by GLORIA ANTWI - Associate Counsel at the Gene C. Colman Family Law Centre
The Christmas tree is overflowing with toys in two separate homes but who will determine where the children open their gifts this year?
In an interview with the Globe and Mail, Justice Marvin Zuker of the Ontario Court of Justice noted mentally preparing himself every year for the onslaught of urgent motions. Since motions seem to be the litigants' tool of choice for last minute access, it is important to examine one's chances of success before filing an urgent motion.
1. The general rule
Rule 14(4) of the Family Law Rules provides the general rule: no motion may be served or heard before a case conference dealing with the substantive issues in the case has been completed. This rule is important because a case conference sets a far less adversarial tone than a motion. During a case conference, the issues can be vetted informally with a judge and the entire matter can move forward in an organized and orderly fashion. For a critical and in-depth examination of the Principles of Procedural Fairness and Case Conferences please see an article by Gene C. Colman originally published in Volume 20, Issue 2 of the Canadian Journal of Family Law and reproduced here.
Unlike a case conference, a motion requires affidavit evidence. While drafting this affidavit evidence, both parties attempt to put their best arguments for custody and/or access forward. This desire for custody and/or access can result in an affidavit filled with every parenting error the other party has ever committed. True or not, reading this (often public) court document can be painful and embarrassing for the targeted party. These affidavits may lead to ugly "affidavit wars" and hurt settlement prospects. For these reasons, the Court is abundently clear: dispensing with a Case Conference is an exception to the procedural requirements (Rosen v. Rosen (Ont. S.C.J.); Kobow v. Kobow, (Ont. C.J.); Gonzalez v. Trobradovic, (Ont. S.C.J.), at para. 24).
2. Exceptions to the general rule
There are, however, some exceptions to the general rule requiring a case conference before a motion. Rule 14(4.2) of the Family Law Rules notes that the rule does not apply if there is a situation of urgency or hardship or if a case conference is not required for some other reason in the interest of justice. Litigants have argued (with varying levels of success) that being deprived of one's children during the holidays creates a situation of urgency. It is not clear that (on its own) being denied holiday access is urgent. Luckily, the case law can help us determine if holiday access falls into one of the above noted exceptions and requires an urgent motion. Yelle v. Scorobruh (Ont. S.C.J.) succinctly outlines the factors considered when determining whether a matter is urgent. These factors include:
a) Whether the parties have canvassed earlier dates for a case conference with the family court counter and trial coordinator's office. (If so, the dates available should be included in the materials before the court);
b) Whether the parties have explored the local practices for dealing with family law matters and for obtaining earlier dates to address matters of immediate importance;
c) Whether the parties have had negotiations in an attempt to reach an interim without prejudice agreement;
d) Whether the best interests of the child are at stake including whether there is an abduction issue or other safety concern;
e) Urgency must be established in accordance with the case law, which includes abductions, threats of harm, and dire financial circumstances;
f) Whether a party will be severely prejudiced or suffer irreparable or non-compensable harm;
g) Other pressing issues such as domestic violence, mental health issues, and/or substance issues, criminal activity or serious anger management issues - this may bring the matter out of the normal procedure (as it may require immediate attention by the court); and,
h) The basket clause: "a case conference is not required for some other reason in the interest of justice."
Based on the above factors (and his/her own professional experience) a lawyer can help you objectively analyse whether or not an urgent motion is warranted. A lawyer can also help you incorporate these factors into a compelling affidavit.
While the urgency of a holiday access motion is determined on a case by case basis, the party bringing such a motion should expect the Court to closely scrutinize the motion, dismissing (with costs) motions found to be unwarranted. In other words, you may be required to pay some or all of the expenses incurred by the other party as a result of what the judge might perceive as your not so urgent, urgent motion.
3. Practical Considerations
Since an ounce of prevention is worth a pound of cure, it is important to explore how families can circumvent the need to bring an urgent motion for holiday access in the first place. The following are some practical tips and considerations.
a. Plan Ahead:
i. If there is no custody and/or access Order in place: If you have solid evidence that the other party will refuse to grant you parenting time during the holidays, you can commence an Application for custody and/or access, and then immediately bring an urgent motion for holiday access before a judge. Explain the circumstances in a sworn affidavit.
ii. If there is a custody and/or access Order in place: If there is already a custody and access Order in place, you still need to plan ahead. There is nothing worse than dusting off the old court Order during a heated holiday dispute only to find that it says "holidays to be divided equally between the parties." If the current court Order does not deal with holidays specifically, look ahead to see who will de facto end up having the children on the days that are important to you. If you have the children, offer a reasonable amount of time to the other party (it is the holidays after all). If you do not have the children, ask the other party for a reasonable amount of time well in advance. If the other party refuses, you should consult with a lawyer as soon as possible as it may be time to file a motion. In Mitchell v. Joy (Ont. S.C.J.) the Court noted: parties cannot manufacture urgency by their own delay in commencing proceedings (emphasis added).
b. Consider your travel plans: If you would like to take the children out of their home jurisdiction for the holidays, but there is no court Order dealing with that issue, make sure to discuss your plans with the other party well in advance. Offer to provide specific dates, an itinerary, contact information, and daily phone, Skype, or FaceTime access to the child. Similarly, if you are the party left behind during this holiday trip, do not monopolize the child's time with excessive requests for phone or cyber access.
The parent who is not traveling may need to provide the traveling parent with a notarized travel authorization allowing them to travel outside of Canada with the children.
If the other party refuses to consent to the vacation, discuss this with a lawyer as soon as possible.
c. Manage your extended family members' expectations: As well-intentioned as they may be, extended family members can make a bad situation worse. Their own desires to see your children (and to observe cultural or religious traditions) may create unnecessary scheduling complications.
d. Be Flexible: This is a great time to start a new tradition, like opening gifts on December 24th.
e. Respect your child's preferences: Older children will likely have their own thoughts and desires regarding their holiday schedule. Try to take this into account when making plans. If however, you believe that the other parent has turned the children against you, contact a lawyer as soon as possible.
f. The future is friendly - use the technology available: There are great scheduling and co-parenting applications available. One example is "Our Family Wizard." Our Family Wizard is a reasonably priced paid subscription application used in family law cases across Canada and the U.S.A. A similar and more Canada focused product can be found at the web site: Come to Agreement. If you are looking for a free option, try creating a Google Calendar and sharing it with the other party. The Canadian Department of Justice also has a Parenting Plan Tool.
g. Analyse your motivations: Be self-reflective. Is this genuinely about spending time with the children or are you trying to get even with your former partner? If both parties analyse what is driving them throughout the access negotiations, you are more likely to end up with a schedule that reflects the best interests of your children.
Let us close off with a quote by Justice Richard of the Northwest Territories Supreme Court, from paragraph 70 of his wise and well-reasoned decision Elkin-Hall v. Hall:
The mother objects to any disruption of, or variation from, the traditional Christmas activities and related schedule that the children have experienced and enjoyed in previous years. This position, of course, ignores the reality of the children's present situation. In those previous years the children were part of a complete family unit. That is no longer the case. Their parents are separated and are not living together. The law, and society, requires that the children have as much contact with each parent as is consistent with the children's best interests. It has not been shown that it is in the best interests of these children to continue with previous 'family' traditions with one parent (to the exclusion of the other), as opposed to developing new traditions for the children in recognition of the new reality. Past family traditions, while important, are not binding.