‘Tis the Season….for Christmas Access

 In Family Law

It’s that time of the year where for most, it’s the countdown for gift shopping, baking and tree decorating, but for others, such as separated parents, it is a time of stress, concern and uncertainty as to whether they will be able to spend time with their children.

As separated parents, it’s important to carefully start planning a Christmas holiday parenting schedule ahead of time to ensure that both parents have an opportunity to spend the Christmas holidays with their children.

If parents have a Court Order or separation agreement, they should review same to confirm whether or not a Christmas holiday parenting schedule has already been determined.

If no specific Christmas holiday parenting schedule is stipulated in a Court Order or a separation agreement, if the parties have yet to resolve custody and parenting time of the children or if the parties disagree on the settled/stipulated Christmas holiday parenting schedule, discussing and negotiating arrangements should start as soon as possible.

If your ex-spouse is likely to be unreasonable or resist parenting time during the Christmas holidays, consult a lawyer ahead of time, so that he or she can have an opportunity to negotiate with your ex-spouse or alternatively, commence court proceedings as soon as possible to obtain the necessary court orders.

Many parents assume that they can bring an “Urgent” Motion at the last minute before the Christmas holidays. The general rule, under Section 14(4) of the Family Law Rules,  is that no motions can be heard before a Case Conference. An exception to this Rule, is that a motion can be heard before a Case conference if a situation of urgency or hardship exists or if a case conference is not required for some other reason in the interest of justice.

The Courts view Urgent Motions as having to meet a high threshold of urgency. What is considered urgent is determined on a case-by-case basis.  However, in Yelle v. Scorobruh, the Court set out a practical summary of factors that a Court may consider in determining if a matter is urgent. Amongst other factors, the Court indicated that the following may be considered:

  1. Whether the parties made inquiries with the Court as to available Case Conference Dates;
  2. Whether the parties have made attempts to engage in settlement discussions;
  3. Whether the best interests of the child(ren) are at stake including whether there is an abduction issue or other safety concern;
  4. Urgency is established by the case law, including abductions, threats of harm and dire financial circumstances;
  5. Whether a party will be severely prejudiced or suffer irreparable or non-compensable harm; and
  6. If there are pressing issues such as domestic violence, mental health issues and/or substance issues, criminal activity or serious anger management issues (which may require immediate attention by the court).

Leaving resolution, discussions and negotiations of a Christmas holiday parenting schedule to the last minute (i.e Christmas Eve or even weeks before the Christmas holidays), is ill-advised. Proceeding as such, can result in an unfortunate circumstance where a parent is left with little to no time with their children over the holidays.  Plan ahead and contact your lawyer to discuss your options.

This blog post was written by Stephanie Simard, a member of the Real Estate and Family Law teams.  She can be reached at 613-369-0385 or at stephanie.simard@mannlawyers.com.

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