Parenting Agreements in Ontario: What to Include and How to Enforce

You and the other parent have separated and want to settle how the children will be cared for without a court fight. A written parenting agreement is a common way to do that, and many parents reach one through talking, mediation or their lawyers.

The details matter. How you sign it, what it covers and whether it is turned into a court order all affect what happens if the arrangement breaks down later. This article explains the main points in plain language.

What a parenting agreement can do in Ontario

Separated cohabitants may agree in a separation agreement on decision-making responsibility and parenting time for their children. Parenting time includes the right to visit with and be visited by the child, and the same right as a parent to make inquiries and receive information about the child's well-being.

Which law applies depends on your situation. The federal Divorce Act governs parenting between married spouses who are divorcing, 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.

What to include

A good plan is specific. Justice Canada suggests a parenting plan cover 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. It also notes that a schedule suited to a teenager is unlikely to suit an infant or toddler.

• Who makes significant decisions about health, education, culture, language, religion and spirituality, and significant extra-curricular activities, and whether they are shared or divided.
• The regular schedule, holidays and vacations.
• Who handles transportation and exchanges.
• How information about the child is shared.
• What happens if one parent wants to move.
• How you will try to resolve future disagreements.

Day-to-day decisions are normally made by the person who has the child during their parenting time, unless a court orders otherwise. Your agreement can say more about this if you want.

Signing it so it can be enforced

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 on its own.

Justice Canada advises each parent to show the draft plan to their own legal adviser before signing. That step helps you understand what you are giving up and whether the terms are realistic.

The limits: courts have the last word on children

A court may disregard any provision about 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. The court's primary consideration is the child's physical, emotional and psychological safety, security and well-being.

Many parents choose to have the plan put into a court order. The court must include in its parenting order a written parenting plan the parties have agreed on, although 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.

If someone stops following it

Ontario's guidance says you can be fined or jailed for not following a court order on decision-making responsibility, parenting time or contact. A contempt motion is one way to enforce an order other than a payment order. A person found in contempt may be imprisoned or fined. A court may also make other orders it considers necessary for a just result, such as costs.

For future disputes about how the agreement works in practice, a separation agreement, court order or award can provide for arbitration of those disputes. A party entitled to enforce a family arbitration award may apply to the Superior Court of Justice or the Family Court to enforce it.

What to do next

• Write down the schedule, holidays, travel and decision-making terms you want.
• Check whether you are married, divorcing or common-law, since that affects which law applies.
• Have your own legal adviser review the draft before you sign.
• Sign in writing with a witness.
• Ask a lawyer whether to turn the plan into a court order.

Frequently asked questions