Case Law Review Parenting Coordination – Some New Cases

Parenting Coordination is a hybrid process combining mediation and secondary arbitration. Although parties may have agreed to retain a PC in their consent Order or separation agreement, courts have ruled this is just an “agreement to agree” to retain a PC and without a signed PC Agreement, a court cannot order one party to execute the agreement (Horowitz v. Nightingale).

In the recent case of Carmichael v. Carmichael 2019 ONSC 6313 the court was dealing with a high conflict couple who were waiting for a Section 30 assessment. As communication about their children was one of the main concerns for the court, the parents were “directed to seek out the services of a parenting coordinator to assist them with their communication issues”.

Campbell v. Campbell 2019 ONSC 5493 was a motion to change a 2017 Order for parallel parenting of a 6-year-old. In the original order, the parents were “required” to retain a PC. By the time of the motion to change 2 years later, the PC had “quit” (we call it terminated). Justice Mitrow reflected that the court has an obligation to control runaway litigation and referred to the well-known effects of a child’s exposure to adult conflict.  The court went on to Order the parties to comply with the final Order and retain a new PC, make their best efforts to agree on a mediator to assist the parties in resolving any ongoing parenting issues and if there was no agreement on a mediator with in two weeks, then “they shall forthwith attend an intake meeting with the Family Court-affiliated mediation service”.

While it is refreshing to see judges reflecting on topics such as runaway family litigation and the effects on kids of high conflict separation, both the PC process and family mediation are voluntary processes and cannot be ordered by a court. The only order that a judge can make is for parties to attend an intake with a court affiliated mediation service under Rule 17 (8) (B). In addition, if the parties had retained a PC as they were required to do so, why would they then need a mediator to assist with resolving ongoing parenting issues. 

It is clear from the discussions above that there needs to be more education/information to both counsel and the judiciary on the processes that are of a voluntary nature.