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Separation and Divorce: Child Custody, Access, and Parenting Plans

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How are parenting plans decided?

Parents can try to agree on custody, access, and parenting plans on their own or with the help of someone they both trust, a lawyer, or a mediator.

When parents agree, they can make a written parenting plan called a parenting agreement, a separation agreement, or a paternity agreement.

A parent does not need a lawyer to make a parenting plan. But it is a good idea for each parent to get their own legal advice before signing one. Parents cannot get advice from the same lawyer. For more information about getting legal help, see Finding a lawyer.

Both parents and a witness have to sign the parenting plan. Once signed, both parents have to follow it unless they agree to change it, or a judge decides that there is a good reason to change it.

Parents who cannot agree on a parenting plan can get help from a family law professional, such as a mediator or an arbitrator. Or they may decide to go to court and ask a judge to decide.

Mediation

If parents cannot make an agreement on their own, they may want to use a mediator.

A mediator is a person trained to help parents discuss their issues, understand each other’s position, and try to reach an agreement.

Mediators do not:

  • give legal advice
  • make decisions
  • take sides

Family mediators are usually professionals such as social workers, lawyers, or psychologists.

A parent does not need a lawyer to go to mediation. But it is a good idea for them to have their own lawyer review any agreement they make and to get legal advice before signing it.

Sometimes mediation may not be a good idea. For example, if there has been violence or abuse, or if there are serious mental health or drug abuse issues.

The Ministry of the Attorney General offers free and sliding-scale mediation services in family courthouses. Sliding-scale means the amount a parent pays depends on their income and number of children they have to support.

To find out more about these services, search for "Family Mediation Services" on the Ministry's website at www.attorneygeneral.jus.gov.on.ca.

Parents can also hire a private mediator.

Arbitration

An arbitrator, like a mediator, is a person trained to help parents discuss their issues and try to reach an agreement. But unlike mediation, if parents cannot agree, the arbitrator makes a decision.

Arbitrators are usually retired judges, mental health professionals, or lawyers experienced in family law. Usually, both parents must pay for the arbitrator.

In Ontario, arbitrators can make legally binding decisions. This means that both parents must follow the arbitrator's decision as if it is a court order.

But this is true only if the arbitrator follows certain rules. The 2 most important rules are:

  • Usually each parent must get their own legal advice before agreeing to arbitration.
  • The arbitrator makes a decision based only on Canadian family law and the best interests of the child. This means the arbitrator cannot base their decision on any religious, cultural, or other rules. The arbitrator must apply the same laws that a judge would apply in a Canadian court.
People sometimes choose to discuss their family law issues with a religious or community leader or another person they trust. But this person does not have any legal power to make decisions unless they followed all the rules to make a legal family law arbitration and both parents agreed to give them this power.

A parent does not need a lawyer to go to arbitration. But it is a good idea for them to have their own lawyer review any agreement they make and to get legal advice before signing it.

For information about arbitration, search for "Family Arbitration" on the Ministry of the Attorney General's website at www.attorneygeneral.jus.gov.on.ca.

Court

Going to court can be a complicated process and take a lot of time. It can be stressful and expensive, but it is sometimes necessary to decide the issues.

Judges decide custody and access using a legal test called the best interests of the child.

Judges usually assume it is better for a child to have a relationship with both parents. Some of the things judges look at are:

  • the relationship between each parent and the child
  • the emotional ties between each parent and the child
  • how long the child has lived in a stable environment
  • each parent's plan for the child's care and upbringing
  • each parent's ability to care for the child
  • in some cases, the child's views and wishes
  • if there has been abuse against any family member or any child

Judges do not consider the past behaviour of a parent unless it makes them less able to act as a good parent. For example, a judge will not take into account which parent was to blame for the family break-up. But the judge must take into account if a parent was ever violent or abusive towards:

  • their partner,
  • anyone in their household,
  • a parent of the child, or
  • their own or any other child.

Assessments

Sometimes a judge wants an independent professional's opinion about what is in the best interests of the child before making a decision about custody or access. This is called an assessment. An assessment is a report prepared by an expert such as a psychologist, social worker, or mental health professional.

A judge may:

  • order the parents to have a private assessment and to pay for it, or
  • ask the Office of the Children's Lawyer (OCL) to prepare a report. If the OCL accepts the case, there is no fee.

If a parent needs the court to decide a specific issue before trial, they can ask the judge to make a temporary order.

Even after the court process has started, parents can stop the process by making an agreement. Many steps in the court process encourage parents to agree.

The flowcharts in CLEO's Steps in a Family Law Case can help parents understand and follow the court process. Visit www.familycourt.cleo.on.ca.