Skip to main content

For most Canadians, it's the season of sharing and family unity. But in courtrooms across the country, the annual fight is heating up over who gets the children for Christmas.

The final days before the holidays are a unique challenge for family court judges stuck with the task of ironing out last minute wrangles between separated and divorced parents.

"At this point, people are still having frenzied conversations and negotiations," said Sheri Hirschberg, a Toronto family lawyer. "The emergency motions will come next week."

Motions typically pit parents against one another for who gets to have the children with them on Christmas Eve and Christmas Day. Other frequent litigants are those who fear that an ex-partner is about to renege on letting a child travel at Christmas, and those who require court approval for a new boyfriend or girlfriend to pick up their children.

As the days get colder, judges know that temperatures will be on the rise in their courtrooms. A 20-year veteran of the Christmas rush, Mr. Justice Marvin Zuker of the Ontario Court of Justice said that he prepares himself mentally each year for the onslaught of emergency motions.

"There is more anger and emotion because it's Christmas," Judge Zuker said from Florida, where he was enjoying the calm before the storm.

"You try as much as you can to equalize things, but there can be yelling and so much emotion," he said. "It's as important for me to be a social worker and a psychologist as it is to be a judge. But, what they really need is a referee."

Most last-minute litigants have split up during the preceding year. Communication was likely a perennial problem in the relationship, so working out a fair-minded resolution to Christmas access can be a tall order. Some people are desperate to have their children with them if their own parents are old or ill and may not be around next Christmas to see their grandchildren.

"These people are just muddling through," Ms. Hirschberg said. "They are overwhelmed and trying to get their sea legs. People who weren't that good at communicating when they were together don't get any better at it after they separate."

Steven Benmor, a Toronto family lawyer, estimated that roughly half of those involved in a separation work out Christmas scheduling on their own. "These people split up and go on their merry way," he said. "There is no conflict."

The other half engage in varying levels of conflict. In a case heard in Toronto this week, a man was fighting off an attempt by his wife to limit him to two days with his young children over the holidays.

"It has been particularly horrible for the children," said the man, who cannot be named without identifying his children. "They are left in limbo. I've had to take inordinate time off work to prepare, and I don't even feel like setting up a Christmas tree this year."

Mr. Benmor said that extended family members often fan the flames of rancour by turning into "cheerleaders" for their side. "You get grandparents who say: 'We want the grandkids with us because her family is crazy,' or, 'Well, she was never good enough for my son, anyway.' "

"The reality of so many of these cases is that, at the end of the day, you wonder whether it is about access or another reason to get even with the other side," Judge Zuker remarked. "Quite frankly, some of them just don't like the perception that they are being taken advantage of."

Increasingly, far-sighted lawyers and judges persuade estranged couples to work out their holiday plans in advance. Many courts also ensure that the same judge hears every case involving a particular family to provide context and continuity. And some courthouses have mediation services where litigants can get instant advice from family lawyers.

But no measure can forestall every emergency. No sooner have judges recovered from the Christmas rush than a fresh, mini-rush begins: motions from parents whose children were not returned promptly after the holidays.

"I like what I do, but the people can drive you crazy," Judge Zuker observed. "I wish I had a dollar for every time I've said to someone: 'You think I got to look like this by accident?' "

Interact with The Globe