For as long as there is been a holiday season near the end of each year [i.e. Christmas], I expect, there have been disagreements between the separated couples as to who has the pleasure of spending special time with the children.
Most separation agreements suspend regular care schedules to accommodate family tradition and permit timesharing that usually acknowledges a very specific schedule of dates and times and pick up responsibilities. Popular among them is to alternate Christmas Eve and Boxing Day with one parent having the child/children one day in even years and the other parent in odd years. These agreements are designed to minimize conflict and give some certainty regarding care time.
However, if the parties do not have a formal and agreed-upon written separation agreement, or, on its terms, a party is allowed to have the courts review it [things may have changed such as one party moving or the children reaching a certain age], they may have to contemplate bringing a motion in court to determine where their kids will spend the holidays. Having spent many a year in motions court in the weeks leading up to the holiday break, I can tell you that it is anything but "Merry" for the parties, lawyers and judges alike, however sometimes it is necessary.
Best Interests Test
The courts traditionally use the "best interests of the child" as the guide for determining the holiday schedule. Spending time with both parents is acknowledged to be important to children and equal timesharing is considered part of that determination however courts will likely consider the following factors;
- Status Quo – what has happened in prior years, what is the child familiar with in those previous years.
- Family tradition - if children are used to spending Christmas Eve with one part of the family and Christmas day with the other, the courts will consider maintaining these family events.
- Travel- if parents live in different jurisdictions there may be logistical issues related to connecting the children with their parent and/or their extended family. It may even involve impinging on the other parent's time over the holidays with the children and require a judicial hearing to determine.
Motions
If a motion is required it will depend if the case is already been "to court" or not. At the beginning of each case there is a meeting at the court entitled a "case conference". Motions generally cannot be brought before a case conference unless there is a matter of "urgency" under the Family Rules of Court [s. 14]. The court will determine if the motion reaches that threshold but it will be difficult in a case of family disagreements over the Christmas holidays as urgent motions are saved for issues such as abductions, domestic violence, significant mental health or substance abuse.
If you're matter has already been to court and the case conference has been held, then such a motion can be brought usually in the jurisdiction where the children reside. It does take planning to be successful on such a proceeding and even before you go to court, making attempts to settle the issue outside of court, will have an impact on the ultimate decision-maker and where Kelly spends the holidays!
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.
