BREAKING NEWS: (As in Ontario) The Alberta Court of Appeal (Correctly) Confirms: Courts Cannot Order a Parenting Coordinator
Author: Hilary Linton
A recent Alberta Court of Appeal decision has confirmed that a court cannot order parents to retain a parenting coordinator.
In SSG and SKG (2022 ABCA 379 CanLII) the trial judge had, after a lengthy trial, ordered the parents to “retain a parenting coordinator with arbitration powers to resolve day to day conflict that may arise related to the detailed parenting plan or in relation to any conflict over joint decisions”. The trial court provided detailed provisions for how the process would work.
The judge made this order notwithstanding evidence that the parents had tried parenting coordination several times and it had been “nothing short of a disaster”, very expensive and that the parents had not consented to a continued PC role.
The Court of Appeal reiterated established law that, absent agreement of the parties or statutory authority, a judge does not have jurisdiction to order parties to submit their disputes to arbitration.
This aligns with Ontario law, where the Ontario Court of Appeal has in several decisions confirmed that the court has no authority to delegate its power to determine parenting matters to a third party. (M. (AC) v M (D), 67 O.R. (3d) 181; Walton v Walton (2022 ONCJ 394; Michelon v Ryder 2016 ONCJ 327.
In a recent article by Joanna Radbord and Rachel Birnbaum (Nov. 22, 2022, Lawyers Daily) the authors propose that courts can and should apply a more liberal interpretation of parens patriae jurisdiction and require high conflict parents to participate in parenting coordination. They point to court decisions requiring parents to participate in counselling, mental health supports, and also to recent amendments to the Divorce Act requiring that family dispute resolution be required before court proceedings where provinces have empowered the courts to make such orders.
The challenge remains that in Ontario, courts do not have the authority to make such orders under established law.
A lot of work should be done in my view before courts should order anyone to work with a parenting coordinator.
As much as the process can help children who are being harmed by the toxic conflict between their parents, PC is a high risk and expensive process. It is applied very unevenly across Ontario, with many different understandings of the function and its purpose. There is a real risk of increased harm to children resulting from an inappropriate PC process.
It would require specialized training and detailed screening protocols that are designed specifically to address the unique forms of power imbalance in parenting coordination, for me to feel confident that mandatory parenting coordination is a good idea. There needs to be standardized, structured process design best practices, something that does not currently exist, and also financial assistance to those who cannot afford what can be a very expensive process.
In short: a lot of work needs to be done before PC should become a mandatory process option in Ontario.
Hilary practised civil and family law for almost 15 years, and was a partner at a Toronto boutique family law firm when she started her dispute resolution career. She established Riverdale Mediation Ltd. in 2001, where the Riverdale team provides affordable family mediation, arbitration, parenting coordination and arbitration screening services, working with lawyers and with unrepresented parties. Hilary works hard to understand what each client needs to reach a workable settlement.