Parenting Time and Decision-Making in an Ontario Separation Agreement

Parenting terms are often the hardest part of a separation agreement to write. You are planning for children who will grow and change, and for two households that may also change.

This article covers what the main terms mean, how courts treat them, and how to deal with moves and travel. A clear, workable agreement is more likely to be followed and, if needed, enforced. It is general information, not advice on your situation.

The two core ideas

Ontario guidance defines decision-making responsibility as the right to make significant decisions about a child's life and well-being. Parenting time is 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.

Keep these separate in your agreement. One parent may have the child more often, while major decisions are shared or divided by topic. What matters is that the wording is specific enough that each of you knows what to do.

Why the child's interests come first

Parents can agree on almost anything, but terms about children are treated differently from money 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.

Under the Divorce Act, in parenting matters the court considers only the best interests of the child. 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.

In practice, an agreement that is built around the child's needs, and not around bargaining with other issues, is easier to defend.

Writing a schedule and decision-making terms that work

Informal arrangements can be difficult to enforce, while you can ask the court to enforce parenting arrangements made in a separation agreement. That is a good reason to write things down clearly.

• A regular weekly schedule, including exchanges and who handles transportation.
• Holidays, birthdays and school breaks.
• Which decisions are made together (for example schooling, health care or religion) and which a parent may make alone.
• How you will share information with each other and what happens if you disagree.
• A way to review the plan as the child grows, such as a set date or a trigger like a change of school.

If you cannot agree, a mediator may help. A neutral mediator helps the parties negotiate their own agreement, and does not make decisions, take sides or give legal advice. Where appropriate, the parties to a divorce proceeding must try to resolve matters through a family dispute resolution process.

Moving and travel terms

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. Ontario prescribes a form for this, the Notice of Relocation Form, for a person with a parenting order. For divorcing spouses, the Divorce Act sets the same 60-day rule.

For divorcing parents, 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. How a move is treated when your parenting arrangement is in a court order or an agreement, and how an objection works if you are not divorcing, depends on your situation, so it is worth confirming with a lawyer.

There is an exception for safety. 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.

For shorter trips, such as vacations, your agreement can say how much notice is needed, who holds the passports and what information must be shared. These are practical drafting choices rather than fixed rules, so a lawyer can help you word them.

What to do next

• Write down what your child's week and year actually look like now.
• Decide which major decisions you want to share and how you will resolve a disagreement.
• Think about moves, either parent's, and add a clear process.
• Get your own legal advice before signing, since the agreement cannot easily be changed later and it can be hard to set aside.

Frequently asked questions