• by Carly Mellon
Originally published at The Lawyer’s Daily
There, I said it.
In all the classic Christmas Hallmark movies, the holidays are portrayed as a time of constant happiness with families getting together, the snow always sparkling and everything working out in the end.
In the real world, that is not always the case.
Now, add going through a separation or a divorce to the existing typical holiday stress. One of the biggest issues that can arise during the holidays for our clients who are separating or divorced is deciding how their children will spend the holidays, and ultimately, which parent will miss time with their children.
With the holidays fast approaching and, if your clients are separated or divorced, it might be time to start having discussions about where their children will be spending the holidays. Thus, it might be helpful to think about advising them of a parenting plan. As some already know, such an agreement is put in place and dictates where, and with whom, the kids will be spending the holidays.
In Ontario, there are a few different options to help parents with holiday decisions regarding where their children will be.
Section 54(d) of the Family Law Act deals with separation agreements and says, “Two persons who cohabited and are living separate and apart may enter into an agreement in which they agree on their respective rights and obligations, including ... the right to decision-making responsibility or parenting time with respect to their children...”
Parenting time in a separation agreement does not only include which parent has the children during the week and weekends; one can and should include holidays.
For example, it can be stated in the agreement that one parent has the children on Christmas Eve until a certain time and then will get picked up by the other parent on Christmas Day. Having a clear agreement can alleviate stress and confusion as the holidays approach.
For parents who were married and are now divorced, s. 16.6(1) of the Divorce Act discusses parenting plans. Section 16.6(2) of the Divorce Act states that “...parenting plan means a document or part of a document that contains the elements relating to parenting time, decision-making responsibility or contact to which the parties agree”.
Parenting plans including holiday time can be submitted to the court by both of the parents and the court can assist in determining what is in the best interests of the child.
The specifics of a parenting plan can be curated to fit the family’s wants and needs. For example, the agreement can state that in odd-numbered years one parent has the child for a certain holiday and in even-numbered years the other parent will have the child for that holiday.
It is important to remember that in every scenario, one parent will have to compromise and will not always have their children on days that they would like to have them. Even though it is difficult for them to accept that they may not be seeing their child on a special holiday, it is equally important to remember that this agreement is not only for the client, it is mostly for the best interest of their children.
Talking to kids and explaining that they may not be with one of their parents during the holidays can be a very difficult conversation. Still, as much as the parenting plan is for the client and their ex to have these issues clearly outlined, it is also for their children to have a sense of stability during the holidays.
Having a predetermined holiday parenting time schedule in place will help to eliminate last minute fighting and uncertainty for the children. It also ensures that the kids will be spending time with both of their parents, which ultimately is in their best interests.
It’s easy for the client’s mind to be clouded if there hasn’t been closure in their relationship or if they have been fighting, but they should remember that more fighting over holidays will only make things harder for them and their children.
If you know a client that is currently going through a separation or divorce and their anxiety is rising in anticipation of the holiday season, maybe it’s time to advise them to swipe up on that Amazon gift buying page and e-mail their family law lawyer instead. What bigger Christmas miracle can they bring themselves than speaking to a lawyer right before the holidays?
Carly Mellon is a legal assistant at Frenkel Tobin LLP who fancies separation agreements and parenting plans. She can be reached at cmellon@frenkeltobin.ca.