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Holiday Parenting Time and the Law
Parenting Schedules and Holidays
The holiday season is fast approaching, and with it, the excitement to spend time with our families. The reality for many families is that the children must share their holiday time with their separated parents. As a result of this reality, parents will often bring motions to the court to determine how the children’s time will be divided.
Factors the Court Considers When Determining Holiday Parenting Time
The courts consider a multitude of factors when creating a parenting schedule that also includes a schedule for holidays. Parents should know however, that Ontario does not have a presumption of 50/50 parenting time, and therefore, the courts will not necessarily default to splitting a child’s holiday time equally between parents.1
An important consideration in determining a parenting schedule is the “maximum contact principle” found in the Divorce Act which states that courts will support the principle that children should see their parents as much as is consistent with their best interests.2 This principle is also consistent with decisions made for unmarried and separated parents under the CLRA.3
The courts will always focus on the best interest of the child when deciding these schedules. The court will consider the child’s views and preferences, if they are old enough to articulate them. Another important factor judges consider when making parenting schedules is the relationship between the parents. In situations where there is high conflict between the parents, the court may make a schedule that minimizes the number of times the parents have to exchange the children to reduce the likelihood of conflict.
Factors that the court relies on to determine the children’s best interests are outlined in the CLRA. The court’s primary concern will always be the children’s best interests and not whether the parents feel that the schedule is “equal” or “fair”. For example, in Castro v O’Quinn4, one parent proposed a schedule that divided the allotted Christmas holiday school schedule exactly in half. The parent ignored the fact that Christmas Day and Christmas Eve would be important days for children and families who celebrate Christmas. The court then divided the holiday parenting schedule in a way that the children would be able to spend time with both parents on Christmas Eve and Christmas Day.
The children’s relationship with their parents is also a consideration when determining a holiday parenting schedule. In the case of Jackson v Jackson5, the mother had made significant efforts to demonstrate positive changes with respect to her parenting and the children had adapted well to increased time with her. The court ordered that the children’s holiday vacation be divided equally between the parties, despite the children’s close bond with their father, with whom they primarily resided. The judge found that this was consistent with the children’s best interests and that the benefit of having equal time with their mother outweighed the disadvantages of the children making a number of residential exchanges.
Where parents live in different cities, the courts will likely adjust parenting schedules such that the children spend longer periods of time with each parent. In Moreton v Inthavixay6, the Office of the Children’s lawyer had made a proposed parenting schedule in which one parent would have the first week of the holidays which included Christmas Eve, Christmas Day and Boxing Day, and the other had the second week of the holidays which included New Year’s Eve and Day. The order then stated that the parents would alternate between these weeks every year. The court felt that this schedule maintained maximum contact between the children and their parents, decreased the potential for conflict between parents, and also took into consideration the fact that the parents lived in different cities.
The reason the courts emphasize the importance of good communication and cooperation between parents is because it is not in a child’s best interest to be exposed to conflict. Therefore, depending on the case and the level of conflict and co-operation between the parents, the courts may limit the number of times the parents have to exchange the children.
Parents may also argue that the holiday traditions which they and their family feel is important should also be a factor considered in court. In Spurgeon v Spurgeon7, one parent argued that the Christmas holidays were important to her and her family, and therefore, the children should remain with her on Christmas Eve and Christmas Day. The mother tried to argue that since the other parent had not been celebrating Christmas for as long, the children should celebrate with her family. The court held however that even though this was an important tradition to one of the parties, that it was in the best interest of the child to spend part of Christmas Even and Christmas Day with each parent. Courts have held that family traditions enjoyed in previous years although important, ignore the present situation of the children as the family unit has changed as a result of separation. While past family traditions are important, they are not binding.8
Parents involved in holiday planning should bear in mind that for many families, the focus of the holidays is on the happy celebration for the children, and are not a means to score invisible points off the other parent.9
The holidays are an opportunity to celebrate and spend time with family and loved ones. If you require assistance in negotiating a holiday parenting schedule, or if you need a lawyer to advocate for you in court, please contact one of the lawyers on our family law team.
This article was written by Family Law Lawyer Hilary Jenkins and Articling Student Sarah White.
1 N v AS, 2020 ONSC 5292
2 Divorce Act RSC, 1985, c 3 s16(10) [Divorce Act].
3 Children’s Law Reform Act, RSO 1990, c C12 [CLRA].
4 2011 ONCJ 684
5 2016 ONSC 7829
6 2020 ONSC 6267
7 2016 ONSC 14
8 Curphey v Aldebert, 2012 ONSC 4628.
9 DR v KM, 2018 ONCJ 840.