The Christmas holidays are supposed to be a time for fun and family, but it can also be very stressful behind the scenes for separated parents. This is especially true if you and your ex-spouse or partner are not on the same page when it comes to dividing time, buying gifts and taking the kids on winter vacations. Whether you have been co-parenting for years or are recently divorced, the festive season can often stir up nostalgic emotions and present new challenges. Engaging in honest and open communication early on can prevent any last-minute surprises, but naturally circumstances can change, and you may need some guidance from a family lawyer or mediator. If you and your ex-spouse still can’t come to an agreement, you can ask the court to intervene so that you can move past the fighting and focus on making memories with your children. So how do I ensure time spent with my children for Christmas and the holidays? Let’s get started.
I don’t have a case open. Where do I start?
In British Columbia, if you have yet to open a family law case and would like to begin the process, you first need to decide which court you intend to file with: the Provincial Court or the Supreme Court. Unlike Provincial Court, Supreme Court is more formal and involves filing fees. There are certain matters that only the Supreme Court handles; read this basic overview to see the differences. Once you have chosen the court that best suits your needs, you must then fill out the appropriate forms and proceed to file your case. You can research how to start a family law case in Supreme Court here and in Provincial Court here.
I already have an open family law case, but circumstances have changed. Can I apply for a new court order?
Yes. You need to apply to the same court that has your open case. You can apply for an interim or a final family order, depending on your situation. An interim family order is a temporary court order that is made after a case has started but before it ends. A final family order is a judge’s final decision, which applies to both spouses in a family law case and is meant to last indefinitely.
I’m happy with the order or filed agreement I already have, but my ex-spouse won’t comply. What can I do?
You can apply to the court where a judge will take appropriate action.
Can I apply to change an existing order?
Revisions can be made to both interim and final orders for the right reasons. A court will consider modifying an interim order if things have changed since the order was made, or if one parent has important evidence that was not initially available. If you want to alter a final order due to significant life changes, it is encouraged that you speak with your ex-spouse to see if you can reach an agreement. A third party mediator can often help guide these discussions so that both parties are heard and happy about the outcome. If this is not an option, or if a resolution can not be met, you can apply for varying the order. In these cases, the court will usually want to determine whether there has been a substantial shift which impacts your or the child’s life.
I think the court made a mistake. Is it possible to appeal an order that is already finalised?
Yes. Keep in mind that changing an order is not the same as appealing an order. You can only appeal an order to a higher court if you believe the judge has made a mistake about the facts or the law.
What will the court consider when making an order?
The court will only consider the best interest of the child (or children) and is not influenced by the parent or guardian’s personal opinions. No matter what caused your separation, when it comes to court orders of this nature, the law in B.C. considers the health and safety of the minor to be above all else. The court will consider all the child’s needs, including mental health and emotional well-being, the ability of the person seeking access to exercise their parenting responsibilities, and the child’s need for stability. An agreement or order is not considered to be in the best interests of a child unless it protects the child’s physical, psychological, and emotional safety to the greatest extent possible. Therefore you need to ensure that you can substantiate why your request is in the best interest of the child.
Remember: if Christmas comes early this year and both parents are happy with any seasonal or long-term changes, then you can make a new agreement instead of applying for a court order. Co-parenting peacefully is ultimately the greatest gift you can give to your children (and yourself), and we are here to help make it happen. Whether that be through mediation or in court, please don’t hesitate to reach out to our family lawyers, Anna Okorokov or Michael Lederman for assistance, so you can make the most of the holidays with your family.
***The above blog post is provided for informational purposes only and has not been tailored to your specific circumstances. This blog post does not constitute legal advice or other professional advice and may not be relied upon as such. ***