PARENTING COORDINATORS AS ARBITRATORS

Since Arbitrations conducted by Parenting Coordinators (PCs) in Ontario are generally considered “Secondary Arbitration” (Family Law Act, Section 59.7), PCs deal with issues arising from an existing Separation Agreement, Arbitration Award or Court Order.  As such, PCs implement, clarify, interpret, change and/or adapt parenting arrangements as children grow and change. The matter of when and whether PCs should enforce versus clarify or change existing Orders can be controversial, and challenging for PCs and their clients.

Besides conflicting over parenting issues, Parenting Coordination (PC) clients often battle with each other over procedural matters, such as whether the PC has the jurisdiction to determine the issue in dispute, whether and when an impasse should be declared, the format and timelines of the arbitration and costs.

Jirova v. Benincasa, 2018 ONSC 534 (CanLII):

In this case, the appellant argued that the arbitration conducted by the Parenting Coordinator was not fair and impartial, claiming that this was in contravention with s. 19 of the Arbitration Act, 1991, S.O. 1991, c. 17.

This was an important decision which impacts arbitration procedures for PCs and their clients.  Madame Justice Julie Audet described PC as “…a way for parents to settle parenting disputes with cost-efficiency, procedural flexibility and expeditiousness” (Paragraph 12).

Emphasizing that the requirements of equality, fairness and procedural fairness set out in s. 19 of the Arbitration Act” must be met at all times (Paragraph 18), Justice Audette highlighted some variations and exclusions regarding the rules of procedure and evidence [for PCs] (Paragraph 16), which sets PC apart from other FDR processes.

Dispute Resolution (DR) Clause:

1. It is helpful if the Parenting Plan/Court Order includes a clear DR clause, outlining how the parents might resolve future disputes over parenting matters and describing the PC’s jurisdiction;
2. The DR clause should be clear and the parents should agree about its interpretation;
3. The PC’s jurisdiction outlined in the Parenting Plan/Court Order and in the PC Agreement should complement, or at least not contradict each other;
4. The PC’s jurisdiction in the Parenting Plan/Court Order and in the PC Agreement must be appropriate and in accordance with PC standards; and
5. The PC should be comfortable with the delegated jurisdiction.

IMPORTANCE OF PARENTING COORDINATION INTAKE PROCESS:

The quality and thoroughness of the PC intake can significantly impact the success of the process.  While screening for domestic violence and power imbalances is important, the intake process should also include:

1. Reviewing the Parenting Plan/Court Order and PC Agreement with parents and their lawyers;
2. Reviewing the PC’s scope of authority/jurisdiction as defined in the Parenting Plan/Court Order and in the PC Agreement;
3. Addressing and resolving any contradictions between the Parenting Plan/Court Order and the PC Agreement, particularly if these contradictions might create confusion and potential conflict about the PC’s jurisdiction to arbitrate;
4. Reviewing arbitration procedures, including variations and exclusions re rules of procedure and evidence; and
5. Ensuring that parents’ choice of PC is an informed and appropriate one (3.01 of FDRIO PC Standards of Practice).

CHALLENGES TO PARENTING COORINATOR’S JURISDICTION:

Any challenges to the PC’s jurisdiction to arbitrate a matter must be determined by the PC before the PC proceeds to arbitrate the issue in dispute.  In the event of such a challenge, the PC should invite and address submissions from both parents and determine the matter of jurisdiction before proceeding to arbitrate the parenting matter in dispute.

It should be noted that it is not uncommon for a PC client to accuse the PC of bias and to launch a “grievance” against the PC.  Such allegations should be considered as a jurisdictional challenge rather than a “grievance” and dealt with accordingly, in a transparent manner by the PC. 

FACTORS TO CONSIDER WHEN DECLARING AN IMPASSE:

1. Parents’ wishes and input regarding whether and when an impasse should be declared;
2. Not every irreconcilable dispute requires arbitration. Some issues are a matter of “conflict management” or coaching.  For example, disputes over co-parent communications may be resolved by educating the parents about appropriate co-parent communication protocols, and/or with other helpful tools;
3. The time-sensitivity of the matter in dispute must be considered. For example, if there is a dispute over whether the children should attend a funeral which is imminent, a quick decision may be required vs. a dispute over school choice in 12 months;
4. The parents’ willingness and ability to resolve the matter if given time; and
5. The level of conflict and its impact on the children.

DETERMINING ARBITRATION FORMAT AND PROCESS:

1. Parents’ wishes/input re format and process;
2. Identification of issue(s) which are agreed to, as well as those which will be determined by the PC;
3. Parents’ ability and/or limitations to express themselves in writing or verbally;
4. Determining whether arbitration should proceed by written submissions only, a live hearing, a combination of both, or in some cases by teleconference;
5. Determining whether or not lawyers might assist or attend;
6. Dynamics of co-parent relationship, including power imbalances, e.g. written submissions allow parents to remain separate during arbitration process, while complying with “3-way” communication rule, whereas they should not be separated during a live hearing;
7. Magnitude of issue, e.g. a dispute over a variance to the regular parenting schedule, vs. a dispute over 3 or 4 days of “makeup time”, the latter being a more minor matter;
8. Informing parents re what information the PC will rely on including whether and who may be a witness;
9. Determining whether and how children’s input might be considered, and informing parents of same;
10. Informing parents of timelines and consequences of missed deadlines and/or non-participation;
11. Costs – clarifying how they might be addressed by the PC; and
12. A “pre-arbitration conference” can be held to sort out these and other preliminary matters.

COSTS – PC’S ROLE:

1. PCs may re-apportion costs by modifying payment allocation between parties, if one parent is being unreasonable or using PC services disproportionately.
2. Costs Awards may be issued by the PC as a result of an arbitration.
3. PC’s role re costs should be clarified during intake process, prior to the execution of the PC Agreement, and clarified once again when relevant, throughout the PC process, especially before an arbitration.

Presented by Marianne Cuhaci at FDRIO Webinar on April 29, 2019