Holidays can be difficult for separated families. It may be impossible for the children to celebrate with both parents and their families or to have the most important time, that is, Christmas morning, with both parents. So how can separated parents divide up those special times?  Doing so can be one of the biggest challenges after separation or divorce.

When it comes to holidays, the first and most important consideration is that these are special times for the children too. Often they are even more special for the children than for the adults. The children do not want to spend these special times marked by fights among their parents. Especially fights where the child must take the side of one loved parent against another loved parent. That can ruin the entire special day or the entire holiday season for the child. Parents who love and want to protect their children must avoid fights over their children at these special times. It is always more important for the children to be happy than for a parent to be right. Of course, finding a fair plan for the children over the holidays can be hard. There are a few general principles that parents can use to help them make their plans.

The Golden Rule for Parenting After Separation

Where a judge has to decide what time the child gets to spend with each parent over the holidays, the main consideration is what is in the children’s best interest. What is in the best interest of the child always trumps what is in the best interest of the parent. What is best for the child can vary from family to family and can be affected by what is usual for the family.

What is best for the children during these holidays and lockdown remains the focus of the Courts and should be the focus of every separated parent.  Every Family Court Judge who has faced making a decision about parenting has commented about how the pandemic represents extraordinary times. It is an event that is having a profound impact on children, even children who are not in the midst of parenting conflict.  Justice McGee noted that even young children will carry the residual emotions into adulthood, at which time those children will reflect back on whether their parents eased their fear and disruption, or whether their parents were focused on their own needs.  How parents act during this difficult time not only sets an example for their children, but can affect their children’s development.  It has never been more important to put children’s needs first and do whatever is necessary to avoid conflict – especially during the holidays.

The Impact of the Pandemic

Family Court Judges have also made it clear that it is essential for children to have relationships with both parents during the pandemic. Judges have repeatedly quoted Justice Pazaratz’s decision early in the pandemic in which his Honour said “In troubling and disorienting times, children need the love, guidance and emotional support of both parents, now more than ever.”

Judges have specifically held that parents are expected to find ways for children to move between homes and spend time with both parents in a safe way.  Only actual EVIDENCE, not speculation, that a parent is putting children at actual risk of harm will cause a judge to restrict parenting.

As public health officials are saying everyone must limit contact with other people, it seems like it might be in the children’s best interest to stay in one spot and have contact with as few people as possible.  Obviously, it would not be in the children’s best interest to engage in any activity that could put them at risk of infection.  That certainly has impacted what parents are doing with their children on a daily basis throughout this crisis.

However, the current view of parenting professionals and judges is that having contact with both parents is important to a child’s sense of well-being and healthy development.  This means that seeing both parents is also in the child’s best interest.  Children suffer when deprived of contact with their one of their parents.  They suffer even more when there is conflict between their parents over things like the schedule.  So, disturbing the current arrangements without your ex’s agreement could lead to some serious situations and repercussions, perhaps even serious consequences imposed by the judge down the road.

To summarize, the decision that parents have to make is: is it in the children’s best interest to remain isolated with one parent, so as to avoid the chance of infection, or is it in the children’s best interest to spend time with both parents even if that means they will come into contact with other people?  Again, a lot depends on the new specifics of the situation.  If the children can go from one asymptomatic parent to the other parent through a method of travel that does not involve them coming into contact with a lot of other people, and both parents are not going to engage in behaviors that are currently considered risky or that could result in the spread of the virus, then there may be no reason to change the arrangements at all.

What Judges Think is Fair During the Holidays

Specifically with respect to the holidays, there are an abundance of decisions from Family Court Judges about what is fair.   The following are what most Family Court judges expect:

First, children should rotate where they wake up on Christmas morning or with whom they spend special events. Christmas is often the most problematic, but this can apply to any holiday or special event that is of particular importance to the family. Children should get the opportunity to spend this time with each parent. But keep in mind that for really young children, the fight may not be worth it. They may not know what day it is, so it may be possible to create a special time on any day.

Second, where possible, traditions should continue for the children. This may conflict with the first point. But that is usually rather an opportunity to resolve the conflict than to create it. If for example, one side of the family has traditionally celebrated Christmas on Christmas Eve, and the other side on Christmas Day, it can be possible for the children to attend both family celebrations every year rather than miss one. Dinner on Christmas Day is not a prize to be won. Especially if it means ruining your family’s traditional Christmas Eve celebration. Be sensible and practical about how the children can maximize their celebrations.

Third, holiday time is usually shared equally. As with the first point, the children are getting a good opportunity to experience the holidays with each parent and their families. There are some obvious exceptions to this, such as when such an arrangement is not safe for the children or where one parent has to work and cannot take advantage of the extra time with their children. Again, this division of time has to be what is best for the children.

Fourth, for Christmas, parents often share the time from Christmas Eve to Boxing Day equally and then share the rest of the school break equally. For this special period, it makes sense for the special day to be divided and it can make no sense for one parent to get the entire week around Christmas and the other parent being shut out of Christmas entirely.

Fifth, travel with the children is okay during the holidays as long as it does not interfere with the other parent’s holiday. There are steps to be taken when the other parent refuses to let you travel without good reason. 

Sixth, trying to give bigger or better presents than the other parents teaches the children to be manipulative. The children will play one parent against the other for the better gift when they know that their parent will fall for it.

Seventh, just because you are angry or emotional about the holidays after your separation does not mean your children are feeling the same way. Although it can be hard, parents should try to make holidays a happy time for their children. The separation was not the child’s fault, so they have no reason to feel angry or guilty.

Trashing the other parent around the holiday table or at any other time the children are present is never okay. Family court judges say that is bad parenting and even a reason to change custody or the parenting schedule.

During the pandemic, things become more difficult when one parent decides that he or she does not want to follow the advice of public health officials.  Or, when a parent insists on engaging in other risky behavior at this unusual time.  Chances are that if a parent is going to engage in risky behavior now, they probably have engaged in it before and the parenting arrangements take that into account.  If the arrangements do take that type of behavior into account, then no change may be necessary.  However, if a parent is insisting on engaging with the children in activities that are clearly not in the children’s best interest in light of the advice and information from our public health officials, then changes may be necessary.  The Ontario Courts have supported the directions from Public Health Officials.  If a parent is going to disregard those directions, thereby putting a child at risk, the Family Court will intervene. 

But what most kids of separated parents want during the holidays is to be free from experiencing their parents fighting.  Parents must put the children first, realizing that children need both parents  and that COVID19 means that everyone has to be careful about making that happen.

Taking the High Route

Nothing ruins holidays for children like fights between their parents. It is one of the most psychologically harmful things parents can do to their children. As unfair as the other parent may be to you over organizing the holiday, exposing your children to conflicts over or about the holidays is more unfair to the children. If you cannot get matters sorted out before the holidays in or out of family courts, then it is much better to take the high route and save your children from the fight. Then take this to the judge or an arbitrator to fix it for the next holidays. The judge will appreciate that you put your child’s well-being ahead of your own and they will be displeased with any parent that uses their children as pawns over the holidays. Taking the high route can only lead to things working out better for you and your children in the long run.

“This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”