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Access to Children — Working it Out Between Parents (and Sometimes Others)

Access to Children — Working it Out Between Parents (and Sometimes Others)

As it begins to show promise of warmer summer weather, parents will usually start thinking about planning summer getaways with their children. For separated and divorced parents, however, these vacations must be arranged in accord with existing access arrangements, or else there must be a temporary agreed-upon variation which will accommodate the holiday plans.

Needless to say, scheduling access year-round can be a challenging exercise at the best of times, even when it is only the biological parents who have access rights. However, when other family members – such as grandparents and step-parents – have rights to see the children as well, it can get even more complicated, as the recent Ontario decision in Curphey v. Aldebert demonstrates.

In this case, the first complicating factor was that the mother had three children by three different fathers. The children – all girls – lived with the mother and were in her primary care; each of the three biological fathers had access to their respective offspring. However, the maternal grandparents had also individually negotiated an access agreement in connection with all three children, which the mother and each of the three fathers had consented to.

In this convoluted scenario, the parties attended a settlement conference to try to work out access and formulate a reasonable parenting schedule, and the court was asked to assist.

First of all, the maternal grandparents were given access to all three children one evening per week, one overnight per month, and one week of summer vacation (subject to the respective fathers’ summer vacation week choices). The court’s access order also included stipulations relating to pick-up times for the children on school days, enrolling the children in community activities during the grandparents’ access time, and allowing the children to telephone the grandparents at any time.

Next, each of the three fathers was allowed access to his own biological child, with the access falling on the same alternating weekends for all three men. (This allowed the three siblings to be together and to spend time with their mother during the other alternating weekends). This order included directions relating to Thanksgiving, Christmas, Easter and March breaks, and stipulations as to who gets statutory long weekends and school professional development days.

The court also fashioned specific orders for each of the fathers: In the case of one father, it directed that he and the mother continue to work co-operatively to gradually expand the duration of his access. For the second father, the court noted that he and the mother had adjusted their weekend access times to accommodate their daughter’s dance schedule, and strongly encouraged that approach.

Finally, the court devoted considerable attention to crafting an access order for the third father. This was necessary because he not only wanted additional access to his own daughter (over and above the straightforward alternating weekends that the other fathers enjoyed) but he also wanted to maintain access to the two other girls who were not his biological children. Notwithstanding the objections of the girls’ fathers, the court allowed the third father to continue to have a modest access schedule until the recommendations of the Office of the Children’s Lawyer could be elicited.

Pending that input, the father was entitled to have one overnight per month, but with the following conditions:

1) the additional access time was to be subtracted from the mother’s parenting schedule, and not from the parenting schedule of the children’s own two biological fathers;

2) the overnighter had to take into account the father’s schedule, so that he could enjoy time with all three children;

3) the overnight access was not to impact on the parenting schedule of the two other fathers or the grandparents; and

4) the parties had to propose to the court – in writing and ideally on consent – which specific date each month the father should exercise that overnight access.

The corollary question of that same father having additional access to his own daughter (over and above the alternating weekends) was left to be determined by the court at a later date.

Finally, the court also ordered that all the fathers and the grandparents must adhere to the access plan, and shall not deviate from it unless the written consent of all the adults has been given.

As this illustration shows, the structuring of access to children is a complex equation which accommodates numerous interests and is subject to several variables.

At Russell Alexander, Family Lawyers we are available for personalized, private and confidential consultation. For more information about our services or other family law issues please visit us at www.russellalexander.com

For the full text of the decision, see Curphey v. Aldebert, 2010 ONSC 5841