Holiday planning should never be left to the last minute. Fixed access schedules, which are commonly used in family law, can be quite contentious and unexpected problems can arise, particularly during holidays, long weekends, birthdays and religious occasions. Special occasions are especially sensitive as parents may not be able to have their children as much as they’d like to. Often, parents who have difficulty reaching an agreement or working together may have higher difficulty negotiating access plans, whether with or without the assistance of legal counsel.

Either Parents’ Consent or a Judge Decides Access

If parents can work together to come to an arrangement for access there is less contention and pressure placed on the children and a higher likelihood that collaborative scheduling will be respecting the best interest of the children and each party.

If the parents cannot decide a holiday schedule, a judge may be forced to make a decision, and the outcome may not be better than what you and your former partner may have been able to agree on together.

How the Courts Decide

All decisions will be made in accordance with the best interest of the child test. The concept of best interest must also be balanced against the principle of maximum contact. The focus of discussions for access should be based on what the children need, not what the parents want.

In making a decision about access, the judge will consider a number of factors, including but not limited to:

  • the emotional ties between the child(ren), parents and extended family;
  • regular family traditions; and
  • the child’s wishes and what holiday plans they may already be looking forward to.

Courts in Ontario generally prefer that holidays are split equally between both parents, providing ample time for children to also spend quality time with their extended families on both sides. This is regardless of whether or not one parent is the custodial parent, or they are joint custodial parents.

Custody and access confer entitlements only to the extent that they enable both parents to discharge their responsibilities and obligations to their children in order to ensure and promote their best interests (Racine v. Woods, 1983 CanLII 27 (SCC)). Often in situations where children are accustomed to traditions with both sides of their family, it can be a good idea to maintain the status quo and allow the children to keep those traditions, where possible.

Especially with regards to religion, it is important that the child not be deprived of full religious teaching, experiences and traditions of one parent because of the separation. It has been held that it is in the best interest of the children that “that they come to know their noncustodial parent fully, including his religious beliefs, unless the evidence established the existence of or the potential for real harm or the child did not consent to being subject to the access parent’s views or practices” (Young v. Young, [1993] 4 S.C.R. 3).

Incentives for Negotiating Agreements Early

There are many reasons to negotiate an agreement for the access schedule early, including the real possibility that the other parent denies access. Or, what if the other parent does not openly deny access but then unreasonably withholds a travel consent that would let you take your child for out of town for visits or vacation?

Arguments about the holidays can end up with children feeling like they are in a position where they need to choose sides. If after a dispute, your child attends the holiday with you, he or she might not enjoy it, feeling that their other parent is upset.

It is critical that the necessary legal steps be taken in advance of making concrete plans. A court order that confirms your entitlement to travel with your child would ensure that no claim can be made that you have attempted to abduct and relocate the child to another jurisdiction. Once these implications get brought into the mix, the situation could easily become incredibly more contentious in court and delay the proceedings exponentially.

If you end up at court, there are no assurances that your case will be heard when you need help. Court dockets are overrun with motions for emergency relief where parents fight it out in court for access over the holidays. Unfortunately in these situations, where timelines are tight, judges might not be entirely sympathetic with all the couples that have waited to the last minute without attempting to come to an agreement in advance. It is important to plan accordingly and leave yourself enough time to get a fair agreement well ahead of time.

If the judge hears your case but then doesn’t allow the vacation because there is too little information available about your case you may be in a tight situation. The final days before the holidays are a unique challenge for family court judges stuck with the task of ironing out last minute wrangles between separated and divorced parents.

Be careful not to add any extra stressors to your child about the holidays as this can have an unfortunate effect on your child’s mental health and well-being. A breakdown in the family unit is already a hard enough time for children to adjust to.

Mark Epstein
Epstein & Associates
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