The parenting coordination process is a difficult one for both clients and their lawyers.
Invariably there is one parent who is more committed, or is driving the process. Also, once the arbitration phase of the process has been utilized, the losing parent often disengages altogether. Add to that the fact that many parents have not been fully educated on the process before committing to it in writing and you have the makings of a confusing and often unsuccessful process.
One of the most significant challenges is getting clients to the starting line. While clients may have agreed to the concept of parenting coordination at the conclusion of their case, whether by separation agreement, court order or Minutes of Settlement, they are rarely eager to enter in to another quasi-legal process that requires more money and often hard work on their part.
Lawyers, and arbitrators/PCs themselves often do not fully understand the unique elements of parenting coordination. This is largely because it is still a new process in Ontario, and we have no legislative or court directives to assist in a shared understanding.
The case law in the area of mediation-arbitration in general and PC is helping to define the process, though not always in a consistent manner.
In the recent Ontario Superior Court of Justice case Lopatowski v. Lopatowski, 2018 ONSC 824 (CanLII) Justice Gray was faced with two parties who had committed to the PC process in final Minutes of Settlement which were incorporated into a court order which named three professionals as possible PCs. Both parties had counsel who were familiar with the process. However, neither the PC Agreement nor any of the provisions of Section 59.7 of the Family Law Act formed part of the Minutes of Settlement.
After the first PC advised she did not take secondary arbitrations, the wife declined to participate in the selection of a new PC and the husband brought a motion before the court. A second order provided for the choice of two PCs, following which the husband sent the wife the PC agreement of his preferred PC for review. At that point, the wife determined she would not proceed with the process and the husband moved for contempt before Justice Gray.
Counsel for the wife argued the consent orders referring the parties to PC were invalid and unenforceable because they did not comply with the requirements, set out in both the Regulation under the Arbitration Act, and the Family Law Act, which include the requirement that both parties be screened for power imbalance and domestic violence by the PC to assess if the case is suitable for that process.
Justice Gray determined the case was in the wrong court and dismissed it on that basis. But he also went on to comment that, in his view, contrary to the decisions in Michelon v. Ryder (2016 ONCJ 327 CanLII- Kurz, J) and Horowitz v. Nightingale, 2017 ONSC 2168 (CanLII- Nelson, J) the court did have jurisdiction to make a binding order for parenting coordination. Justice Gray respectfully disagreed with the decision of Kurz J. in Michelon v. Ryder, where it was held that there is no express statutory authorization to allow a court to include a term requiring arbitration of disputes even on consent. Justice Gray also respectfully disagreed with the decision of Justice Nelson in Horowitz v. Nightingale, where in it was found that Minutes of Settlement do not constitute a family arbitration agreement as they do not comply with the requirements of both the Regulation 137/07 under the Arbitration Act and s. 59(7) of the Family Law Act. Justice Nelson found that Minutes of Settlement are just an agreement to agree; every secondary arbitration agreement must comply with these requirements. Justice Gray again respectfully disagreed, finding that the parties had fundamentally agreed that parenting disputes would be dealt with by a PC, both parties had counsel and counsel would have understood the terms of the PC agreement which are widely used in Ontario.
More confusion still comes from the seeming uncertainty about the meaning of the screening requirements in secondary arbitration processes (Parenting Coordination).
In a recent edition of Carswell Cases for the week, the Lopatowski decision was reviewed. The author stated:
“What the parties needed to do at the time of getting the consent order was to obtain a mediation/arbitration agreement from the named potential PCs so that there could be a valid arbitration agreement and secondary arbitration agreement. In addition, once the party has been named, the PC must arrange for the parties to be screened personally or through third parties so that a certificate of screening can be signed”.
ONT. REG. 134/07 Family Arbitration sets out at 2(2), the mandatory requirements for every secondary arbitration agreement, which includes parenting coordination agreements. The Regulation requires a clause that asserts that the secondary arbitrator themselves has separately screened each party before the process, and does not permit a third party to conduct such screening in secondary arbitrations. Therefore, when the dispute resolution process is a secondary arbitration (Parenting Coordination) the arbitrator (PC) must do their own screening.
A third important decision, Jirova v. Binincasa, 2018 ONSC 534 (CanLII), is one of the most comprehensive decisions about the PC process to date. Following the arbitration of an issue, the father appealed the award based on a number of issues (see case comment in this newsletter by Marianne Cuhaci.) The part most relevant to this discussion is the finding of Audet J. that the father had agreed to a process that was different than what he had contemplated, but this was not reason enough to overturn the award as the process that was delivered complied with both the relevant legislation and the terms of the contract between the parents and the PC. It is also interesting to note that the father later blogged on: “Beware of ADR processes, they do not have to follow the law and, the court will not back you up.”
While the use of parenting coordination as a process to settle post settlement parenting disputes has become a common term in many family law agreements, it is incumbent on counsel who wish to advise their clients in this area to ensure their client (and themselves) fully understand the PC process, the nature of the process for each PC they include in their agreements (open versus closed), the experience and qualifications of the named PCs, and ensure the formalities of the Arbitration Act and the Family Law Act are followed.
Finally, if either your client, or their former spouse is highly resistant to the idea of PC after having some time to reflect on the decision, it is likely they will correctly be screened out of the process by the PC. You can lead a horse to water…………
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