The holidays are supposed to be about family togetherness. But for many separated and divorced Canadian parents, it means yet another layer of hassle on top of what has already been an acrimonious split from each other.
The Ontario decision in Gharabegian v. Mckinney is a case in point. There, the father applied to the court on a last-minute basis to obtain access to his two kids, aged 12 and 7, during Christmas. Since the kids were going to be spending the first half of Christmas with their mother and her family in Connecticut, the father wanted them to spend the second half of the holiday with him. He wanted the court to order the mother to deliver the children to the Air Canada counter at La Guardia airport at 3 p.m. on December 26th, so that he could take them to Blue Mountain Resort for a week-long ski holiday. (He initially asked for police assistance with enforcing the order if necessary, although that request was later abandoned).
However the mother objected to the father’s plan, mainly because she said the children did not want to go. The 12 year-old son had apparently threatened to lock himself in the bathroom.
The court had to decide whether it should grant the father’s access despite the children’s express wishes.
It decided it should. It was in the children’s best interests to go on the week-long ski getaway under the circumstances.
First, the court acknowledged the Ontario family law principles recognizing that, for the best interests of the children, they must have maximum access with both children and the custodial parent must facilitate such contact.
Next, the court noted the benefits of the father’s plan: for example it did not prevent the mother from taking the children to Connecticut as she had done in years past. Moreover, the mother had actually agreed by way of Minutes of Settlement that the father would actually have the children for an uninterrupted week each Christmas. To allow otherwise would mean that the mother would succeed in impeding the father’s attempts to build his own family traditions with the children.
The court then focused on how and to what extent the children’s wishes should factor in its decision. While acknowledging that it was required to consider them, those wishes were not the only factor that governed. Rather, they had to be considered against the entire factual background and the history and relationship between all the parties.
For example, while it accepted that the 12-year old son especially did not want to go, the court noted that the boy had been having normal issues with the father and this made it all the more important for them to spend time together and foster their relationship. Likewise, although the 7-year old daughter had also emailed the father to tell him to “stop ruining Christmas for me and making me upset”, it was likely that the mother’s expressed anger to the children about the father had influenced the daughter’s views in this regard.
Overall, the mother had likely helped create an environment where the children were feeling conflicted. Yet the court emphasized that the children could not be asked to make these kinds of decisions, as it was asking them to choose between two parents whom they love. This was too heavy a responsibility for them to bear.
For the full text of the decision, see:
Gharabegian v. Mckinney, 2008 CanLII 68150 (ON SC) http://canlii.ca/t/220f9
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.
