speaking, access and time-sharing is the right of the child, not the right of the parent. There isn’t a “one-size-fits-all” rule to how a judge will apportion time over the holidays. A young baby who is still breastfeeding will be treated differently than a teenager who has a girlfriend that he’d rather spend time with during the holidays. As well, will the holiday plans for the children involve spending time with their cousins and known relatives in the same city, or will it be with mom’s new boyfriend’s family 100 km away that they have never met before? If the holiday plan is not in the child’s best interests, chances are it will not be granted.
Be flexible. Clients often see the outcome of these motions as a “they won / I lost” proposition, so the party who offers a “compromise” to the issue may be preferred by the courts. For example, if both parties are fighting for Christmas Eve and Christmas Morning, a compromise might look something like this:
“In odd years, starting in 2019, Dad will share time with the child from December 23rd at 10 am to December 24th at 6:00 pm, and Mom will share time with the child from December 24th at 6:00 pm to December 25th at 3:00 pm. In even years, starting in 2020, Mom will share time with the child from December 23rd at 10 am to December 24th at 6:00 pm, and Dad will share time with the child from December 24th at 6:00 pm to December 25th at 3:00 pm.
In doing so, judges will want to know who had the “sought-after time” in the previous year. Generally, they don’t reward a party who tries to “hoard” the holidays for themselves.
Finally, please remember that the “holidays in dispute” are not restricted to the Christian ones – I have seen an increase in orders dealing with Rosh Hashanah, Eid, Diwali and other holidays. The comments above apply equally to them.