COURT FILE NO.: FC-09-1184-00

DATE: 2012-08-10

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MYKE CURPHEY, Applicant

AND:

JODY ALDEBERT, Respondent

BEFORE: THE HON. MR. JUSTICE J.R. McCARTHY

COUNSEL: R. Shank, for the Applicant

M. Sirdevan, for the Respondent

HEARD: July 19, 2012

ENDORSEMENT

[1] The Applicant Father (AF) seeks an order for Christmas access with the child, Victoria Curphey, “Victoria” (dob December 30th, 2007), in alternate years, from Christmas Eve (December 24th) at 4pm until Christmas Day (December 25th) at 2pm.

[2] The Respondent Mother (RM), who currently has sole custody of Victoria, proposes that the RF’s Christmas access with Victoria should be every year from December 25th at 2pm until January 2nd at 2pm.

[3] The AF argues that it is in the best interest of the child (BIC) that she enjoys maximum contact with each parent at Christmas. Christmas Eve, in a young person’s world, features the anticipated arrival of Santa Claus and his reindeer, followed by the awakening on Christmas morning to discover presents under the Christmas tree. It is undoubtedly an important experience of childhood, to the extent that the BIC principal would argue in favour of allowing Victoria to live out that experience with both of her families. Those two families are the AF, his new partner and Victoria’s paternal half sibling on the one hand, and the RM, her new partner and Victoria’s two maternal half siblings, on the other hand. In addition, the AF argues that his proposal is inherently balanced and fair.

[4] The RM points to the requirement for consistency in a young child’s life, and the importance of shared memories with siblings. She argues that a consistent and reliable Christmas experience, with traditional and recognizable activities of family gift exchanges, attendance at Christmas mass services and waking up on Christmas morning are in the BIC.

Analysis

[5] It seems to me presumptively fair that the respective parties should each have the opportunity, in their turn, to share that very special period of time from the onset of Christmas Eve into Christmas Day morning with Victoria. However, the paramount consideration in matters such as these is the BIC.

[6] In the absence of a report from a child psychologist, the Children’s Lawyer or some other entity which might provide some guidance on what kind of an access order might further the BIC, the court is left to determine the issue based on the affidavits of the parties. This becomes an exercise in extracting from those sworn statements what can be fairly said to address the BIC rather than the understandable wishes of each of the parents to have their daughter with them at Christmas.

[7] In the case of Elkin-Hall v. Hall, [1996] N.W.T.J. No. 86, Richard J., faced with a similar set of circumstances, stated as follows:

The mother....objects to any disruption of, or variation from, the traditional Christmas activities and related schedule that the children have experienced and enjoyed in previous years. This position, of course, ignores the reality of the children’s present situation. In those previous years the children were part of a complete family unit. That is no longer the case. Their parents are separated and are not living together. The law, and society, requires that the children have as much contact with each parent as is consistent with the children’s best interests. It has not been shown that it is in the best interests of these children to continue with previous ‘family’ traditions with one parent (to the exclusion of the other), as opposed to developing new traditions for the children in recognition of the new reality. Past family traditions, while important, are not binding.

[8] I agree. While it is a difficult exercise to ascertain the BIC as it relates to a Christmas access schedule in situations where there are many variables, the overriding principle of maximum contact with each parent demands that both the AF and the RM be given an equal opportunity to share the Christmas Eve/Christmas morning period with their daughter. There being only one Christmas Eve in the calendar year, a court is left with little choice but to alternate that access.

[9] However, I am not prepared to impose a schedule or a pattern beyond a limited period of time. The best interests of Victoria should be reviewed in accordance with the circumstances as they evolve in her respective families over the short to medium term. For example, there may be a change in the Christmas schedule of one of her siblings. There may be shifting family plans in any given year. There may be an opportunity to spend a Christmas at a resort.

Ruling

[10] For the above reasons, the Court orders as follows:

(a) For Christmas 2012, there shall be access for Victoria to the AF commencing at 5pm on December 21, 2012 to 12pm (noon) on December 25, 2012 (Christmas Day), and from 5pm on January 2, 2013 to 5pm on January 6, 2013. To the RM, there shall be access commencing at 12pm (noon) on December 25,2012 to 5pm on January 2, 2013;

(b) For Christmas 2013, there shall be access to the AF commencing at 12pm (noon) on December 25, 2013 (Christmas Day) to 5pm on January 2, 2014 and to the Respondent Mother, commencing after school on December 20, 2013 to 12pm (noon) December 25, 2013 (Christmas Day) and from 5pm January 2, 2014.

(c) Access exchange shall continue to take place at the Simcoe/Muskoka Supervised Access Centre location in Barrie. In the event that the Supervised Access Centre is closed, exchange is to take place at the Barrie Police Station located at 29 Sperling Drive, Barrie, Ontario L4M 6K9.

[11] The above scheduled was arrived at with a view to maximizing Victoria’s time with each of her parents and their respective families. While an equal division of time over the two holiday periods in question is the aim of the order, such a thing cannot be accomplished with mathematical precision.

[12] It is hoped that arrangements for future Christmas access beyond January 3, 2014 can be worked out by the parties. In the event that such a schedule is not put in place by the parties by end of the calendar year of 2013 for the year or years beyond that calendar year, this Court requests that the Office of the Children’s Lawyer cause an investigation to be conducted and a report prepared in respect of Christmas access for Victoria in 2014 and beyond. This request is made under section 112 of the Courts of Justice Act. A copy of this order may be forwarded to the OCL by either of the parties, if necessary, at any time after January 3, 2014.

Costs

[13] If the parties are unable to agree on the issue of costs, then they are to provide me with written submissions on costs limited to two pages each.

McCARTHY J.

Date: August 10, 2012