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How do I change custody, access, and parenting arrangements in my agreement?

You or your partner may want or need to change your parenting plan or separation agreement because of changes to your situation. For example:

It can be difficult to get along with your partner. Small issues can build up and make you want to change your separation agreement. Think carefully about what issues you want to take to court.

For example, it's best not to go to court for things like who has to wash your child's clothes after access visits or because your partner isn't always on time. Try to find another way to resolve these issues that can save you time and money.

You should first see what your separation agreement says you have to do if one of you wants to change it. For example, it might say that you have to try mediation before going to court. Even if your agreement doesn't say this, you might want to try an alternative dispute resolution process before going to court.

Agreements about custody, access, and parenting can't be changed by a court. But, if you and your partner can't agree on how to change it, you can start a family law court case to have a judge make decisions about custody, access, and parenting arrangements.

The judge looks at your agreement and the best interests of the child test to make decisions about your child.

You have to follow your agreement, until it is changed.

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Next Steps: 

1. Talk to your partner

You and your partner can agree to make a new agreement to deal with the changes in your situation. You can talk to your partner on your own, with the help of someone you both trust, or with the help of a lawyer or mediator.

A parenting plan checklist can help you with the things you may have to think about. Not everything on the checklist may apply to your situation.

Your agreement has to follow certain rules to make it binding and enforceable under the law. This means your agreement is made in a way that allows the court to order you or your partner to do what the agreement says, if either of you stop following it.

For example, the rules say before you sign your agreement, you must understand it, the process is fair, and that you and your partner give complete and honest information about your finances.

You don't need a lawyer to make a separation agreement. But it’s a very good idea to get legal advice before signing one. It's important for each of you to get your own legal advice from different lawyers. This is sometimes called independent legal advice. The advice is independent because each lawyer is only working for one of you.

You can talk to a lawyer who can help you understand:

  • The claims you can make after you separate or divorce.
  • Your rights and responsibilities toward your children and your partner.
  • The rules your agreement has to follow to make it binding and enforceable under the law.
  • How your rights change once you sign the agreement.

If you decide not to get legal advice, you may not be able to argue later that you didn't understand your legal rights when you signed the agreement.

Talking to your partner may not be an option where there is a history of partner abuse.

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2. Get help from a family law professional

If you and your partner cannot agree on changing your custody and access arrangement, you can try getting help from a family law professional. These are neutral people who are trained to work with both of you to help you reach an agreement or make a decision for you.

Family law professionals can work in:

  • mediation
  • arbitration
  • mediation-arbitration
  • collaborative family law

All of these processes are sometimes called alternative dispute resolution (ADR). They help solve your issues without going to court. Deciding which process is best for you depends on the facts of your situation and what you want. For example, a mediator doesn't make decisions for you, but an arbitrator does.

Some of the reasons to use ADR instead of going to court are:

  • You have more control over what happens to your case.
  • It can be faster and cheaper.
  • It can be less stressful.
  • It takes place in a private setting.

But, there are some situations where it may be better not to use ADR, such as:

  • There is a history of family violence, mental illness, or drug abuse.
  • You can't talk to your partner.
  • You can't work cooperatively with your partner.

Each family court location in Ontario offers subsidized mediation services. You can get up to 8 hours of mediation for a fee that is based on each person's income. You can use this service whether or not you're in court. If you're already in court, you can get up to 2 hours of mediation at the court free of charge.

In some areas, Legal Aid Ontario has a mediation service that is free if you or your partner's income is low enough. These mediators help with issues of custody, access, parenting plans, travel and vacation plans, parent communication, and child support.

You can also find mediators who offer their services at lower rates through JusticeNet. JusticeNet is a not-for-profit that helps people in Ontario whose income is too high to get legal aid and too low to afford standard legal fees.

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3. Get help from a parenting coordinator

Another alternative dispute resolution process is parenting coordination.

A parenting coordinator is a neutral third party who helps parents resolve day-to-day conflicts about their parenting arrangements or parenting orders. They have special training on:

  • how to deal with high conflict parents
  • how to understand the needs of children
  • how to help each partner communicate on parenting issues

Parenting coordinators usually get involved when there is a parenting plan, or separation agreement, or court order that is not being followed. They can help you and your partner follow your agreement or court order instead of going back to court.

Parenting coordinators can meet with you and your partner, your children, and anyone else they think can help the family. They can help you and your partner:

  • develop problem-solving and communication skills
  • follow  parenting plans in your agreement or court order
  • resolve conflicts that come up about the parenting plan

For example, if your agreement or court order says that you will divide your time with the children equally over the summer, a parenting coordinator can help you figure out a summer schedule.

If you and your partner reach an agreement, the parenting coordinator will often write up a document saying what was agreed on. This is sometimes an informal email or can be a more formal document called "minutes of settlement" or a "memorandum of understanding".

Before you start, you and your partner can decide whether you want the parenting coordinator to have the ability to make a final decision if you both can’t agree. Their decision is based on information they get from you and your partner, professionals such as doctors, teachers, counsellors, etc., and, if needed, your child.

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4. Go to court

If you and your partner cannot agree on changing your custody and access arrangement, even with the help of a family law professional, or if that is not the right option for you, you can go to court and start a family court case.

Going to court can be a complicated process and it can take a lot of time. It can be stressful and expensive, but it is sometimes necessary to decide your issues. This family law court process flowchart explains each step in a family law court case.

A family court makes decisions using the family law rules and laws. A judge looks at your separation agreement and the best interests of the child test to make decisions about custody, access, and parenting. This test looks at things like:

  • 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

You can talk to a lawyer who can explain what your existing separation agreement says you have to do. A lawyer can also tell you if there are facts that may convince a judge that the agreement should be changed or ended.

If you can't afford to hire a lawyer for your whole case, some lawyers provide "unbundled" or "limited scope" services. This means you pay them to help you with part of your case.

If you can't afford to hire a lawyer at all, you may be able to find legal help in other places.

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September, 2015