While most families across Canada are gearing up for the holiday season, for those who have recently separated this time of year can bring a new set of challenges. This is a common experience for many, as a 2016 University of Washington study found August to be one of the peak months for couples to separate in the Washington.
If the same holds true for Ontario, many families will be grappling with how to celebrate the upcoming holiday season as a split-family. Newly separated spouses will have to think about how to tell their loved ones about the separation, agree on where and with whom to celebrate the holidays, how to divide their time, money, favourite holiday decorations or even holiday traditions, moving forward. These are difficult issues to navigate and come to agreement on for anyone. All couples going through a separation, whether individually or together, can benefit from the advice of a qualified professional to discuss and hopefully resolve these difficult issues, including a therapist, a mediator or a family lawyer.
Telling Loved Ones About the Separation
When breaking the news to their loved ones, it is best for newly separated couples to refrain from making disparaging comments about the other spouse, particularly for those with children and especially in their presence. Such comments not only negatively affect the children, but they can become grounds for more serious legal consequences with respect to decision-making and parenting time, and can make it more difficult to separate amicably.
Where to Celebrate the Holidays
In Ontario, each spouse has an equal right to possession of the matrimonial home, even if one of the spouses do not own the matrimonial home on title. This right may only be offset by way of a court order or an agreement for one of the spouses to be granted the right to exclusive possession of the matrimonial home.
The same right to possession does not extend to a property that is not a matrimonial home nor a jointly owned property. For example, the family cottage that is owned solely by one spouse. Even if you believe you are entitled to or can make claims against the family cottage, for example by way of a constructive or resulting trust, you may still not be able to enter the family cottage this holiday if you are not on title, without the express consent of the owner, unless otherwise ordered or agreed.
If a spouse wishes to celebrate the holidays outside of the matrimonial home, they have the right to re-enter the matrimonial home at the end of the holidays- however they should speak to a lawyer before leaving the matrimonial home for an extended period. If the occupying spouse happens to change the locks or prevent the other spouse’s return to the matrimonial home in another way, that spouse ought to immediately consult a family lawyer.
With Whom to Celebrate the Holidays
As adults, families and friends are of course free to make their own decisions on whether to contact the other spouse after the news. However, with children involved, there is more to consider.
If the newly separated spouses have young children, but do not yet have a parenting plan in place with respect to the holidays, this may be a good time to speak to a legal professional about how to reach an agreement on one, which includes a holiday schedule. The earlier you start this conversation, the better your chances of avoiding unwelcome and painful conflict amid your holiday celebrations.
Some common ways to share the holidays with the children in a split-home reality include:
- December School Break: from the last day of school at the start of the December school holidays until the first day of school at the end of the December school holidays, children may spend the first half of the holidays with one parent, and the second half with the second parent. Parents may decide to switch the first and second half of the December holidays next year, rotating each year thereafter.
- Christmas: parents may either decide to split the Christmas into Christmas Eve and Christmas Day, with the children spending Eve with one parent and Christmas Day with the other parent, or decide that the children will celebrate the Christmas holiday with one parent this year, and with the other parent the following year.
- Boxing Day: some parents may make special provisions for Boxing Day, for example, if a parent has the children from Christmas Eve to Christmas Day at 12 noon, the other parent may have the children from Christmas Day at 12 noon until Boxing Day at 6 p.m.
- New Year: similar to Christmas Day, the New Year celebration may also be split into Eve and Day, since schools and most businesses are closed on New Year’s Day.
- Interfaith Holidays: Interfaith families may agree that the children will celebrate the religious holiday of one parent with that parent, and the religious holiday of the other parent with that other parent. This year, since Hannukah falls on December 26, it is possible for the children to celebrate Christmas Eve and Day with the parent celebrating Christmas, and celebrate the 8-days of Hannukah with the parent that celebrates Hannukah.
- Ultimately, parents should aim to equally divide the holidays with the children, unless it would be contrary to the best interests of the children to do so.
Other Holiday Considerations
A separation is one of the most difficult events that can happen in one’s life and brings with it many challenges. How will you pay for the children’s gifts if your spouse controls all the family income? What if you had planned to travel with the children outside of Canada before separation, can you still travel? Perhaps you have moved out of the matrimonial home, but your childhood holiday memorabilia or decorations remain to be collected.
To see how we can assist you with any of your issues related to your separation this holiday season, please contact Mills & Mills for a consultation with one of our family lawyers.
At Mills & Mills LLP, our lawyers regularly help clients with a wide range of legal matters including business law, real estate law, estate law, employment law, health law, and tax law. For over 140 years, we have earned a reputation amongst our peers and clients for quality of service and breadth of knowledge. Contact us online or at (416) 863-0125. The material provided through the Mills & Mills LLP website is for general information purposes only. It is not intended to provide legal advice or opinions of any kind.
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