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.