Friday, Dec 24, 2004

Child-access battles peak at Christmas

From Friday's Globe and Mail

For the maritally strained and the newly estranged, 'tis the season of Yuletide acrimony.

Family-law courtrooms from Victoria to St. John's are struggling in the thick of the annual “Christmas access” rush, a dismal season characterized by a procession of parents battling for access to their children on Christmas Day.

“I have been practising law for 30 years, and this is the worst year I can remember for people fighting to get access,” said Elizabeth Cusack, a family lawyer in Sydney, N.S. “I've never seen anything like it. People see Christmas as an emergency, and it just gets more emotional the closer you get to Christmas.”

This year's deluge could be connected to Christmas falling on a Saturday, throwing confusion into existing access orders that parcel out weekends without making special provisions for key dates such as Christmas Day, Ms. Cusack said.

Madam Justice Deborah Gass of the Nova Scotia Supreme Court said that in her Halifax courtroom, this year's Christmas access rush was typically grim. “It's always bad. Some parents think ahead of time and get a spot on the court docket, but others come in on an emergency basis.

“Every situation is unique,” Judge Gass added. “It is just a very difficult time of year for people whose world is not in order, especially for separated families. Everybody has such high expectations for Christmas, and everybody wants it to be perfect.”

The rush usually begins in early December. On Wednesday alone, Ms. Cusack said, she handled six cases for clients involved in “very high-conflict” battles to have their kids with them on the most highly prized access day of the year.

Many cases involve parents resigned to the status quo during the rest of the year but who suddenly want to become “Supermom or Superdad” at Christmas, whether or not it is good for their children, she said.

Other litigating parents simply cannot face the idea of waking up on Christmas morning without their children, Ms. Cusack said. “It has to be one of the worst times of your life, especially if you live in a big city and don't have extended family around.”

“Some use the children as pawns,” Ms. Cusack added. “And sometimes, we lawyers can also become overly partisan for our clients. We might not do what is the best thing for the kiddies.”

Other warring parents opt to go the opposite route, struggling to re-establish rituals that once were important to their now-splintered family. “It can be very confusing to children to have Mummy and Daddy under the tree on Christmas morning,” Ms. Cusack said. “The children may think, ‘Are they trying to make up and get back together?' It can actually be a lot worse than when there is a real fight going on.”

Yet another category involves parents who live far apart, she said. The non-custodial parent arrives in town for Christmas, only to find that the primary parent intends to obstruct access to the children.

“Sometimes, people split up right around Christmas — perhaps over financial problems — and there is a scramble over what they are going to do about the kids,” Judge Gass said.

Each side in a Christmas battle typically produces an affidavit that states the case for access. If attempts to resolve matters fail, there may be testimony and attempts by the judge to mediate and soothe overheated emotion.

Judges try to do what is best for the family — particularly the children — though this often is difficult to discern, Judge Gass said. Some judges almost always give Christmas Day to the primary-access parent, she continued; others try to encourage both parents to reach a saw-off, giving each one some prime time with the children.

Judge Gass, twice married and a stepmother, said she has learned through personal experience that the key to Yuletide peace lies in de-emphasizing the extraordinary significance of Christmas Day and making other days of Christmas Week feel equally important.