Separation & Parenting Agreement
Child Custody Lawyer

A separation agreement is a written contract between separated spouses that outlines how the legal issues arising from their separation are being resolved. This typically includes:

• An explanation of what parenting arrangements will be in place for any children of the relationship
• What amounts of support will be paid and for how long
• What transfers or payments will be made between the spouses to resolve property issues

Separation agreements often also contain waivers or releases to protect against further claims between the spouses. If prepared properly, a separation agreement is legally binding and can be enforced by the court, if needed.

What issues need to be covered in a separation agreement varies from case to case. In cases that do not involve children, a separation agreement typically addresses spousal support and property issues. Where there are children involved, a separation agreement will generally also need to address parenting issues and child support.

However, it is important to understand that each of these issues (parenting, support, property), typically involves a number of sub-issues, which also vary in significance from one case to another.

For example, establishing parenting arrangements may involve dealing with issues relating to decision-making, access to information, the regular parenting schedule, holiday parenting schedule, communication between the parties and with the child, travel, and mobility.

You can, but that does not mean you should. Separating spouses sometimes choose to resolve their legal issues through a “kitchen table agreement”- that is, an informal written agreement that they have prepared on their own, without consulting lawyers. As long as this informal agreement is properly executed, it may technically be binding as a separation agreement. However, there are significant risks that arise from writing your own separation agreement:

• Your agreement might result in you receiving less in relation to property and/or support than you would be entitled to at law, or may result in you giving your spouse more than what they are owed.
• Your agreement may include terms that are not legally enforceable and/or it may not address all issues that should be covered by a separation agreement.
• If either spouse becomes dissatisfied with the terms of the agreement, they might try to challenge the agreement in court, on the basis that they did not fully understand their legal rights and obligations, did not understand the nature and consequences of the agreement, and/or did not have accurate information regarding the other spouse’s financial circumstances due to incomplete financial disclosure.

Working directly with your spouse to come up with the terms you want in a separation agreement can be a good way to resolve your matter efficiently and with minimal cost. However, you should both seek independent legal advice before signing any agreement, to make sure you understand what you are agreeing to and what you may be giving up.

A separation agreement is legally binding in Ontario, provided that it satisfies the formal validity requirements for domestic contracts under the Family Law Act (which mandate that the agreement must be in writing, signed by both spouses, and witnessed), and does not include terms that violate any applicable legislation.

“Parenting arrangements” is a general term used to refer to both decision-making responsibility (previously referred to as “custody”) and parenting time (previously referred to as “access”). In any case involving children, it is important that any separation agreement or parenting agreement addresses both of these issues by explaining:

1. How and by whom major decisions affecting the child(ren) will be made; and
2. When the child(ren) will be with each parent, both on a regular basis and during holidays.

As issues relating to decision-making responsibility and parenting time need to be determined based on the best interests of the child(ren) involved in a particular case, parenting arrangements are highly case-specific. There are many factors that impact parenting arrangements, such as:

• The ability and availability of each parent to provide care (which are in turn impacted by various factors such as the parents’ respective work schedules and other commitments, living arrangements, experience providing care, etc.)
• The level of communication and cooperation between the parents; and
• The age and maturity of the child(ren), and their views and preferences.

Due to the fact- and case-specific nature of these issues, it is difficult to generalize about what is most common or what is best when it comes to parenting arrangements. What parenting arrangements are suitable in any given case depends on the specific circumstances of that particular family.

If a parent has supervised parenting time, this means that that parent is only allowed to spend time with the children under the supervision of a third party.

Supervised parenting time may be necessary where there are concerns about a parent’s ability to behave appropriately around the child or to provide appropriate care, or where a parent has been absent from a child’s life for a significant time and there is a lack of familiarity between parent and child.

In these situations, having a supervisor present helps to ensure that any visits occur in a manner that is safe and appropriate for the child. Depending on the circumstances of the case, the supervisor may be a professional from a supervised access service or facility, or may be a friend or family member.

Yes. “Child custody lawyer” is an outdated term, but we are experienced in working with parents to create functional parenting time agreements that are fair and are in the best interest of the child/children. 

Exposure to conflict has been shown to have significant and long-lasting negative effects on children. Having a parenting agreement that outlines how major decisions will be made, how time with the child(ren) will be shared, and how disputes will be resolved helps to provide certainty and stability for both parties and the child(ren) and reduces the potential for conflict between the parents.