School's out for summer – almost.
For many separated families with school-aged children, summer can be a challenge. A written agreement or court order that sets out summer access with the children makes the season a lot less challenging, but for many families, such formalities are not in place.
With regards to those families without an order or agreement in place, the summer access schedule may still be straightforward. Consider, for example, those families who follow the same summer schedule informally every year. However, arranging such a schedule may prove to be difficult for families who are newly separated, or those who negotiate a summer schedule each year to accommodate the varying schedules of the parents and the child(ren).
When there is no existing access agreement in place, parents have a lot of freedom in arranging the summer access schedule. Parents are free to negotiate and compromise when planning the schedule, however, they must ensure that the schedule is in accordance with the child(ren)'s best interests. Reason being, if the issue were to ever proceed to court for settlement, the judge will decide what is fair based on the best interests of the child(ren).
See CLRA 24. (2) Best interests of child
It is important to mention that when a court is considering an access award, the focus is always on the best interests of the child(ren), and not on the interests and rights of the parents. Although parents' wishes are often at the forefront of a summer access negotiation – as mom or dad may only be allotted a certain week off work for a vacation for instance – it's important to remember that for the court, these wishes are irrelevant. Rather, the best interests of the children are what the court will examine. For example, will the child(ren)'s best interests be met if they were to travel to Disneyland?
For more information on how a judge may go about determining who should be granted custody, please listen to our podcast on this matter.
Although it may seem that a vacation is always in a child(ren)'s best interests (after all – who doesn't love a vacation?) this is not the case for the courts. According to one Canadian Judge, "The best interests of a child are not to be confused with such things as the "benefits" of a vacation."
In this case, the father sought to take his child on a vacation outside the country, and the mother obtained an order which restrained the father from doing so. Ultimately, the court made the final determination in accordance with the child's best interests, and the father was not permitted to travel with the child. For the court, the evidence did not establish that the children's best interests would be served by removing them from their home jurisdiction.
As a parent, if you are seeking to travel outside the country with your child(ren) for a vacation, it will be necessary for you to obtain a consent to travel from your ex-spouse. If such consent is denied, you may consult John Schuman's blog post "My Ex Won't Sign a Travel Consent" to determine how to proceed. In any case, it is best to consult with a family lawyer prior to taking any legal action.
To avoid both the cost and uncertainty of court, parents ultimately need to be able to agree on how to divide their child(ren)'s time during the summer. They must do so in a way that is best for their child(ren). Mediation may also be an option for parents who would like to settle their dispute outside of court.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
