I’ll get the kids for Christmas!

These past few months have been very difficult and emotionally draining for Jill and the children. For this reason, Jill plans to travel to Nova Scotia this year with the children to spend a few weeks with her family over the holidays.  She knows that Jack will not want to spend the Christmas Holidays without the children.  All Christmas dinners have been held at Jack’s parents, a family tradition that has never been broken since the day she met Jack.   This year however, Jill wants to have Christmas dinner with her family.  She is prepared to let Jack have the children with him on New Year’s day and allow him to keep them in his care until school resumes.  As Christmas is just few weeks away, Jill was advised by her friend to immediately begin emergency court proceedings to obtain an order allowing her to travel with the children to Nova Scotia for Christmas.  She wonders if she should….

Most parents have a very limited understanding of the complexities of the family court process.  In addition, many of them have unrealistic expectations with regard to the delays associated with family court proceedings and the powers conferred upon judges to render decisions when dealing with custody and access matters, especially in the interim stage of a separation (that means, before a full trial is conducted). Here are a few things you should know about a family court proceeding:

• Trial - A family court proceeding can take up to two years (sometimes much longer) before it is ready to proceed to trial.  A trial is when all the witnesses testify in court in front of a judge who ultimately renders a final decision in the case.  
• Interim or emergency hearings - Called “motions” or in some provinces “applications”, these hearings are brought often as a court proceeding begins to obtain temporary decisions on issues that require immediate attention, for instance when you need an order to confirm with whom the children will reside, to obtain child support or to force the sale of the family home.  It can take several weeks and even months (depending on where you live in Canada) to have a motion heard by a judge in family court, unless you can show an extreme emergency.  Spending Christmas with your children does not usually qualify as an emergency.  The evidence used for a motion hearing is presented to the judge by way of written statements (called affidavits) – there are no “live” witnesses.  The judge reads the affidavits before the motion hearing takes place.  Since one party’s version of the story is never the same as the other party’s, the judge is often unable to determine which story is the “true” story.  As a result, the judge is often not in the best position to make an order that truly meets your children’s best interests.
• Alternative options - Courts make lousy parents, and you should always try to explore other ways of resolving disputes about parenting issues.  The following options can be arranged relatively quickly: jointly hire a parenting mediator to help you craft an arrangement that meets both parents’ desires, seek the assistance of an experienced social worker who can sit down with all of the family members (including your older children) and facilitate a discussion around the various options.  If a negotiated resolution is not possible, enter into a private arbitration with an experienced and qualified family lawyer who will take the time to hear both parents’ views and concerns and then make a decision on the disputed issue.  These alternatives not only have the benefit of being more expeditious, they are also often much, much cheaper than going to court.

After the Separation - The Need to Plan the Christmas Holidays!

The Christmas holidays are just around the corner and Jack would really like to work out the holiday schedule and travel plans with Jill.   Jack’s mother is hoping that she will be able to give her annual Christmas dinner and she is pressing Jack to get an answer from Jill as soon as possible.  Jill is still very angry at Jack and unreasonable when it comes to making decisions with respect to the children.  Jack fears that she will not let him have the children for  his family’s traditional Christmas dinner, a festivity that the children enjoy very much as they get to play with all their cousins. Jack is anxious and feels that, at least for this year, the existing family traditions should be maintained.   

If, like many other separated families, you must face the prospect of sharing the children with your ex-spouse this year, chances are you will be spending either Christmas or New Year or some very important event without your children.  Planning is the key to help you cope with being either home alone during some of these times and/or without your children.  Here are a few tips you may want to consider to make this holiday season as merry as possible, in the circumstances:

• Talk to your children – Mark the calendar so that they understand the schedule that was agreed upon with your ex-spouse.  You may tell them how much they will be missed when they are with the other parent, however, reassure them that you also have fun plans.  While it is important to be honest with your children about how you feel, they are not responsible for your happiness (or unhappiness).
• Make plans with your children – It is not important what you do or when you do it, as long as you plan to celebrate the holidays in YOUR own special way.  Start a new family tradition that the children will cherish for years.  Children remember true joy, comfort and laughter, not specific days of the week.  Ask for their advice as children always have great ideas.
• Touch base – When your children are with the other parent, arrange to have some kind of contact with them.  A quick phone call or a text message on Christmas day can go a long way.   A contact, no matter how brief, will help the children cope and help ease your own feelings of loneliness.  Remember, you will soon be reunited again.
• Most importantly, make plans for yourself – It does not have to be earth shattering but make sure to plan something out with family and friends during the children’s absence.  Also plan for some time alone to rejuvenate.  Your heart and soul might be aching with pain for not being with your children, but a good laughter might be the cure you need.  Cook a special meal, go to a movie or to a fine restaurant, read a good book, rent a movie, get a massage or a beauty treatment, finish a home project, stay in bed as long as your heart desires, go away for a few days or give some time to a local charity.  What truly matters is that you take time to make plans for yourself!