Now that Christmas is officially over, it seems a more fitting time to reflect on the unfortunate fact that holidays and special events often pose a great deal of difficulty for separated and divorced parents of a child. This is because these special occasions are often viewed as having particular (and one might say, undue) importance to families and their sense of “tradition”, so the decision as to where a child will spend them can often give rise to heightened acrimony between already-embittered parents.
A decision from a few months ago called Curphey v. Aldebert illustrates this unfortunate reality all-too-well.
The father had asked the court for an order for Christmas access with his 5-year old child, Victoria, but only in alternating years so that the child could spend time with the mother’s side of the family as well. However, his main goal was to have the girl during holiday “prime time” every other year, i.e. from Christmas Eve at 4 p.m. to Christmas Day at 2 p.m.
The court explained the father’s position:
The [father] argues that it is in the best interest of the child (BIC) that she enjoys maximum contact with each parent at Christmas. Christmas Eve, in a young person’s world, features the anticipated arrival of Santa Claus and his reindeer, followed by the awakening on Christmas morning to discover presents under the Christmas tree. It is undoubtedly an important experience of childhood, to the extent that the BIC principal [sic] would argue in favour of allowing Victoria to live out that experience with both of her families. Those two families are the [father], his new partner and Victoria’s paternal half sibling on the one hand, and the [mother], her new partner and Victoria’s two maternal half siblings, on the other hand. In addition, the [father] argues that his proposal is inherently balanced and fair.
On the other hand the mother – who had sole custody — wanted the father to have access every year, and for an extended period, but only after Christmas morning, i.e. from December 25th at 2 p.m., until January 2nd at 2 p.m.
Her position was summarized as follows:
The [mother] points to the requirement for consistency in a young child’s life, and the importance of shared memories with siblings. She argues that a consistent and reliable Christmas experience, with traditional and recognizable activities of family gift exchanges, attendance at Christmas mass services and waking up on Christmas morning are in the BIC.
The court had to grapple with how to resolve this dispute. It started by observing that its role was not to weigh the parties respective wishes over how and with whom the child should spend the holidays; rather, it was to determine which of their proposals best promoted the child’s best interests. This was always the paramount consideration in such cases.
Next, the court observed that its ruling must take into account the reality of the situation: i.e. that the parents were separated and no longer living as a complete family unit as they had done before. It was therefore not realistic for one parent to insist on previous holiday traditions, activities and schedules when the other parent would no longer be participating.
The court summed it up this way: “Past family traditions, while important, are not binding.”
In the end, the overriding principle was that the child should have maximum contact with each parent. This in turn dictated that both the mother and father be given equal opportunity to share the Christmas Eve/Christmas morning time-period with the child. As such, the court had only one option: to order alternating access on a year-to-year basis. The court also incorporated various terms into its order, which allowed for some variation in future years, should the parties’ circumstances warrant it.
For the full text of the decision, see:
Curphey v. Aldebert, 2012 ONSC 4628 (CanLII) http://canlii.ca/t/fsjcc
At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.
