It’s that time of year again! While many are excited and gearing up to celebrate the season with friends and family, this time of year can bring conflict and stress for separated parents uncertain of how they will spend the holidays with their children.
Holiday parenting schedules refer to parenting time during statutory holidays, religious holidays, school breaks, birthdays, and any other special occasions throughout the year. While parents may have agreed to a regular parenting schedule, they must also come to an agreement on a holiday schedule, which often trumps the regular schedule.
If you do not have a formal parenting plan or separation agreement in place that addresses parenting time on the holidays, these occasions can become a great source of conflict. Holiday traditions, nostalgic feelings, and fear of losing quality time with children make it increasingly challenging to agree on how the holidays will be shared.
Urgent Motions for Holiday Parenting Time
Many parents might assume they can bring an urgent motion right before the holidays if a parenting dispute arises. However, this is not always the case, particularly if your matter is not already in court.
The general rule is that parties are not permitted to bring motions for temporary relief prior to attending their first case conference. Rule 14(4.2) of the Family Law Rules provides an exception, permitting parties to bring a motion for a temporary order prior to attending a case conference in situations of urgency, hardship or if a case conference is not required for some other reason in the interest of justice.
In Yelle v Scorobruh, the Superior Court of Justice outlined a number of factors the court may consider when determining whether a matter is urgent, including:
- Whether the parties canvassed earlier dates for a Case Conference;
- Whether the parties attempted to negotiate and reach an interim agreement;
- Whether the best interests of the child are at stake, including whether there is an abduction issue or other safety concern;
- Urgency in accordance with the jurisprudence, which includes abduction, threats of harm or dire financial circumstances;
- Whether there is hardship which includes a consideration of whether a party will be severely prejudiced or suffer irreparable or non-compensable harm; and/or
- If there are other pressing issues, including domestic violence, mental health issues, criminal activity, substance abuse issues or serious anger management issues that may require immediate attention by the court.
There is a high threshold to meet should you need to bring an urgent motion. Urgency is determined on a case-by-case basis and there can be serious cost consequences if a Judge decides your case does not meet the threshold of urgency.
Factors Courts Consider When Determining Holiday Parenting Schedules
The court will consider several factors when determining whether to make an order for holiday parenting time. The primary and overarching consideration will always be the best interests of the children. The courts are not concerned with what parents believe is fair. When assessing the best interests, the courts will consider the children’s relationships with their parents and how to best maximize time with both parents.
Many parents assume past family traditions will be a significant factor in determining the holiday parenting schedule. While courts will consider these past traditions when assessing the best interests of the children, they are not binding. The reality is that upon separation, past traditions may no longer be suitable in light of the new family structure.
Staying Out of Court During the Holidays
While commencing a court application or bringing an urgent motion may be the only option for some parents, the key to avoiding spending the holidays in court is planning ahead.
Parents should give themselves enough time to negotiate a holiday parenting schedule that works best for their family. This will help avoid last minute disputes and the uncertainty that comes with having a Judge determine the parenting schedule.
With the festive holiday season upon us, here are some tips to avoid conflict and stress when determining a holiday parenting schedule:
- Communicate and make decisions in advance. Parents should give themselves enough time to negotiate a parenting schedule and to seek legal advice if necessary.
- Be flexible. As family dynamics change and children get older, holiday parenting schedules may need to be amended to better reflect the children’s needs and preferences.
- Don’t be afraid of starting new traditions. Many parents view sharing the holidays as a loss of time and traditions. Parent should use this as an opportunity to get creative and make new traditions focused on the future and new family structure.
- Focus on what is best for the children, taking into consideration the children’s view and preferences when possible.
- ‘Tis the season for kindness. Goodwill goes a long way when trying to co-parent and reduce conflict for the children. Holidays are a time to celebrate and spend quality time with family and not a time to get even with a former partner.
At Mills & Mills LLP, our experienced lawyers can assist you in creating a parenting holiday schedule that best benefits your family’s particular needs. We will help you explore all in and out of court options available to keep you focused on sharing those special family moments. To learn more about how we may assist you, contact us online or by telephone at (416) 863-0125.