Making plans: A guide to parenting arrangements after separation or divorce
Section 5: Options for developing a parenting arrangement
The previous section (Section 4: What is the best parenting arrangement for my child?) gave you some information about different types of parenting arrangements. This section tells you about the different ways that you and the other parent can come to a parenting arrangement.
Parenting Plans: Putting your parenting arrangements in writing
You and the other parent can develop a parenting plan that will put your parenting arrangements in writing.
A parenting plan describes how parents not living together will care for and make important decisions about their children in both homes. You can agree to any type of parenting arrangement, but you should focus on what is in the best interests of your children.
You should consider the age of your children and how the plan may change as your children grow. Your plan should have enough detail to provide clear expectations about the plan, yet have enough flexibility to be realistic. Consider how well you are able to work with the other parent when thinking about how specific your parenting plan should be. If you think there are issues that you and the other parent may disagree on in the future, it's a good idea to address them in your plan. That way, you'll both know how to handle those situations as they come up. This can help you avoid conflict.
There is no particular format for a parenting plan. The Department of Justice Canada website has free resources to help parents come up with workable parenting arrangements that are in your children's best interests:
- The Parenting Plan Checklist is a tool to help you start the discussion on making plans about parenting, and gives a list of issues that you should consider when developing your parenting arrangement.
- The Parenting Plan Tool is an interactive tool that gives you some options to develop a personalized parenting plan.
Before you get started
It is important to know a few things before creating a parenting plan such as:
- It is important to have your parenting plan in writing to keep a record of the decisions you have made together about the future. Having it in writing can help you avoid conflict in the future.
- When writing your parenting plan, you do not have to use legal terminology. Legal terms like “parenting time” or “decision-making responsibility” do not have to be included in your plan, but the language you choose should clearly outline the arrangements that you and the other parent have agreed upon.
- Before you sign a parenting plan, you should consult with a family law lawyer or legal adviser to ensure that you understand your legal rights and responsibilities. In some provinces and territories, having both parents sign the plan will make it into a legally binding agreement. In other provinces, a witness or other procedures may be required.
- If you have your parenting plan included in your order under the Divorce Act, it will be legally binding. If a parenting plan is submitted to the court, the court must include the plan in the parenting order or the contact order, as the case may be. If you're not making parenting arrangements under the Divorce Act, you may decide to have your parenting plan included in an order under provincial or territorial law.
You can find more information about making agreements and obtaining orders under provincial and territorial legislation on the provincial and territorial family law websites.
For more information on family justice services in your province or territory, please consult the Department’s website.
Options for coming up with a parenting arrangement
When you're deciding which parenting arrangement is best for your children, and deciding on other issues like child support, there are many ways to come to an agreement without going to court.
You can reach an agreement with the other parent through a family dispute resolution process such as negotiation, mediation, collaborative law, or arbitration (available in some provinces). The sections below provide information on these processes, as well as a list of things to consider before deciding on the best process for your situation.
The Divorce Act requires that you try to resolve your disputes through family dispute resolution before going to court, to the extent that it is appropriate to do so.
The approach that works best for you will depend on your situation. To help you decide which option is best, think about:
- the amount of conflict between you and the other parent
- how involved your children are in any conflict between you and the other parent
- how quickly you want to resolve issues and how much money you are ready to spend to resolve them
- how willing you and your former partner are to cooperate in coming to an agreement
- the amount of control you want over the agreement
- if there has been family violence in the relationship or ongoing safety concerns
Before you decide which option is best for you, it's a good idea to get information and guidance from the family justice services available in your province or territory.
Family law issues can be complex. When you are developing parenting arrangements, it's always a good idea to speak with a legal adviser to make sure you understand:
- your legal rights and responsibilities
- options for resolving differences between you and the other parent
- how the court system works
- how different family dispute resolution processes work
Seeking the help of a legal adviser is particularly important in cases where there:
- has been family violence or there is an ongoing safety concern
- is a significant power imbalance between the two parents
- is a history or ongoing problem of substance abuse
- is a history or ongoing issues relating to mental illness
- is a lot of conflict between the two parents
However you decide to make your parenting arrangements, it's important to focus on your children's best interests.
Options for reaching an agreement
There are many advantages to reaching an agreement instead of having someone else, like a judge, make decisions for you. The main advantage is that you know your children best. In addition:
- it's a cooperative approach and children benefit from less conflict in their family
- children benefit from seeing parents work together
- it focuses on optimal outcomes for all parties
- you stay in control—no one else makes the decision for you
- it may be less expensive and take less time
- you're more likely to stick to the agreement if you've made it
- it sets a good precedent for how you'll resolve parenting issues that come up in the future
- it allows you to tailor your arrangement to the needs of your children and your situation
- it keeps the lines of communication between you and the other parent open
Negotiation is a process in which parents discuss issues to try to come up with a compromise or agreement about parenting issues. Parents may negotiate themselves, or they may negotiate with the help of their legal advisers.
Personal negotiations (negotiations between parents)
Personal negotiations involve discussions between you and the other parent to try to come up with a compromise or agreement about parenting issues. This process gives complete control to you and the other parent on the decisions that are made, as there is no third party involved.
Some things to consider:
- you can use personal negotiation to settle issues at any time, even if you've started a court case
- negotiation may be faster than other options, since only you and the other parent are involved
- in situations where there are issues of power and control or abuse, it may not be possible for you and the other parent to negotiate on an equal basis
- in situations where there has been family violence and there are ongoing safety concerns, it may not be advisable for you and the other parent to be alone together or negotiate on your own
- personal negotiations may also be difficult where there are serious mental health issues or problematic substance use
You are not required to have a written parenting plan or court order after you separate or divorce. But, if you and the other parent are able to agree on the parenting arrangements, it's a good idea to put it in writing because people can sometimes remember things differently. This will help if problems come up in the future.
If you and the other parent are able to agree on parenting arrangements and make a parenting plan, it's important for each of you to show the draft parenting plan to your own legal adviser before you sign it. This way, you can make sure you fully understand your legal rights and responsibilities. A legal adviser can also make sure haven’t forgotten to include something important.
A legal adviser can also give you advice about having your parenting plan made into an agreement or reflected in a court order. Schools, doctors, and government departments may request a formal, written agreement or court order, and typically request documents that are clear and easy to understand.
Negotiation with the help of a legal adviser
Another option is for you and the other parent to each hire a legal adviser who will negotiate for you and help you reach an agreement on other issues.
Some things to consider:
- You and the other parent don't need to meet face-to-face—legal advisers can talk for you.
- Your legal adviser is your advocate. If there has been family violence or if there are issues of power imbalance or control, they can help to reduce differences in the power between you and the other parent.
- You and the other parent can rely on your legal advisers to explain your legal rights and responsibilities before you sign an agreement.
- Legal advisers can help make sure that your agreement is easy to understand and can be enforced. You can negotiate at any time, even if you've started a court proceeding.
- It may cost more money and take more time than if you and the other parent worked out an agreement by yourselves.
- Each parent is usually responsible for their own legal fees while negotiating.
Choosing a legal adviser
Legal advisers generally try to take the emotions out of negotiations. They stick to the facts and the law, and they focus on finding solutions that work for their clients. But different legal advisers take different approaches to negotiation, mediation, arbitration and litigation. It's important for you to speak to a potential legal adviser about their approach before you hire them, to make sure they're a good fit for you.
Collaborative law is a process in which both parents, their legal advisers, and potentially other professionals agree to work cooperatively to come to an agreement. During the collaborative process, both parents agree not to bring any court applications. Parents have an incentive to come to an agreement because if the collaborative process does not result in an agreement, the parents' legal advisers cannot represent them in court, and both parents would have to hire new legal advisers.
Some things to consider:
- You and the other parent can work together to come up with an agreement that focuses on your children's needs, with the help of a legal adviser.
- You can ask other professionals, like financial specialists and mental health professionals (for example, social workers, psychologists, parenting coordinators) to help you with specific issues when they come up. There may be additional costs associated with hiring professionals.
- In collaborative law, the legal advisers who are representing you and the other parent can’t represent either of you in court. If the collaborative process isn't successful, you will both have to hire a new legal adviser to represent you in court. As such, there's an incentive for both of you and your legal advisers to help you reach an agreement.
- Everyone signs a contract agreeing to work collaboratively to come to an agreement, so it can take less time and cost less. Involving multiple professionals can make collaborative law cost more than other options.
- Collaborative law isn’t guaranteed to result in an agreement.
- Collaborative law isn’t available in all areas across the country.
- Because you and the other parent must negotiate directly with one another, this process may not be right for you if there has been family violence. You should talk about this with your legal adviser.
- In collaborative law, each parent must fully disclose all financial information to the other parent. If there is a strong chance that this won’t happen, you should ask your legal adviser if this is the right choice for you.
- You and the other parent can rely on your legal advisers to explain your legal rights and responsibilities before you sign an agreement.
If you are interested in collaborative law, you should ask potential legal advisers whether they offer this type of practice.
Mediation is a process in which a neutral third party helps parents come to an agreement about issues related to their separation and divorce, such as their parenting arrangement.
In mediation, you and the other parent tell each other directly what you want and need for yourselves. You may also say and share what you believe is in your children's best interests. You and the other parent are responsible for making the decisions about your parenting arrangements. The mediator doesn't have the power to make an order or to force you to agree.
If you decide to mediate, it's a good idea for each of you to speak to a legal adviser before you start. If you come to an agreement, it's also important to show a draft of the agreement to your own legal adviser before making it final. This way, you can make sure you understand your legal rights and responsibilities before you sign.
Some things to consider:
- Mediation usually costs less money, and can be much quicker than going to court.
- Mediation can be confidential. It is important to discuss whether the mediation will be confidential with your mediator.
- You can use mediation to settle issues at any time, even if you've started a court case.
- Mediation helps encourage better communication between parents about child-related issues (what you say, how you say it, how you listen) and can help you focus on your children's needs.
- Mediation usually requires face-to-face communication and meetings, which may be difficult and inappropriate for some parents. Discussing the option with a legal adviser can help you determine if this option is right for you.
- Mediation can involve other people besides the parents. For example, it can involve a new partner or extended family members, if appropriate. This can sometimes help get to the root of problems.
- Mediators don’t give legal advice.
- Mediation isn’t guaranteed to result in an agreement.
Mediation isn’t for everyone. For example, if there has been family violence and there are ongoing safety concerns, it may not be possible for you and the other parent to mediate safely and effectively. Before you start the mediation process, a skilled mediator will ask you and the other parent a series of questions to determine if it's right for you.
In some cases, shuttle mediation may be appropriate. In shuttle mediation, you and the other parent don't need to be in the same room. The mediator speaks to one parent and then to the other parent separately. You and the other parent negotiate with the help of the mediator, without being face to face.
It may also be possible to mediate from different locations using technology like a telephone or videoconference. For example, you might do this if you and the other parent live in different cities or if you or the other parent travels a lot for work, for instance.
Choosing a mediator
In most parts of Canada mediators aren’t regulated, but there are organizations across the country that train mediators and have standards of practice for them. When you choose a mediator, it's important to ask them about:
- their background, including their training, qualifications and experience
- whether they belong to any provincial or national mediation or dispute resolution organizations
- their background and knowledge with respect to children and family law
- the nature of their practice
Max and John
Things weren't going well. Max and John had been separated for six months, and they hadn't been able to agree on any type of parenting or child support arrangements for their children, Lily and Peter.
Every time they tried to talk, they just ended up yelling at each other. Max accused John of not caring enough about the kids. John accused Max of turning the kids against him. It looked like they were headed to court.
Then one of Max's friends recommended they try mediation. He told Max that he and his former partner had been to a mediator, and she had helped them agree on many of their issues.
Max suggested mediation to John, but he immediately rejected it. His first thought was that, if Max was suggesting it, he must have thought he'd get a good deal out of it.
But John was curious, so he looked it up online and learned that mediation had worked in many family law cases. It helped the parents learn to negotiate and communicate effectively with one another. He read that this was important because parents need to continue to work together as co-parents for many years. In the end, John agreed to try it.
Max and John had three mediation sessions. While they didn’t agree on everything, they learned to listen to one another better, and to communicate without getting too emotional or too angry. The mediator also helped them to focus on coming up with an agreement that was in Lily’s and Peter’s best interests.
Processes in which a third party makes the decisions
In some provinces and territories, parents can resolve parenting issues through arbitration.
Arbitration is a process in which a neutral person—an arbitrator—makes decisions on legal issues related to parenting. Under this process, both parents agree that they will allow the arbitrator to make decisions. The arbitrator acts like a judge. Arbitration is a private process, and parents are responsible for paying the arbitrator as well as their own legal advisers.
Some things to consider:
- Arbitration may be faster than going to court and you won’t need to file court documents.
- You and the other parent can choose the arbitrator, so you can make sure they have the expertise or background to deal with your particular issues.
- Arbitration is confidential.
- You and the other parent have less control over the process than in negotiation, mediation or collaborative law. The arbitrator makes the final decisions.
- In arbitration, each parent has to build their case against the other parent to try to get the outcome they want. This may have a negative long-term effect on your ability to deal with the other parent on issues related to the children.
- Because parents have to pay for their own legal advisers as well as the arbitrator's fees, this can be an expensive process.
- Arbitration will result in a decision that resolves all of your legal issues, but, just like going to court, it may not be the result you expected.
It's important that you speak to a legal adviser to decide if arbitration would be appropriate for your situation.
Going to court
Going to court usually means that you're asking a judge to decide for you. The judge will hold a hearing or a trial and then make a court order. You must do what the court order says. There are many steps in the court process. Even if you do go to court, the court will encourage you and the other parent to come to an agreement by following a family dispute resolution process, such as mediation. Also, many courts offer the opportunity to participate in a settlement conference, where a judge works with the parties to help them reach an agreement.
If none of the other family dispute resolutions processes is appropriate for you, going to court may be the only option.
But if the judge has to make a decision, you shouldn’t expect a court order right away. It can take a long time.
When judges decide on parenting arrangements, they base their decisions on the best interests of each child, based on the evidence at the hearing or trial.
Some things to consider when there is a trial:
- the judge may not agree with your point of view, and may make a decision that you don’t agree with
- even if you go to court, prior to a judge making a final decision, you can still try to resolve the issues through negotiation or mediation
- going to court can take a lot of time and be very expensive, especially if you use a legal adviser or need an expert witness
- in court, each parent has to build their case to try to get the outcome they want. This may have a negative long-term effect on your ability to deal with the other parent on issues related to the children.
- you and the other parent have little control, because the judge makes the decisions and you will have to live with those decisions
Including your children's perspective
No matter how you decide to reach your agreement, it's important to get your children's input on their needs. This will help you focus on what's best for your children. It can also help your children:
- understand what's happening
- feel included
- see that you are thinking about them when making decisions
Under the Divorce Act you have a duty to exercise your parenting time and decision-making responsibility in the best interests of the child. It is very helpful to hear from your children about their views and preferences when deciding what is best for them. How you go about seeking your children's views, and how much weight you give them, will depend on your children's age and level of maturity.
Listening to your children’s views doesn’t mean that you ask them who they want to live with.
You can ask professionals like counsellors, mediators or social workers for guidance and advice before you speak with your children about their feelings or needs.
Some children want to give input into decisions that will affect their lives, but it isn’t appropriate for children to make decisions about parenting arrangements or to take sides. Older children generally understand the difference between giving input and making a decision, but it's important to clearly explain the difference to all children before asking them to voice their opinion. They need to understand that while they can share their input, it is up to their parents or a judge to make the final decision.
It's also important for children to know how you will use their input. Otherwise, they can feel angry, betrayed, and powerless if you make a decision that isn’t what they asked for. To address this concern, you might say something like:
“We (your parents) are working on the parenting time schedule together. Is there anything that is really important to you that we should take into account? We will do our best, but if it isn’t possible for us to do what you are asking for, we will let you know.”
In some situations, even when given the opportunity, children may not want to share their opinion. That's O.K. too.
Listening to your children's views doesn't mean that you are asking them to take sides. This can make children feel like they have to choose between you and the other parent. Asking for your children’s opinions means that you are asking them about things that are important to them and could affect their schedule and well-being. For example, you could ask them if there are any activities that are important to them and which they want to continue, or if there are any special activities they like to do with each parent or other important people in their lives (other family members, friends, etc.).
It's really important that children don't feel pressured or coached to express a particular point of view. It's a good idea to let them know that they can be honest with you about their feelings and needs. You should emphasize that they don't need to think they're "taking sides" or choosing one parent over the other.
There may be times that they say things that you don't expect or agree with. The key is to listen to what they have to say and to consider it.
You should also know that sometimes your children may not want to tell you what they really think if they believe it will upset you.
Sometimes, children may tell you what they think you want to hear.
Sometimes, if they're worried about upsetting you, your children may find it easier to speak with a neutral third party. Whether they speak to you directly or with the help of someone else, your children's views can help in your discussions with the other parent.
If you are negotiating an agreement with the other parent, one—or ideally both—of you can speak with your children about:
- how things are changing
- what is important to them
- whether they have any thoughts about the arrangement you're making for them
This is more effective than asking them, for example, to choose which parent they want to live with.
No matter what family dispute resolution process you use, it is important to include your child’s views.
For example, you can obtain your children’s views through a Views (or Voice) of the Child Report or a parenting assessment.
You may also include your children's views in a mediation or collaborative law process. It's a good idea to speak with your mediator or the collaborative law team to decide if it would be possible or appropriate in your situation. For example, it may be possible for your children to share their views with the mediator, who will then share them with you and the other parent as part of the discussions. You could also provide a copy of a Views of the Child Report to the mediator.
If you ask a judge or an arbitrator to decide on the best arrangement for your children, there are other ways that they can take your children's views into account. These include:
- having a legal adviser for your children
- having the judge interview them
A Views (or Voice) of the Child Report is a report that summarizes the opinions and preferences of a child about certain parenting issues, such as parenting time and living arrangements. A professional such as a social worker or legal adviser interviews your children and prepares a report on their views.
A parenting assessment is a report by a social worker, psychologist, or psychiatrist who gathers information about your family. The assessment is a professional evaluation about the best interests of your children. The assessor may speak with your children to find out their views and may see how your children interact with each of you, depending on the type of assessment. With an assessment, the assessor will also speak to others (parents, teachers, other people who know the child) to prepare the report.
Choosing the best process for your situation
Ask yourself the following questions:
- How much conflict is there between you and the other parent? Will you be able to cooperate to resolve the issues? Will you be able to cooperate in the future?
- How quickly do you want to resolve the issues?
- How much money do you have to spend on the process? How much are you willing to spend?
- Do you want to control the process yourself, or are you willing to give up control to others (for example, a judge if you go to trial)?
- Has there been family violence or abuse? Are there issues of control or a power imbalance?
- How will your children's views be included in the process?
Making changes to an existing agreement or court order
Sometimes, after you have come to an agreement or gotten a court order, the situation changes, and the arrangement doesn't work for your children anymore.
There are multiple changes, major and minor, that can affect your capacity to respect and carry out the terms outlined in your agreement or court order.
For example, perhaps when you made your original arrangement:
- Your children were one and three years old. Now they're seven and nine and involved in competitive hockey. The parenting time schedule in your agreement just isn't practical.
- You and the other parent lived in different cities. You're now both in the same city, which allows the children to spend a lot of time with each parent.
- You and the other parent weren't able to communicate well about the children, and so each of you was made solely responsible for making decisions on different issues (for example, one had responsibility for health and education, the other religion). Your communication is now much better, and you would now like to make all important decisions together.
- You were both able to care for the children well. Now, the other parent has an addiction and there are safety concerns when the children are in their care.
If you have an agreement, you and the other parent can decide to make changes to that agreement. If you are having trouble agreeing to the changes, you may wish to try one of the family dispute resolution methods discussed earlier in this section.
If you and your ex-partner are unable to come to an agreement through a family dispute resolution process, you will need to go to court to ask for a judge to make the decision.
Under the Divorce Act parents have a duty to comply with their court orders. Until a judge changes your order, you and the other parent must continue to follow the existing order. Not following a court order could lead to serious legal consequences.
If you have a court order that's no longer working for you and the other parent, it's a good idea to try to reach an agreement with the other parent about the changes that should be made. You can have the changes that you agree on set out in a new court order, which would make them legally binding. This can avoid problems and confusion in possible future disputes. Because you would both consent to the court order, it’s a simpler process than if you didn’t agree.
It's important to remember that if you go to court, a judge will decide which arrangement they believe is in the best interests of the child. You will have a legal obligation to follow what the new order says.
It is recommended that you speak to a family law legal adviser if any changes need to be made to your parenting arrangement or court order.
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