Parenting Plans

One issue for parents to address as they are making or reviewing their parenting plan is how to involve their children in the development of a plan. While it is preferable for parents to decide together how to involve their children and develop a joint strategy, this is not always possible – especially at the early stages of separation. It is important not to draw children into parental disputes or ask children to “choose sides.” However, parents should be aware that their children’s views and preferences are important factors when deciding about their care, and, particularly as children become older, children should be consulted as plans are being made and revised.If the parents have different perspectives on their children’s views, it may be helpful to involve an independent professional who can meet with the child to explore their views and share this information with the parents.
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The Public Health Agency of Canada has some very useful information for parents about helping children involved in separation and divorce, and to help parents communicate with their children about the changes in their family life. This information is premised on the recognition that considerations and communications with children should depend on their ages and stages of development. See the Justice Canada website: Because Life Goes On…Helping Children and Youth Live With Separation and Divorces.

Parents may want to have a parenting plan that is legally binding. If a parenting plan is included in a Court Order under the federal Divorce Act or the Ontario Children’s Law Reform Act, it will be legally binding, and a court will enforce it. Otherwise, to be legally binding, the plan must be in writing, signed by both parents, and their signatures need to be witnessed.

A parenting plan may have practical and legal significance even without being incorporated in a Court Order by being part of a Separation Agreement, but it is preferable to consult a lawyer and to get legal advice to discuss issues related to enforceability. A family law lawyer can also discuss the implications of a parenting plan for child support and other legal issues. For example, one factor to consider is that outside agencies or professionals, such as schools, health care professionals, and government agencies may require a formal written agreement or Court Order if they are to provide reports or comply with the plan in other ways and will need documents that are clear and easy to understand.

Parents can make a parenting plan together without seeking professional help. Parents will often benefit from gaining assistance from mediators, counsellors, therapists or advice from lawyers to help make a parenting plan. It is an especially good idea to seek independent legal advice before finalizing a parenting plan, in particular to understand its implications for financial issues like child support.
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There are family lawyers who are willing to provide advice or consultation to parents on a “limited scope” basis, charging a fee, usually an hourly rate, to review a parenting plan or other agreement, without providing full representation. See website of the Ontario Family Law Limited Scope Legal Services Project for more information about this type of legal service, including names and contacts for lawyers doing this work.

Parents should begin consulting and planning for their children as they begin the process of separation. However, separation may be a particularly stressful and uncertain time for parents and children, and it may take a while for the situation to be stable enough to make a long-term plan.It will often be helpful for parents and their children to “try out” an arrangement or schedule to see how it meets their needs and adjust their plan accordingly. It is often useful for children to try out different arrangements, and then seek their views before making definite plans. While children’s experiences and opinions are valuable in this process, it does not put them in the position to make the final decision.
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In some cases, parents may decide to have a temporary parenting plan that deals with the most pressing issues that need to be resolved, while deferring the negotiation of a longer-term plan. Even if a plan is intended to be temporary, it will be useful to have it in writing. Such a plan should include a specific statement that it is intended to be a temporary or interim plan that will be replaced by a longer-term and often more detailed plan. However, if parents do not review or change their plan as anticipated, a status quo parenting arrangement may be established that could be a factor in future court proceedings, long after the temporary plan was expected to be replaced.

Some aspects of a parenting plan are very likely to change as children grow older and parental circumstances change. If parents cannot agree between themselves how to modify their parenting plan, they may find it helpful to jointly consult a mediator or a parenting coordinator, or to speak to their lawyers. In some circumstances, it may be appropriate to seek advice from a mental health professional or other expert before modifying a plan. As discussed in detail below, parents should consider issues related to possible review and modification when making an initial parenting plan.
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Even if a parenting plan has been incorporated in a Separation Agreement or Court Order, in most situations parents may agree to modify or change their parenting plan without returning to court. However, the modified plan may not be legally enforceable without formally altering the Court Order or Separation Agreement. Further, a substantial change in the amount of time that a child spends with a parent may affect child support obligations. It is advisable to consult a lawyer if a substantial change is being considered.

Before addressing issues related to the specifics of parenting schedules and plans, parents should consider the psychological context of “parenting apart” and the principles that should guide their decision-making and co-parenting. Parents going through the process of separation face real challenges as their relationship changes to one of “co-parents,” who will share parenting responsibilities and care for their children while otherwise pursuing separate lives. Parents sometimes fear that loss of their intimate adult relationship will also mean the loss of their parent-child relationship. They are also concerned about the negative impact that their separation may have on their children’s healthy development. It is important for parents to be aware of their children’s experience with their parents’ separation, and to ensure that their children are adequately supported throughout the process. The Divorce Act and Ontario legislation require parents to act in the best interests of children. This includes expecting parents, to the best of their abilities, to protect their children from conflict that may arise from separation or divorce. It also includes an expectation that parents will support the child’s relationship with the other parent, unless inappropriate to do so (e.g. family violence concerns).

There is a growing body of research on the effects of separation and divorce on children. Using this research makes it possible to better assess children’s needs and to develop plans that meet those needs and promote children’s healthy development. It is generally accepted that in most cases where parents have separated:
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• Children do best in both the short-term and the long-run when they feel loved and cared for by both parents.
• Children generally do better when both parents have stable and meaningful involvement in their children’s lives.
• The strength of a parent’s relationship to a child is affected more by parental commitment, warmth and the ability to meet the child’s needs than it is by the amount of time spent with the child.
• Each parent has different and valuable contributions to make to their children’s development.
• Children should have both structured routine time (such as bathing or doing homework) with each parent, as well as unstructured time (such as playing in the park).
• Parents should help their children maintain positive existing relationships, routines and activities.
• Children find security in personal possessions, like a favourite stuffed animal, and should be permitted to bring personal possessions back and forth between homes, regardless of which parent purchased them.
• Parenting plans will need to be adjusted over time as the needs and circumstances of parents and children change.
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Children are harmed by exposure to conflict between their parents. This is one of the most consistent findings in the research on post-separation parenting. High conflict between parents increases children’s anxiety and negatively impacts healthy child development. Family violence is a particular risk factor, but parents should also avoid arguments in the presence of their children, such as during exchanges. Family justice professionals also commonly advise that:

• Parents should not make children feel that they have to “choose” between the parents. Children should not be made to feel guilty about having a good time with the other parent.
• Each parent should strive to have a respectful relationship with the other parent. • Each parent should support the child’s relationship with the other parent.
• A parent should not make derogatory comments about the other parent in the presence of the child or when a child may overhear them. Relatives and friends should also be discouraged from making such comments in the presence of the child or within their earshot.
• Children should not be expected to communicate messages between parents, in particular about financial matters or issues about which parents disagree.
• Parents should exchange the children without arguing and by acknowledging each other in a polite way.
• A parent should allow their children to attend important family celebrations and events with the other parent.
• While parents should acknowledge that there may be differences between their two homes, such as in daily routines and activities, religious observances and diet, it is preferable to refer to these as “differences,” and not as “better” or “worse”.
• Young children need consistent sleep and feeding schedules in both homes.
• While parents should try to develop consistent rules about acceptable adolescent behaviour, most older children are adaptable and tolerate differences in rules (such as between home and school). In some situations, day-to-day parenting issues may need to be addressed in a parenting plan. For example, this may arise in relation to safety issues or children with specific health concerns. However, parents also need to appreciate that their former partner’s lifestyle and day-to-day parenting approaches generally cannot be controlled in a parenting plan.
• If one parent has been significantly more involved with the care of the children before separation, or the other parent has never lived with the child, the more involved parent may need to help the other parent gain the skills and knowledge to care appropriately for the child and support the development of a positive relationship between the child and the other parent. The parent with less or no prior involvement will also have made efforts to gain the necessary parenting skills and knowledge. While the parent who has had primary care may feel concerned about giving care of “my children” to another person, it is important that the primary caregiver allows the other parents to have time alone with the child to allow their relationship to develop, unless there are legitimate concerns about the other parent’s capacity to care for “their children”.

Transitions, by their nature, can be difficult for children. Many children struggle when they are required to interrupt an activity or to leave a parent. This difficulty can be further magnified if children are also exposed to conflict between their parents. It is not unusual for children to appear distressed or to show sadness or anxiety at transition times. It often helps for the transitions to take place at school, daycare or camp. If this is not an option, it may be better if the parent who has care before an exchange takes the children to the other parent. This signals parental support for the transition and lessens the children’s sense of being interrupted and taken away from a parent.

Some separated parents are able to maintain warm and friendly relations with each other, but for many, their relationship is likely to be strained, especially in the period following the separation. Even if parents have a good relationship, there will be disagreements. Despite disagreements, and especially if parents have a strained relationship, it is important for children that their parents communicate effectively and respectfully.
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Often much communication between separated co-parents is by email, text or other electronic communication. There is a lot of information available to help co-parents communicate effectively. One central theme is to focus communications on the specific matters at issue and avoid negative comments about the other person. It may be helpful for parents to see themselves as partners working together. Their communications should reflect the common goal of moving forward with their child rearing with minimal conflict. A helpful slogan is that such communications should be “B.I.F.F.”: Brief, Informative, Friendly and Firm.” If the other party is making derogatory comments, it is not helpful to “respond in kind.” Instead, each parent should use their best efforts to “take the high road”. Consider how the other parent may feel and react before sending a text or email. One way to think about communications with the other parent is to imagine how a judge might later view the exchanges. Would a judge view your emails as cranking things up and focused on the other parent, or calming them down and child focused?

Canadian law does not start with a presumption that there will be equal parenting time, or any other particular parenting schedule. Rather both research and Canadian law support individualized plans for children based on the needs of each child in the family and the circumstances of the parents, rather than presuming that a plan like one based on equal parenting time, is appropriate for any specific child.
The use of plans based on roughly equal parenting time is becoming more common in Canada, and some children benefit from such arrangements. Other children experience these equal parenting time schedules as disruptive or uncomfortable. Some children are deeply affected by the continuous exposure to parental conflict that such arrangements may intensify. Equal parenting time is rarely appropriate if:

• there is a high level of parental conflict, or the parents communicate poorly;
• the parents do not live close to one another;
• the parents were not each significantly and actively engaged in the care of the children before the plan is put into place;
• the children are pre-school-age and primarily attached to one parent; or • the children are older and do not support this arrangement.

Further, whatever the initial plan, the needs of children and circumstances of parents change as children grow older and plans for their care generally need to be modified if they are to remain developmentally appropriate. As will be discussed, in some cases it may be appropriate for children to start spending most time in the care of one parent, and over time the plan may evolve towards equal parenting time.

The discussion that follows offers suggestions for plans and parenting schedules that may be appropriate for children of different ages, and in particular emphasizes factors that parents should consider for children of different ages. However, each child and parenting situation is unique. Inevitably no plan will be “perfect” for either the parents or their children, and each plan will be based on compromises and trade-offs. Parents — sometimes after professional consultation – generally know their children well, and together can often decide on a plan that meets the needs of their children and that they can realistically carry out. A mediator may be able to help parents make a workable schedule if they are unable to agree. Failing that, an arbitrator or a judge may resolve the issues needed to make a parenting plan.