Taking time to make a parenting agreement is worth the effort

By Tony Poland, LegalMatters Staff • A carefully crafted and detailed parenting agreement may not only help avoid frustration and conflict but can save unnecessary court costs, says Toronto family lawyer A. Julia P. Tremain.

Tremain, a partner with Waddell Phillips Professional Corporation, says taking the time to consider all contingencies when putting a plan in place can prevent future heartache. And a comprehensive agreement makes sense even if the breakup is amicable and the two parents remain on good terms, she adds.

“Parents who get along may decide they want a general and perhaps vague agreement,” Tremain tells LegalMattersCanada.ca. “They are also assuming that they will always get along. But that is not always the case. One parent could get a new partner and may want to change the vacation or visitation schedule. That is why it is beneficial to at least have specifics in the arrangement so if the parents suddenly don’t see eye-to-eye, they have something to fall back on.

She says agreements can be as “general or as detailed as parents want.”

‘A parenting plan is essentially their Bible’

“What I tend to find is that people who are having a tough time communicating with each other want something more specific,” she says. “That way everybody understands what is expected. A parenting plan is essentially their Bible. This is how they are going to parent their children going forward.”

A parenting plan lays out how children will be cared for when their parents’ relationship ends. Tremain says parents can agree to any type of parenting arrangement although the focus should be on the best interests of the children.

The Department of Justice recommends the following when considering a parenting arrangement:

• It is important to have a plan in writing to keep a record of the decisions parents have made together about the future. Having it in writing can help you avoid future conflict.
• Legal terms such as “parenting time” or “decision-making responsibility” do not have to be included in an agreement but the language should clearly outline the arrangements the parents have agreed upon.
• Before signing a parenting plan, both parents should consult with their family lawyer or a legal adviser to ensure that they understand their legal rights and responsibilities. 

A parenting arrangement covers child and spousal support along with decision-making responsibilities, once known as custody, as well as parenting time, formerly known as access.

Serves as a guideline

“A parenting agreement can cover everything from what a child’s actual schedule looks like down to the minute and what might happen on long weekends, holidays and over the summer,” says Tremain. “It can encapsulate general issues such as how the parties will communicate with each other and guidelines for travel with respect to when consent will be provided.”

The agreement covers the time a child spends in each parent’s care. According to the Ontario government, parenting time can include:

Shared parenting time: Parents share the amount of time spent with the child. Under the Child Support Guidelines, shared parenting time is when a child lives at least 40 per cent of the time with each parent.

Split parenting time: This is when parents have more than one child and each parent has one or more children living with them for most of the time.

Supervised parenting time: This can be arranged if there are safety concerns during visits, or when children are exchanged between parents. When a supervised parenting time arrangement is in place, someone else must be present when the parent visits the children. Supervised parenting time can provide a neutral and safe setting for visits between children and a parent, or other family member who does not have decision-making responsibility. Parents can agree on a supervised parenting time agreement or it can be required by the court.

Much to consider

Tremain says there can be much to consider, especially since parents presumably made decisions on child rearing as a couple when their relationship was still intact. However, things can change when parents are no longer in the same home, she says.

“Day-to-day decisions may have been made together but now that will be made by the parent who has the children at the time,” Tremain explains. 

Parents may not share the same parenting style, which could present a problem when a couple’s relationship ends, she says.

“That is exactly why you need to have a comprehensive parenting plan,” says Tremain. “You want everything spelled out. The more specific the order, the easier it is to tell who is not abiding by it.”

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Decisions should be made that are in the child’s best interest, she says. And while a child should have a voice, they shouldn’t necessarily have a choice, Tremain adds.

“It is really for the parents to decide on an agreement that works,” she advises. “If the children are older, they may be entitled to more autonomy over their schedule. But at the same time, you want to ensure children get the message that they are still being parented.

“It is important that children realize that they still have two parents who need to know where they are and want to be involved in their lives,” Tremain says. “It should not be the child who runs the show.”

Decision may be left up to a judge

She says it can sometimes be difficult to reach a parenting arrangement that appeals to both parents and mediation or arbitration may be necessary if negotiation fails. If the parents cannot agree on a plan, they will have to take their case to court to decide on a parenting order that sets out decision-making responsibilities and parenting time, says Tremain.

To ensure a child’s needs are being met, a judge can ask for an investigation and report from an Office of the Children’s Lawyer clinical investigator. They can also request an assessment by a privately retained social worker, psychologist or psychiatrist who will speak to each parent, the children and sometimes other people.

A judge can decide:

• who will get decision-making responsibility;
• where the children will live; and
• when and how they will see the other parent.

“You are essentially putting your life in the hands of a judge. Whereas if you negotiate, you have so much more say in the final outcome,” says Tremain. “A judge will make the best decision based on the information presented but they don’t know the children and don’t know the family besides what they are told. In the end, it is the parents and the children who have to live with any agreement the court imposes. And let’s not forget that going to court can be expensive and stressful.

“A parenting plan really is an opportunity for the parents to sit down and think about how they want to parent their children for the foreseeable future,” she adds. “It is so much better for the parents to have control over it.”

This is the first of a three-part series. In Part Two, A. Julia P. Tremain will discuss the importance of communication in a parenting plan. Part Three will examine overnight visitations.