How to Write a Parenting Agreement in Ontario That Holds Up

When you and the other parent separate, you do not have to start in court. Many parents sit down, work out how the children will be cared for, and put it in writing. A good written agreement gives everyone clear expectations and can reduce arguments later.

This article explains what a parenting agreement is in Ontario, what it should cover, and what makes it hold up. It is general information, not advice for your situation.

What a parenting agreement can do

Separated cohabitants may agree in a separation agreement on decision-making responsibility and parenting time for their children. These terms replaced the older words "custody" and "access", although older agreements and orders still use the old words.

Which statute applies depends on whether you were married. The federal Divorce Act governs parenting between married spouses in a divorce, while Ontario's Children's Law Reform Act applies to unmarried or common-law parents and to married parents who are not divorcing. The two have parallel but separately numbered sections.

When a court makes a parenting order, it must include in the order a written parenting plan the parties have agreed on, though it may change the plan if that is in the child's best interests. A plan that is included in a Divorce Act order is legally binding.

What to put in the agreement

Decision-making responsibility covers significant decisions about a child's well-being, including health, education, culture, language, religion and spirituality, and significant extra-curricular activities. Day-to-day decisions are different: the person with parenting time generally has exclusive authority over them during that time, unless a court orders otherwise.

Justice Canada suggests a plan cover the following:

• Decision-making, including who decides what.
• A parenting schedule, including holidays.
• Transportation, especially if parents live far apart.
• Vacations outside the province or country.
• Passport applications and consent letters for travel.

The same guidance notes that a schedule suited to a teenager is unlikely to suit an infant or toddler. Build in a way to review the schedule as your child grows.

You can also address information sharing. Unless a court orders otherwise, a person with decision-making responsibility or parenting time may ask for and receive information about the child's well-being.

Making the agreement enforceable

A domestic contract, such as a separation agreement, is unenforceable unless it is in writing, signed by the parties and witnessed. A handshake deal or a text exchange is not enough.

Justice Canada advises each parent to show the draft parenting plan to their own legal adviser before signing. Getting advice before you sign helps you understand what you are giving up and what you can later ask for.

There is an important limit. A court may disregard any provision on a child's education, moral training, decision-making responsibility or parenting time if that is in the child's best interests, so an agreed plan never binds the court on these issues. In deciding, the court's primary consideration is the child's physical, emotional and psychological safety, security and well-being. Write the agreement around what is good for the child, not around winning points.

Planning for moves, safety and future disputes

A person with decision-making responsibility or parenting time who plans to change residence must notify, in writing, others who have decision-making responsibility, parenting time or contact. A move that is likely to significantly affect the child's relationship with someone with parenting time, decision-making responsibility or contact is a relocation, and notice must be given at least 60 days before the expected move date, in the prescribed form. A court may, on application, waive or modify the relocation notice requirements, including where there is a risk of family violence. Your agreement can repeat these steps so both of you know them.

If safety is a concern, a parenting order can include conditions such as stopping a party from changing the child's residence, school or day care without consent or a court order, or from removing the child from Ontario without consent or a court order. Where there are safety concerns, supervised parenting time can be arranged, and the supervisor can be an agreed person, a paid professional, or staff at a Supervised Access Centre.

Parties must also protect the child from conflict arising from the case as far as they are able and, where appropriate, try to resolve matters through a family dispute resolution process. Many agreements say what the parents will do first when they disagree, such as talking, then mediation. Whether a more formal step like arbitration suits your family is a question to raise with a lawyer.

What to do next

• Write down what you each want for schedules, holidays, decisions and travel.
• Decide how you will handle disagreements and moves.
• Draft the plan in plain, specific language.
• Have your own legal adviser review it before you sign.
• Sign it in writing with a witness, and keep copies.
• Ask a lawyer whether to have the plan included in a court order.

Frequently asked questions