Parenting Coordination is a child-focused alternative dispute resolution process for high conflict parents with a history of ongoing child-related disputes. The process combines dispute assessment, conflict reduction, case management, mediation, parent education and arbitration. Parenting Coordination is a secondary arbitration process which means that it is a family arbitration arising from a separation agreement, arbitral award or court order. Generally it deals with implementing or addressing issues arising from the earlier document, such as clarifying or adapting arrangements for children as circumstances change. Parenting Coordination is governed by the Ontario Arbitration Act and the Family Law Act.
The Parenting Coordination process is a difficult one for both clients and Parenting Coordinators (“PC”s). Invariably there is one parent who is more committed, or who is driving the process. In addition, once the arbitration phase of the process has been utilized, the losing parent usually disengages altogether. Throw in 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 an unsuccessful process. Lawyers, judges and parents need to ensure they fully understand the Parenting Coordination process, whether the named PC does open versus closed Parenting Coordination and the details of the named PC’s agreement before the commitment is made to a process with a one to two-year time commitment.
The case law in the area of family mediation-arbitration in general and Parenting Coordination specifically adds to the confusion. In the recent Ontario Superior Court of Justice case Lopatowski v. Lopatowski, 2018 ONSC 824, Justice Gray was faced with two parties who had committed to the Parenting Coordination process in final Minutes of Settlement and a court order incorporating the Minutes of Settlement. Both parties had counsel who were familiar with the Parenting Coordination process. Three PCs were named from which the parties were to select one. Neither the Parenting Coordination Agreement, nor any of the terms outlined at Section 59.7 of the Family Law Act formed part of the Minutes of Settlement.
After the first PC advised she did not take arbitration files, a motion was brought by the husband as the wife would not agree to another PC. A second court order provided for the choice of two PCs and the chosen PC provided her PC agreement for review. At that point the wife determined she would not proceed with the process and the husband moved for contempt. Counsel for the wife argued the consent orders referring the parties to PC were invalid and unenforceable. Although Justice Gray determined the wife was in the wrong court and that the matter was for the Court of Appeal, he commented that the court did have jurisdiction to make the Orders on consent for the parties to engage in the PC process.
Justice Gray referred to Michelon v. Ryder, 2016 ONCJ 327 (CanLII) where Justice Kurz stated there is no express statutory authorization to allow a court to include a term in an order requiring arbitration of disputes even on consent, and respectfully disagreed with that conclusion. Justice Gray also cited the decision of Justice Nelson in Horowitz v. Nightingale, 2017 ONSC 2168 wherein it was found that Minutes of Settlement did not constitute an arbitration agreement but rather contained an agreement to enter into an agreement to arbitrate, and that every secondary arbitration must contain the provisions required by the regulations of the Arbitration Act. Justice Gray again respectfully disagreed with this approach and stated 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.
As the Parenting Coordination process becomes more popular with lawyers, judges and clients, it is incumbent on those of us who practise in this area to ensure that it moves forward as a successful process for high conflict families following separation. On November 20, 2018 Family Dispute Resolution Institute of Ontario (“FDRIO”) will be holding the Inaugural Parenting Coordination Institute Conference. This daylong conference will be Day 2 of the annual FDRIO conference. We have gathered experienced practitioners from across Canada to speak on best practices, varying practices and processes, new ways of doing Parenting Coordination used in British Columbia and PEI, and the ins and outs of arbitrating Parenting Coordination issues. We are hoping that this day will attract counsel and practitioners to dialogue about the Parenting Coordination process as it is now and ways to make it a more effective experience for high conflict families.
About the author
Family mediator Elizabeth Hyde is also a family arbitrator and parenting coordinator with Riverdale Mediation Ltd. She is the Principal of Medius Dispute Resolutions and the Executive Director of mediate393 inc, a family dispute resolution service that is subsidized by the Ontario Ministry of the Attorney General.
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