The Case of Omar Khadr

Why did the Canadian government just settle Khadr’s file for $10 million?   Here are some of the laws that the Harper government broke when handling Khadr’s file:

(ii)Convention on the Rights of the Child (CRC)

Canada has a duty under the CRC to “take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical and mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child” (Article 19(1)). A child is a person under the age of 18 (Article 1).

In addition, Canada must ensure that “[n]o child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment”, that “[n]o child shall be deprived of his or her liberty unlawfully or arbitrarily” and that the “arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time” (Article 37(a) and (b)).

Canada must also ensure that “every child deprived of liberty shall be separated from adults” and “have the right to maintain contact with his or her family through correspondence and visits”, except in exceptional circumstances (Article 37(c)). Further, every child in custody “shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action” (Article 37(d)).

Canada also has a duty to “take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of: any form of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment; or armed conflicts” (Article 39).

Finally, Canada has recognized “the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth” (Article 40(1)).

The CRC imposes on Canada some specific duties in respect of Mr. Khadr. Canada was required to take steps to protect Mr. Khadr from all forms of physical and mental violence, injury, abuse or maltreatment. We know that Canada raised concerns about Mr. Khadr’s treatment, but it also implicitly condoned the imposition of sleep deprivation techniques on him, having carried out interviews knowing that he had been subjected to them.

Canada had a duty to protect Mr. Khadr from being subjected to any torture or other cruel, inhuman or degrading treatment or punishment, from being unlawfully detained, and from being locked up for a duration exceeding the shortest appropriate period of time. In Mr. Khadr’s case, while Canada did make representations regarding his possible mistreatment, it also participated directly in conduct that failed to respect Mr. Khadr’s rights, and failed to take steps to remove him from an extended period of unlawful detention among adult prisoners, without contact with his family.

Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.)

Legal Rights

  1. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
  2. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.
  3. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

  1. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

The Supreme Court of Canada applied these laws in their analysis of the government’s conduct and cam to the following conclusion in Canada (Prime Minister) v. Khadr, [2010] 1 SCR 44, 2010 SCC 3 (CanLII):

“This Court declares that through the conduct of Canadian officials in the course of interrogations in 2003-2004, as established on the evidence before us, Canada actively participated in a process contrary to Canada’s international human rights obligations and contributed to Mr. Khadr’s ongoing detention so as to deprive  him of his  right to liberty and security of the person guaranteed by s. 7 of the Charter, contrary to the principles of fundamental justice. “

 

This finding put the government on the hook for their own legal fees, Khadr’s legal fees, and the damages that flow from their breach.  A review of the case law on similar findings shows that the $10 million in damages is in line with what other cases came up with.  It’s not about Khadr – it’s about making sure that the Canadian government thinks twice before allowing Canadians abroad, particularly children, to be tortured in inhumane conditions.  Sending CSIS agents to participate in that torture was Harper’s decision.  Canadians elected Harper as Prime Minister, and now we have to accept responsibility for his actions, whether we like it or not.   Trudeau did that, because he had no other option.  There is no appeal from the Supreme Court of Canada.

 

Real estate lawyer’s common advice on Agreements of Purchase and Sale

Real estate lawyer review

As a real estate lawyer I am routinely asked to review agreements of purchase and sale (“APS”) .  This is now becoming more and more standard as realtors insert solicitor review clauses in their APS in order to protect themselves and their clients.  I though I would share some common advise that I give out on these reviews.

Deposit

No less than $5,000, I recommend $10,000.  If someone is going to buy a property they will definitely have $5k – $10k on hand and there is no reason why they should put less down.  Gives the vendor additional protection in the event that the deal goes sideways.

Dates

Give everyone time to get things done.  Title search and closing should be given at least 4 weeks.  Can it be done in less?  Yes.  But the reality is that if you rush the office workers that have to put the deal together you increase the risk of a mistake being made.  Mistakes cost time and money.  Lenders are typically large institutions that are not agile and responsive and you have to give everyone the time and space they need to get everything done.

Conditions

Pretty much every deal should have a condition for financing and home inspection, unless some special circumstances exist.  I routinely advise vendors against conditions for warranties and SPIS.  These can lead to future litigation if the dishwasher breaks three days after closing, for example.  Leave them out and rely on the doctrine of caveat emptor – buyer beware.  It’s cleaner and can avoid planting the seed for a future dispute.  If I am reviewing for a buyer I of course won’t say anything – it’s to their benefit to have those conditions included.

If you or your realtor have questions on your agreements of purchase and sale feel free to contact our office for assistance at (613) 233-7000 or send an email to info@delaneys.ca.  You can also visit https://ottawalawyer.com for more information on our services.

 

Contingency Fees

Contingency Fees

I have read some negative press lately about Contingency fee agreements between clients and lawyers.  I have been a personal injury lawyer for over ten years and I thought I would share my perspective.  I offer contingency fee arrangements for clients, but am not necessarily advocating for or against them per se.  I think it’s important for clients to have the option to choose from.

Why contingency fees?

If you have been seriously hurt as a result of an unexpected accident then chances are your life has changed dramatically.  There is an interruption in earnings that most people can’t afford for long.  Accident benefits and disability insurance proceeds may help to offset those losses but let’s not kid ourselves into thinking that there will be a total income replacement.  Just getting accident benefit carriers and insurance companies to pay basic benefits that people are entitled to can be challenging.  I have one case in recent memory where a young man lost the use of his right arm entirely.  His insurance adjuster put him in the minor injuries guidelines where his was only entitled to $5,000 in medical rehabilitation and no income replacement.  It took us months just to get him the basic coverage that he had paid for under his accident benefits policy.  Most, if not all, of the personal injury clients that have walked through my door are simply not in a position to pay the firm’s $3,000 retainer.  That’s just the retainer – regular bills for civil litigation will typically range between $20,000 and $50,000 per year.  In my experience personal injury clients are quite happy to have the case proceed on a contingency basis.

Lawyers prefer cash clients

From my perspective I would prefer a cash retainer from personal injury clients and have them take 100% of the proceeds of settlement.  I would issue monthly invoices and protect my cash-flow.  There would be no risk in the litigation for me.  I wouldn’t have to pay thousands of dollars regularly to fund the expert reports necessary to be successful in personal injury litigation.  I’ve invested literally hundreds of thousands of dollars in legal fees in cases that are by no means guaranteed to succeed.  I setup lines of credit to cover my overhead and to help manage my cash flow.  I’ve made close calls that didn’t work out – clients didn’t meet threshold or exaggerated their injuries only to be discovered with video surveillance by the defendant insurer.   I don’t recover any fee income from those cases – that work-in-progress literally disappears and I’m left wondering why I didn’t just spend time with my kids instead.

Should we cap contingency fees?

I take files on contingency because the reality is that there really is no other choice.  I’ve read recently that Mike Colle, MP from Eglinton-Lawrence put forth a bill that caps contingency fees at 15%.  That figure is completely ridiculous and shows a total lack of understanding of the issue from Mr. Colle’s perspective.  The reality of the situation is that if you capped contingency agreements at 15% you would be stripping disabled people of their rights and putting money into the pockets of insurance companies and their stakeholders.  That’s what we’re really talking about here:  how is it that we can take a vulnerable section of society, like a group of disabled people, and take advantage of them?  The answer: let’s hamstring the only people out there fighting for them so that we can keep more money in the banking and insurance industry.

Thankfully we have the Ontario Trial Lawyers Association out there who simply will not allow this to stand.  The contingency rates in Ontario are fair and in line with what lawyers across the globe are charging to assume the risks involved in personal injury litigation.  This bill will fail and the Association will continue to advocate for people that have been seriously injured and trying to get some semblance of their lives back.

If you are looking for the real story here – check out the deductible on awards for pain and suffering.  Basically a person who has suffered a permanent and serious impairment as a result of someone else’s negligence has to pay approximately $40,000 to the insurance company for absolutely no reason whatsoever.  Last I checked auto insurance profits in Ontario ranged between $3,000,000,000 and $4,000,000,000.  It’s pretty easy to figure out where that money came from..  and unfortunately it doesn’t seem to be enough.

Get rid of that deductible

I’m going to do my part and work hard and try to get as much as I can for people that have been hurt.  I can’t control what parliament does other than to cast my vote.   I hope that these issues raise awareness and that the Ontario government will look at getting rid of the deductible and standing up for the vulnerable people in this province that are being taken advantage of.  Like and share and create traction – these people really do need help and every little bit counts.

 

When in doubt, dial out

Back in 2010 mobile apps were the latest and greatest thing.  Delaney’s Law Firm was one of the first law firms in Ontario to engage mobile device users and our law firm app can be found here:

https://itunes.apple.com/us/app/delaneys-law-firm/id385748727?mt=8

Check it out – it has a child support calculator, land transfer tax calculator, and net present value calculator.  All useful tools for lawyers and clients dealing with family law, real estate law, or personal injury law – the firm’s three main practice areas.

If you find yourself in a jam hit the app’s big red panic button and someone at the firm will field the call and offer a free 30 minute consultation.   You can also phone (613) 233-7000 or email info@delaneys.ca to get started.

Holiday access disputes

Red flag: access dispute coming

You can easily spot a high-conflict family law file through a Christmas or holiday access disputes.  A typical situation: one parent has the opportunity to go away (i.e. the grandparents have paid for a family cruise and want the kids to go) but it’s the other parent’s time with the Children. This time was hard fought in an acrimonious custody/access dispute. The answer, as everyone will guess, is no.

These are recurring themes. Mother thinks father is being totally unreasonable and trying to get back at her. Father is untrusting because mother has controlled and limited his contact with his own children. Both feel completely justified in taking the positions they are taking, and the conflict then escalates into high emotion confrontation where they both attempt to move the other party through emotional distress.

I need answers

What is the solution?

Well there isn’t really an easy fix here. It takes work and an ongoing commitment. Multiple mediation sessions. Ongoing counselling. Online software purchases. There are a multitude of things that separated couples try that are sometimes successful but often end in disheartening failure.

Unfortunately the court system is no different. The motions court is overrun at the holidays with motions on access. Each motion runs between $3,000 and $5,000, and if you are too late (ie. you haven’t booked by November) you likely won’t even get heard until January or February. The wheels of justice turn slowly. If you have an issue with that discuss the amount of funding that the Attorney General receives with your local MP.

My recommendation as a family law lawyer mirrors that of any judge of the Superior court. See the matter through the eyes of the child. Understand their perspective and their wants and needs. Make an effort to understand more deeply the other parents foundation and address it through clear communication and multiple offers. Put the work in stay calm and patient. Be the role model and teacher that your child is relying on you to be. These issues are not insurmountable by any stretch, they simply require time and effort to resolve.

Those words are easy advise to give, and sometimes hard to follow. I understand that. And if you fall, then pick yourself up and get right back at it. A good resource that I have recommended to clients is Dr. John Gottman’s research. Check it out on Amazon by clicking here.

We are here to help.

If you are unable to resolve your family law issues then consider booking a one-hour consultation with one of our family law lawyers.  Sometimes a second set of eyes and an objective opinion can go a long way in helping to improve things.  Call (613) 233-7000 or email info@delaneys.ca today.

Access disputes – Tips from an experienced family lawyer

Access disputes

Access disputes in family law are very common and sometimes require the assistance of a family lawer to resolve.  This article will help parents who have recently separated decided what time-sharing arrangement will work best for their family.

Be flexible

Children’s access arrangements will often change over time.  As their school/extra-curricular activities change so will their access schedule.  Their age will also play a large role in how much time they spend with each parent.  Because these external factors play such a large role it is important that separated parents be flexible and understand that any arrangement that is reached will most likely be temporary.  Being flexible with access arrangements will reduce the amount of family conflict and improve your children’s long term outcomes.

Build a consensus

Effective access schedules are ones where both parties have voluntarily agreed that the schedule is the best one available for the children.  Sometimes the best way to accomplish this is to try both parent’s schedules and see which one works better.  If one parent wants week on week off and the other wants every second weekend and one night a week, you could try one during the school year and one during the summer.  It’s important for both parents to try the other’s “plan,” because you need both parents to buy-in in order to successfully implement the agreed upon access schedule.

Use the Arizona Access Guidelines  as a starting point

In Arizona they have a set template for child access based on experts general recommendations.  The guidelines can be found here.   If you are having difficulty deciding which access regime is best – start with what the guidelines recommend and build from there.  It can be helpful to have an objective third party suggest the starting routine where the trust between the two parents has been greatly diminished.

Stay Organized

Parents trying to figure out a decent access schedule should start with a two week map:

S  M  T  W  T  F  S

S  M  T  W  T  F  S

These diagrams help you to figure out who is where, and when.   There are also now web applications that are designed to help separated families co-ordinate between two households.  Try Our Family Wizard.  It is important for both parents to stay organized and understand their own responsibilities in order to avoid conflict.

Understand Your Alternative

If parents are unable to agree on an access schedule a court application may be required.  Typically the cost associated with a court application, case conference and motion would range in the $8,000 to $15,000 range.  The parents failure to build a consensus with respect to access means that a judge, who is a stranger to the family, will determine what is best for their children.  Judge’s will often ask for and rely on expert’s reports ($6,000 – over and above the costs noted above) in order to make their decision.  Judge’s placed in that situation may also give neither parent what they want;  in that scenario $30,000 to $40,000 of family money just went out the door and both parties are still at square 1 in terms of figuring out how to work together.  Certainly there are better uses for those funds.

Conclusion

A good family lawyer can be worth their weight in gold early on in a separation in terms of resolving conflict and helping a family adjust to their new reality.  More importantly, however, is the parent’s willingness to be flexible and to respect the other side’s perspective on what is best for the children.  By trying out a few different regimes parents can find what works best for the family as a whole and save thousands on expensive motions and experts.  If you are having a hard time finding the sweet spot in your family’s access dynamic you may want to book a one hour consultation with one of our experienced family lawyers.

 

Dealing with negative Google reviews through the court system

Recently I have had the displeasure of receiving negative reviews on Google.  You can read the review here:

Screen Shot 2016-08-02 at 3.43.51 PM

 

 

 

 

 

Screen Shot 2016-08-02 at 3.43.37 PM

 

 

 

 

 

 

 

Dealing with negative feedback is never easy.  There are a couple of issues that make these reviews even more challenging.

“Important client”

I received a review from someone called “Important client.”  The review was vague and written poorly.  I doubt very much that this review was legitimate as it was written poorly, mentioned no details of the client’s experience, and overall seemed bogus.

“Tedd Broeren”

This review was also vague – the user had only recently created a Google address and had only one thing attached to their Google account – this review.

If these reviews were written by people who weren’t clients of the firm then they would constitute a libel against my company and I would be able to recover damages against them.  There are several hurdles that have to be overcome in order for this to happen.  I’m going to outline them for anyone else out there who is dealing with this issue.

1.  Anonymity

“Important client” is posting using a pseudonym and has an anonymous account.  In order to figure out who this user is Google will require a court order in order to disclose any of their personal information.  With a court order I should be able to get the internet address and email attached to the account.  Once I have that I have to get the Internet Service Provider to provide me with any information attached to that account – for example the billing name and address.  Realistically though, this all may lead me nowhere.  The email address could have been setup in a public library using a fake name and I would be no farther ahead; in fact I would be way behind because the time associated with that wild goose chase is worth about $15,000.

2.  Judgement proof

Let’s assume that I get the name and billing address and am actually able to locate “important client.”  Let’s also assume that they weren’t so important and in fact never were a client of the firm. Going down the yellow brick road let’s finally assume I am successful in obtaining a judgement against them for the libel.  Just because I have a court order doesn’t mean that I will get paid on it.  If there are no assets to enforce against I will be out of luck.  Further to that a person can declare bankruptcy (or perhaps they have already) and the debt owing under the court order will be abolished.  Once I person has been stripped of their wealth and access to credit there isn’t much else you can (should?) do to them.

3.  Fair comment

Let’s go back and find out that either/both of the reviews were posted by former clients of the firm. In that instance they are allowed “fair comment” – meaning that they are entitled to leave a negative review so long as it is true and fair comment on the firm’s services.  In that case I am out the time/money it took to find out who they actually are.

4.  Jackpot

My only good outcome (!?) on this is for both of the reviews to have been posted by either competitors or people hired by my competitors, some or all of whom have deep pockets.  In that case I have a strong case for libel and can proceed with the litigation.  Once libel is proven Damages are assumed and courts are typically fair and generous when it comes to libel.

Typically I wouldn’t advise a client to proceed with this kind of litigation.  It’s expensive.  It’s high risk.  You are likely throwing your money away.  My recommendation would be to spend the money that you would pay into this kind of litigation on marketing strategies that would “drown out” the negative reviews and help to offset their negative impact.  But, like many lawyers, I’m not going to follow my own advise.  I am going to chase this “important client” to the ends of the earth and make him/her pay…

Stay tuned and I’ll try to post regularly on my progress so that others can learn how the legal system will deal with anonymous negative reviews on Google.

Why use a family lawyer in Ottawa?

Family lawyer v. Self Representation

family law lawyer

The number of self-represented family law litigants going through the court system has risen sharply in the past decade.  I would guess that the reason is similar to the number of for-sale-by-owner homes; people have access to much more information on the web and as a result are able to more effectively self-represent as an alternative to engaging a family lawyer.

So what are the circumstances where a family lawyer is appropriate, and when should try and go it alone?  I will canvass this issue briefly in this post.  There is one caveat: I am, to a certain extent, a family lawyer, and also employ two other family lawyers.  Conflict of interest disclosed and noted!

Use the free 30 minute consultations to your advantage

First of all many family lawyers will offer a free 30 minute consultation.  There is no reason why someone facing divorce or family law issues should not avail themselves of these opportunities.  You can cover a lot of ground in 30 minutes if both the client and the lawyer are prepared for the meeting.  There is further nothing stopping you from visiting a few different family law lawyers to get second and third opinions, and to see if there is a “fit” anywhere.  Ask the question: Do I really need a family lawyer?

After the initial consultation you will have to consider your options.   A typical family law retainer is going to be between $1,000 and $3,000.  Some lawyers will bill off this retainer from the start, others will hold the retainer in trust until the matter is resolved.  So under what circumstances should you law out the cash, and when should you try and go it alone?

Typically family law lawyers add the most value when there is either high conflict between the parties, or if the matter has multiple issues and is complex.  If the parties get along reasonably well and only have one or two issues to resolve this is an instance where you can self-represent and save on legal fees.

If you do decide to self-represent you will typically end up with a separation agreement.  It is always a good idea to take the agreement and have a lawyer review it and provide a certificate of independent legal advice.  This provides an extra layer of protection if one of the parties attempts to set aside the agreement down the road to make changes to it.  It is very difficult to set aside an agreement where someone has had the opportunity to receive legal advice.  There have also been situations where agreements have been patently unfair simply because the parties weren’t aware of how family law operates in Ontario.

If your matter involves children, complex financial matters, domestic violence, or if you simply want the peace of mind that something is being done right, then you should probably engage a family lawyer.  The reality is that if you are going through a separation there is likely already a significant amount of stress resulting from that change and that stress is detrimental to you overall well being.  You simply can’t replace the years of studying, experience, and continuing legal education that a lawyer receives by searching the internet.  I have also come across people who are their own worst enemy and sometimes having an agent can help expedite a resolution much more quickly and peacefully than would otherwise be the case.

Thanks for taking the time to read this post.  Please like and share, retweet, et cetera.

 

Custody and the Best Interests of the Child

Custody in family law

I am often consulted by parents who have separated and are in conflict about child custody.  In most cases parents don’t understand what custody actually means – they believe it has to do with where the child will live or who should pay child support.  Custody actually represents decision making authority.  One of the concerns that separated parents have in most cases is that the custodial parent will use their authority to the detriment of the non-custodial parent.  Conflict in marriages often has a “power/control” element to it – one parent has an issue, and they attempt to solve their issue by controlling the other.  At it’s heart it’s really a communication issue – the parents need to be able to communicate more effectively and solve problems mutually.

Custodial decisions are characterized as major decisions with respect the child.  They surround the “incidents of custody” – medical, education, religion.  The day-to-day decisions surrounding children are made by the parent who they are with at the time.  My advice to parents fighting over custody is to look at the particular incidents of custody and examine where the actual differences lie.  Most parents will have already made the major decisions – the child is baptized, or not, they are already attending a particular school, and so on.  If you build those decisions right into the agreement (ie. the child’s religion shall remain x unless both parties agree otherwise) you can resolve the conflict without spending a lot of money on lawyers.

Another alternative that I have had some success with is to divide up the incidents of custody based on the parents skill sets.  If one parent has traditionally worked with the child’s school administrators and teachers and has done well in that role, then assign that particular incident of custody to them.  In all of the cases – custody often deals with major decisions – and those decisions remain reviewable by a judge if a parent strongly disagrees.

Custody battles are expensive – expert evidence is required ($6,000 to $10,000), interim motions ($5,000 per), examinations for discovery ($5,000 per) – they all add up and the money spent would often fund a post-secondary education.  You have to weigh the cost-benefit of fighting over an uncertain decision that may not have any impact on the child’s best interests.

If you have a custody issue that is hampering your family’s ability to function happily and is creating conflict, please feel free to contact me.  I offer free 30 minute consultations for new clients and I may be able to help you work through your family law issues.  Children have significantly higher long term outcomes when their parents are able to manage their relationships effectively.  If you need help reaching that goal please contact my office and schedule a consultation.

Access during the Holidays: Who Gets the Kids?

Child Access following divorce

Deciding where the children will live following a separation or divorce can be one of the most contentious issues in family law cases. Determining where the children will spend holidays, vacations, and other special occasions can be particularly troubling.

Many court orders and separation agreements include a generic, unspecified term, such as: “The holidays to be divided between the parties equally, in accordance with the best interests of the child.” This can work where there is little conflict and good communication between the parents. It gives them flexibility to create a holiday access schedule that suits their needs. It also allows them to change the schedule from year to year, without having to create a new agreement or get a new court order.

However, if the parents do not communicate well, then including an unspecified holiday access provision assures a return to court (at worst) or lawyer-assisted negotiations (at best). It escalates the conflict between the parents. The parties are often in a time crunch to sort out access leading up to a major holiday or vacation. Added cost, time, and stress are guaranteed.

Therefore, lawyers and other family law professionals must be aware of the importance of drafting effective provisions relating to holiday access into their separation agreements and court orders. In order to do so, we must look at what the courts tend to order with regard to holiday access.

The test for determining access is: what access schedule is in the best interests of the child? (Divorce Act, RSC 1985, c. 3 (2nd Supp), s. 16(8).) Courts have found that having access to both parents during the holidays is generally in the best interests of the child. A review of the case law indicates that the following factors will influence a court’s determination of how much of a particular holiday will be spent with each parent:

  • The established pattern of traditions;
  • The age of the child;
  • The religious observances of each parent; and
  • The geographical distance between the parents.

The courts have found that it is in the best interests of the child to keep the “status quo” as much as possible when it comes to holiday traditions. Where a parent can show that they have an established holiday tradition, the Courts are likely to craft an access schedule that maintains that tradition (see, e.g., Arnott v. Arnott, 2012 ONSC 1822).

The age of the child relates to the established pattern of traditions as well. The older the child, the more established the traditions of the family.

Where the parents have different religious beliefs, the courts have found it is important for the child to be exposed to both sets of beliefs (see, e.g., S. (L.L.) v. G.(E.), 2002 ABPC 88). Where the parents share the same or similar religious beliefs, the courts have found it is in the best interests of the child to have access to both parents during the holidays (see, e.g., Arnott, supra, and Rosenberg v. Minster, 2011 ONSC 4758).

In Torbey v. Torbey, the court preferred the father’s proposal for Christmas holiday access, due to the 500km distance between the parents. This made the mother’s proposal of splitting the Christmas holiday impractical (2002 ABQB 192).

This post is based on the paper entitled “Who Gets the Kids?: A Review of the Case Law Regarding Access During the Holidays” by Eva I. DiGiammarino.” 

    If you have conflict in your family with respect to access issues you may wish to hire a professional to help resolve those issues.  Children whose parents are conflict-free are happier overall and will have better long term outcomes.