Parenting Terms in an Ontario Separation Agreement

When parents separate, the parenting section is often the part of the agreement that matters most day to day. It sets out who decides what, where the children are and when, and what happens if one parent wants to move.

This article explains how these terms are usually organized in Ontario and how courts treat them. Every family is different, so treat it as a starting point for a conversation with a lawyer.

The two building blocks: decision-making and parenting time

Ontario guidance defines decision-making responsibility as the right to make significant decisions about a child's life and well-being, and parenting time as the time a child spends in a parent's care. A parenting plan can set out each parent's time and who makes major decisions.

• Decision-making: who decides about major matters such as education, health care and religion, and whether decisions are made jointly, separately or by area.
• Regular schedule: where the child lives during the school week, weekends and school breaks.
• Holidays and special days: how holidays, birthdays and vacations are shared, and how far ahead plans are shared.
• Communication: how parents share information and how the child stays in touch with the other parent.
• Disagreements: what steps parents take if they cannot agree, such as mediation.

Writing clear terms

Vague wording is a common source of conflict later. Ontario guidance says an informal parenting arrangement can be difficult to enforce, and that you can ask the court to enforce parenting arrangements made in a separation agreement. Clear, specific terms are easier for everyone to follow and for a court to apply.

Instead of saying a parent has the children on holidays, a clearer term says which holidays, in which years, and for what hours or days. Include handover times and places. Think about how the schedule changes as the children get older.

The agreement itself must meet the basic formalities. A domestic contract is unenforceable unless it is in writing, signed by the parties and witnessed. The Superior Court of Justice says Family Law Act sections 54 to 56 set out the basic requirements for a court to enforce a separation agreement.

Moving and relocation

Many agreements include a relocation clause. Under the Children's Law Reform Act, a person with decision-making responsibility or parenting time who intends a relocation must notify others with decision-making responsibility, parenting time or contact at least 60 days before the expected move date. The prescribed form is the Notice of Relocation Form, Person with a Parenting Order, under O. Reg. 155/21. For divorcing spouses, Divorce Act s. 16.9(1) sets the same 60-day rule.

Federal guidance under the Divorce Act says a parent who disagrees with a proposed move has 30 days after receiving the notice to object, using the Objection to Relocation form or by applying to court. Under the Divorce Act, the court may, on application, waive or modify the relocation notice requirements, including where there is a risk of family violence. Your agreement can add detail, such as how a move would change the schedule. How an agreement fits with the notice rules depends on your situation, so it is worth confirming with a lawyer.

How courts treat parenting terms

Parenting terms are not treated like ordinary contract terms. When deciding a matter about a child's education, moral training, decision-making responsibility or parenting time, a court may disregard a domestic contract provision if doing so is in the child's best interests.

In a divorce, the court considers only the best interests of the child in parenting matters. It must include a parenting plan the parties submit in its parenting order, unless including it is not in the child's best interests, in which case the court may modify the plan.

What to do next

Where appropriate, parties to a Divorce Act proceeding must try to resolve matters through a family dispute resolution process, and legal advisers must encourage it unless it would clearly not be appropriate. In family mediation, a neutral mediator helps you negotiate your own agreement but does not decide, take sides or give legal advice, and each party should get advice from a different lawyer before signing. Mediators screen for domestic violence at intake and throughout.

• Write down what you want for decision-making, the regular schedule, holidays and communication.
• Think about what happens if either parent wants to move.
• Consider mediation if talking directly is hard.
• Have your own lawyer review the draft before you sign.
• Make sure it is in writing, signed and witnessed.

Frequently asked questions