Is a Parenting Plan Legally Binding in Ontario?

After a separation, many parents sit down and agree on how they will share time with their children and make decisions. It is natural to ask whether that agreement can actually be enforced if one parent later stops following it.

The answer depends on how the plan is written down, whether it ends up in a court order, and what is best for the child. This article explains the main paths, the limits, and some practical steps.

Which law applies to you

Which statute applies depends on your marital status. The Divorce Act applies to married spouses in a divorce. The Children's Law Reform Act (CLRA) applies to unmarried or common-law parents and to married parents who are not divorcing. The two have parallel but separately numbered sections.

The terms "decision-making responsibility" and "parenting time" replaced "custody" and "access". Older orders and agreements still use the old words, so if yours says custody and access, it is generally describing the same kinds of arrangements.

Making an agreement enforceable

Separated cohabitants may agree in a separation agreement on decision-making responsibility and parenting time for their children. A domestic contract, such as a separation agreement, is unenforceable unless it is in writing, signed by the parties and witnessed.

Another route is a court order. The court must include in its parenting 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. Justice Canada says a plan that is included in a Divorce Act order is legally binding.

The key limit: the child's best interests

A court may disregard any provision of a domestic contract on a child's education, moral training, decision-making responsibility or parenting time if that is in the child's best interests. An agreed plan never binds the court on these issues.

In practice, a court may disregard a provision on parenting time or decision-making responsibility if that is in the child's best interests, so an agreed plan never binds the court on these issues. In parenting cases, the court's primary consideration is the child's physical, emotional and psychological safety, security and well-being.

What a plan should cover and what can be made binding

Justice Canada suggests a parenting plan cover the following:

• Decision-making
• 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 guide notes that a schedule suited to a teenager is unlikely to suit an infant or toddler.

Some terms can be made binding through a parenting order. 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, and stopping a party from removing the child from Ontario without consent or a court order. Under the Divorce Act, an order can also set rules for communication with the child, such as calls or video, during another person's parenting time.

Naming a parenting coordinator

Justice Canada describes a parenting coordinator as a professional who helps parents follow their parenting plan, and notes that the parents pay for the service.

A separation agreement, court order or award can provide for arbitration of future disputes about its ongoing management or implementation. This is called secondary arbitration, and it is the usual basis for parenting coordination. A binding decision by a third party has legal effect only as a family arbitration award, and it is enforceable only if the arbitration agreement is in writing, each party got independent legal advice before making it, and the requirements of s. 38 of the Arbitration Act, 1991 are met. The agreement must also have been made after the dispute arose, unless it is a secondary arbitration under a separation agreement, court order or award, where that timing rule does not apply and independent legal advice is not required. A party entitled to enforce an award may then apply to the Superior Court of Justice or the Family Court. Because this is a consensual process, ask a lawyer how to word the clause in your own plan.

What to do next

Justice Canada advises each parent to show the draft parenting plan to their own legal adviser before signing.

• Write the plan down and cover the topics listed above.
• Check that any separation agreement is signed by both parties and witnessed.
• Ask a lawyer whether the plan should be made part of a court order.
• Think about whether you want conditions on moves, school changes or travel.
• Decide whether to name a parenting coordinator for future disputes.
• Keep a copy of every signed version.

Frequently asked questions