Making plans: A guide to parenting arrangements after separation or divorce

Section 5: Options for developping a parenting arrangement

Section 4: What is the Best Parenting Arrangement for my Child gave you some information about different parenting arrangements. This section talks about the different ways that you and the other parent can use to come to a parenting arrangement.

Parenting Plans—putting your parenting arrangement in writing

You and the other parent can develop a parenting plan to put your parenting arrangement in writing. A parenting plan is a written document that outlines how parents will raise their children after separation or divorce.

You don't need to use a particular format for a parenting plan, but you can see an example of one in the Parenting Plan Tool on the Department of Justice Canada website. Your parenting plan can be short or long. It depends on your situation. The Parenting Plan Checklist also includes a list of many of the issues that you need to think about when developing your parenting plan.

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.

You and the other parent may want to write a parenting plan that is legally binding. This means that you can ask a court to enforce it. If you have your parenting plan included in your order under the Divorce Act, it will be legally binding. 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, or to make it a legally binding agreement. You will find more information about making agreements and obtaining orders under provincial and territorial legislation on the provincial and territorial family law websites. You can find links to these sites under Helpful Links.

Options for coming up with a parenting arrangement

When you're deciding which parenting arrangement is best for your children, and other issues like child support, there are many ways to come to a decision.

You can reach an agreement with the other parent through negotiation, with or without a lawyer, mediation or collaborative law. Or, you can have someone else decide the issue through arbitration (available in some provinces) or by going to court. These are all different types of "dispute resolution."

The approach that works best for you will depend on your situation. To help you decide which option is best for you, 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 matters
  • how willing you and your former partner are to co-operate in coming to an agreement
  • the amount of control you want over the agreement
  • if there has been family violence in the relationship
  • how much you can afford to spend

Before you decide which option is best for you, it's a good idea to get information and guidance from the family justice services and programs available in your province or territory. The Directory of Resources at the end of this document also lists other places where you can find more information about programs and services in your area.

Family law issues can be complex. When you are developing parenting arrangements, it's always a good idea to speak with a family law lawyer 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

Seeking the help of a lawyer is particularly important in cases where there has been family violence or there is substance abuse, or serious mental illness.

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 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 both parents "winning".
  • You stay in control—no one else makes the decision for you.
  • It's usually less expensive.
  • It usually takes 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 open between you and the other parent.
Personal negotiations

Personal negotiation involves discussions between you and the other parent to try and come up with a compromise or agreement about parenting issues.

Some things to consider:

  • You and the other parent are in complete control of the discussions as there is no third party involved.
  • You can use 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.
  • Personal negotiations may also be difficult where there are serious mental health issues or problems with substance abuse.

You're 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 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 lawyer before you sign it. This way, you can make sure you understand your legal rights and responsibilities before you sign. You may also have forgotten something important that the lawyer can explain to you.

A family law lawyer can also give you advice about having your parenting plan made into an agreement or reflected in a court order. One factor is that schools, doctors, and government departments may need you to give them a formal written agreement or court order. They need documents that are clear and easy to understand. The Directory of Resources at the end of this document has information about how to find legal advice and information.

Negotiation with the help of a lawyer

Another option is for you and the other parent to each hire a lawyer who will negotiate for you and help you reach an agreement.

Some issues to consider:

  • You and the other parent don't need to meet face-to-face—lawyers can talk for you.
  • Your lawyer is your advocate. If there has been family violence or if there are issues of power 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 lawyers to explain your legal rights and responsibilities before you sign an agreement.
  • Lawyers 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 can cost more time and money than if you and the other parent worked out an agreement yourselves.
  • Each parent is usually responsible for their own legal fees while negotiating.
Choosing a lawyer

Family law lawyers generally try to take the emotions out of the negotiations and stick to the facts, the law and finding solutions that work. But different lawyers take different approaches to negotiation and litigation. It's important for you to speak to a potential lawyer about their approach before you hire them, to make sure they're a good fit for you.

Collaborative Law

Collaborative law is a specific type of negotiation. In collaborative law, you and the other parent, your lawyers and any other professionals involved, agree to work cooperatively to come to an agreement. During the collaborative process, you and the other parent agree not to bring any court applications. You and the other parent negotiate with one another and you each have your lawyers present at the meetings to explain legal issues and help you come up with solutions.

Some issues 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 lawyer.
  • You can ask other professionals, like financial specialists and mental health professionals (for example, social workers, psychologists, parent coaches) to help you with specific issues when they come up.
  • There's an incentive for the lawyers to help you reach an agreement, because in collaborative law, the lawyers who are representing you and the other parent cannot represent either of you in court. If the collaborative process isn't successful, you will both have to hire a new lawyer to represent you in court.
  • Everyone signs a contract agreeing to work collaboratively to come to an agreement, so it can take less time and cost less.
  • On the other hand, if you involve a lot of professionals, collaborative law can cost more than some other options.
  • 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 lawyer.
  • In collaborative law, each parent must fully disclose all financial information to the other parent. If there is a strong chance that this will not happen, you should ask your lawyer if this is the right choice for you.
  • You and the other parent can rely on your lawyers to explain your legal rights and responsibilities before you sign an agreement.

If you are interested in collaborative law, you should ask potential lawyers whether they have this type of practice. The Directory of Resources at the end of this document has information about how to find a lawyer.

Mediation

A mediator is a neutral third party who can help you and the other parent identify issues in dispute, discuss these issues and come up with possible solutions. You and the other parent tell each other directly what you want and need for yourself. You also say what you believe is in your children's best interests. You and the other parent are responsible for making the decisions about your parenting arrangement. 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 lawyer before you start. If you come to an agreement, it's also important to show a draft of the agreement to your own lawyer before making it final. This way, you can make sure you understand your legal rights and responsibilities before you sign.

Some issues to consider:

  • Mediation usually costs less than going to court.
  • Mediation can be much quicker than going to court.
  • Mediation can be confidential.
  • 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 for some parents.
  • Mediation can involve other people besides the parents. For example, it can involve a new partner or extended family members, if needed. This can sometimes help get to the root of problems.

Mediation usually involves direct discussions with the other parent. Therefore, mediation is not appropriate 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. This is something you must think about. Before you start mediation, a skilled mediator will ask you and the other parent to go through a "screening process" 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.

Choosing a mediator

In most parts of Canada mediators are not 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
  • the nature of their practice

Max and Julie

Things weren't going well. Max and Julie 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 shouting. Max accused Julie of not caring enough about the kids. Julie accused Max of turning the kids against her. It looked like they were headed to court.

Then one of Max's friends mentioned 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 Julie, but she immediately rejected it. Her first thought was that, if Max was suggesting it, he must have thought he'd get a good deal out of it.

But Julie was curious, so she 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. She read that this was important because parents need to continue to work together as co-parents for many years. So she agreed to try it.

Max and Julie have now had three mediation sessions. While they haven't yet agreed on everything, they have learned to listen to one another better, and to communicate without getting too emotional or too angry. The mediator is also helping them to focus on coming up with an agreement that is best for Lily and Peter.

Options where someone else makes the decision

  1. Arbitration

    In some provinces, parents can resolve parenting issues through arbitration. In arbitration, both parents agree that they will allow a neutral person—the arbitrator—to decide their legal issues. Arbitration is a private process and parents are responsible for paying the arbitrator, as well as their own lawyers.

    Some issues to consider:

    • Arbitration may be faster than going to court and you don't need to file court documents.
    • You and the other parent can choose the arbitrator, and 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 will decide the issues for you.
    • 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 lawyers, as well as the arbitrator's fees, this can be an expensive process.

    It's important that you speak to a family law lawyer to decide if it would be appropriate for you.

  2. Going to court

    Going to court 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 have to go to court, the court will encourage you and the other parent to come to an agreement, if possible. You should not expect the court to give you 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 issues to consider:

    • The judge may not agree with your point of view, and may make a decision that you do not agree with.
    • You and the other parent have little control, because the judge makes the decisions and you will have to live with those decisions.
    • If none of the other dispute resolutions processes are appropriate for you, going to court may be the only option.
    • Going to court can take a lot of time and be very expensive.
    • In court, each parent has to build their case to try to get the outcome they want. This may have a negative long-term affect on your ability to deal with the other parent on issues related to the children.
    • 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.

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 and to feel like you're thinking about their needs. 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 parenting coaches for guidance and advice before you speak with your children about their feelings or needs.

Some children want to provide input into decisions that will affect their lives. But, it's not appropriate for children to make the decision about the parenting arrangement or to take sides. Older children generally understand the difference between giving input and making a decision. But it's important to stress the difference with all children. They need to understand that while they can provide input, it's their parents or a judge who will make the decision. It's also important for them to know how you will use their input. Otherwise, if you make a decision that isn't what they asked for, they can feel angry and powerless. To address this concern, you might say something like

We (the parents) are working on the parenting schedule together. Is there anything that is really important to you that we take into account? We will do our best, but if it's not possible for us to accommodate what you are asking for, we will let you know.

In some situations, even when given the opportunity, children may not want to provide their opinion. That's O.K. too.

Listening to your children's views doesn't mean that you ask them who they want to live with. This can make children feel like they have to choose between you and the other parent. Listening to your children means that you ask them about things that are important to them and could affect the schedule. For example, are there activities that are important to them and which they want to continue (for example, hockey)? Are there special activities that they like to do with each parent? Is spending time with friends a particular priority for them?

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.

You should be prepared that 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 afraid to upset you, your children may find it easier to speak with a neutral third party. Whether they speak directly to you, or to you 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 which parent they want to live with.

You may also include your children's views in the 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.

If you ask a judge to decide on the best arrangement for your children, there are a few ways that the judge can take your children's views into account. These include:

  • ordering an assessment
  • having a lawyer for your children
  • having the judge interview them

An assessment is where a social worker, psychologist, or psychiatrist gathers information about your family for the judge. 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.

Which option would work best in my situation?

Ask yourself the following questions:

  1. How much conflict is there between you and the other parent? Will you be able to co-operate to resolve the issues?
  2. How quickly do you want to resolve the issues?
  3. Do you want to control the process yourself, or are you willing to give up control to others (for example, a judge)?
  4. Has there been family violence, or abuse? Are there issues of control?
  5. How much money do you have to spend on the process?
  6. How will your children's views be included in the process?

Making changes to an agreement or court order

Sometimes, after you have come to an agreement or a court order, the situation changes, and the arrangement doesn't work for your children anymore.

For example, perhaps when you made your original arrangement:

  • your children were one and three. Now they're seven and nine and involved in competitive hockey. The parenting schedule in your agreement just isn't practical.
  • you and the other parent lived in different cities. You're both now 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 different decision-making responsibilities (for example, one had responsibility for health and education, the other religion). Your communication is now much better, and you could make all important decisions jointly.
  • you were both able to care for the children well. But now, the other parent has an addiction and there are safety issues 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 dispute resolution methods discussed earlier in this Section, for example mediation. If this doesn't work, you will need to explain the situation to a judge who will make the decision.

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 to set out in a new court order, which would make them legally binding. This can avoid problems and confusion, in case disputes come up in the future. Because you would both consent to the court order, it's a simpler process than if you didn't agree.

If you have a court order and you and the other parent cannot agree on if or how it should be changed, you will need to apply to the court and ask a judge to change it.

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.

If you think that you need to change your order or agreement, it's a good idea to speak with a lawyer.

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