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What if we agree on what happens with our child?

If you and your partner agree on child custody, access, and parenting arrangements, you can put what you've agreed on in a parenting plan or separation agreement. This is a written contract that you and your partner make.

Your agreement can deal with custody and access alone, or can include other things like child support, spousal support, and dividing property.

You don't have to wait until you and your partner agree on everything before making a separation agreement. You can make an agreement on the things you agree on, while working on other issues.

You can make an agreement if you're married or in a common-law relationship.

There are some good reasons to make an agreement:

  • It can be faster, cheaper, and less stressful than going to court.
  • It lets you and your partner decide what works best for you and your family.
  • It lets others involved in your children's care, such as their school, daycare, and doctor, know what you and your partner have agreed to.
  • It's easier to prove what you and your partner agreed on if you have a written rather than a verbal agreement.

You can talk to a lawyer who can give you advice about the rules your agreement needs to follow to make it legal. If you can't afford to hire a lawyer, you may be able to find legal help in other places.

Legal Aid Ontario (LAO) has a service to help people with separation agreements. If your income is low enough, LAO covers the cost of up to 10 hours with a family lawyer to help you negotiate and draft a separation agreement.

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1. Agree on the terms of your parenting plan

You and your partner can try to agree on custody, access, and parenting arrangements without going to court. 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.

If a judge has to make decisions about your child, they use a legal test called the best interests of the child. Judges usually assume it’s better for a child to have a relationship with both parents after they separate or divorce.

If you and your partner agree on issues related to your children, you can make a parenting plan. A parenting plan can be an informal arrangement between the two of you, or it can be part of your separation agreement.

Your separation agreement can deal with custody and access alone, or can include other things like:

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. Some of them are:

  • who can make decisions about your child's education, religion, and non-emergency medical care
  • how information about your child is shared
  • when each of you spend time with your child
  • how conflicts are resolved, for example, mediation or arbitration
  • who your child lives with
  • what happens if one of you wants to move to another place
  • what are your child’s childcare arrangements
  • how each of you communicate with your child while they are with the other parent, whether by telephone, email, skype, or text
  • how changes to the schedule are made
  • how holidays and other special days are spent
  • who goes with your child on school trips
  • what extra-curricular activities your child participates in and who takes them to the activity and back
  • how visits with grandparents and other extended family members take place
  • how your child’s travel and vacation plans are made
  • how often you and your partner communicate with each other and how, for example, by telephone, email, or text
  • the rules your child follows about their phone, computer time, homework, allowance, etc.

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

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2. Make an agreement the court can enforce

Your parenting plan or separation 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.

Legal Aid Ontario (LAO) has a service to help people with separation agreements. If your income is low enough, LAO covers the cost of up to 10 hours with a family lawyer to help you negotiate and draft a separation agreement.

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3. Get your own independent legal advice

You don't need a lawyer to make a separation agreement. But it's a very good idea for each of you to get your own legal advice before signing one.

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.

You and your partner should not go to the same lawyer. It's important for each of you to get your own legal advice from different lawyers. This is sometimes called independent legal advice (ILA). The advice is independent because each lawyer is only working for one of you.

Besides helping you understand what you're agreeing to, there are other important reasons to get ILA. If you and your partner each get ILA, your agreement is less likely to be challenged later. And a court is more likely to order you and your partner to do what you agreed on.

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.

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, such as reviewing your separation agreement.

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

4. Sign the separation agreement

There are rules about how you make a separation agreement. These are called formal requirements. These rules say your agreement must be:

  • in writing
  • have a date
  • signed by both people who are making the agreement
  • witnessed, which means you and your partner have to sign the agreement in front of another person
  • signed by the witness

If you do not follow these rules, and you don't agree later about your separation agreement, the court does not have to order you or your partner to follow it.

There are no specific rules about what information you need to have in your separation agreement. But you should be as clear and detailed as you can so that the agreement shows exactly what you and your partner agreed to.

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Reviewed: 
September, 2015

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