News, Updates & Blog

by, Elizabeth Hyde, LL.B., LL.M., FDRP. PC, Acc. FM.

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…………

Elizabeth Hyde is a Toronto family lawyer, mediator, arbitrator, parenting coordinator and ADR trainer.

SCJ Justice pens important decision showing clear understanding of PC process

by, Marianne Cuhaci, FDRP PC, co-chair FDRIO PC section

In Jirova v. Benincasa (2018 ONSC 534), Madame Justice Audet described parenting coordination in the context of Family Disputes, pointing out that it is:

“…a way for parents to settle parenting disputes with cost-efficiency, procedural flexibility and expeditiousness.” (par 12, p 5).

Acknowledging 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, page 8), Justice Audet highlights some of the variations and exclusions “…which allowed the PC to depart from the provisions of the Act with regards to rules of procedure and evidence…” (par 16, page 6).

A summary of a few of the variations the judge refers to are:

1. That the PC process is non-confidential and that the PC may issue a report to the parties, their lawyers and the Court. (p 6)
2. That arbitration may be conducted in a hearing and/or by written submissions only, and that as such, the parties are waiving their rights under section 26 (1) of the Arbitration Act with respect to their right to a hearing (p 6)
3. That the PC may rely on any information she received during the non-decision making phase of the PC process, when acting as an arbitrator but that notwithstanding this, that the parties must provide their full submissions for arbitration purposes. (p 7)
4. That the information the PC receives from the children or the children’s therapist is only disclosed to the parties with the children’s consent, or at the PC’s discretion, despite the fact that this provision may not satisfy the requirements of the Arbitration Act. (p 7)
5. That the parties waive the right to have a reporter present at an arbitration, unless the arbitrator determines otherwise. (p 7)

It is this very “departure” from some of the provisions of the Act which attract consumers to PC.  Without these variations, there would be little point in retaining a PC!  Despite their advantages, these provisions can also at times create some practice and procedural challenges.

Written Submissions vs Live Hearing:

It is fairly standard for PC clients to “give up” their right to a live hearing.  Most PC clients prefer arbitrations by written submissions only because they are more cost efficient and the parties feel more comfortable and emotionally safe.  That said, there are times when one or both parties may request a hearing, or circumstances are such that a hearing is the only option.

Notwithstanding this provision, PCs should think twice before denying a party a hearing if they ask for one, regardless of the provisions in the PC Agreement.

Some issues to be considered are:

1. Time-sensitivity of the matter in dispute.
2. The magnitude of the issue. All things being equal, the more “major” the issue, the greater the formality, recognizing that there are several factors to consider other than the magnitude of the issue.
3. The dynamics between the parties, including possible power imbalances
4. The wishes/input of the parties and their lawyers.
5. Costs

In this particular case, it appears that notwithstanding the provision in paragraph 36 of the parties’ PC Contract, the PC made the wise decision to grant the appellant a hearing when he requested it. 

OTHER ISSUES ADDRESSED IN THE DECISION:

Screening For Domestic Violence and Power Imbalances:

Despite the apparent discrepancies in the dates the PC signed the Declaration, the judge seemed satisfied that Ms. Claridge did fulfill the requirements of the Family Statute Law Amendment Act.

In recent years, there are more examples of parties raising some aspect of screening as a ground of appeal.  It seems to be the latest “technicality” being raised in the conflict industry.

This means that PCs must add clarity to their PC Agreements with respect to the purpose of screening, how and when it is conducted confidentiality of the screening, the limits of same, and other details (see FDRIO’s PC Screening Guidelines).

Regarding the Matter of When to Screen:

Some PCs schedule the confidential intake meeting with each party (which includes screening) before the PC Contract is signed, and others screen after it is signed.  There are clear advantages to screening before the parties sign the PC Agreement, since this allows them with a thorough opportunity to learn more about the PC process, for the PC to satisfy herself that the parties are well informed before they consent to it (Standard III , FDRP PC Standards of Practice), and to assess whether the parties are “governable”, i.e. able and willing to follow a (PC) process.

In addition, the PC may screen the parties out of the PC process altogether, and/or determine that she must make adjustments to her process for safety or other reasons.

ILA:

Madame Justice Audet referred to s. 59.6 of the Family Law Act, which “requires that the parties obtain independent legal advice prior to signing such an agreement for any resulting award to be enforceable”. (par 14, p 5).

PCs generally do require that PC clients receive ILA by requesting certificates of same. However since PCs conduct Secondary Arbitrations, ILA is not a mandatory requirement (see 59.7 Family Law Act) (but screening is) and therefore this is more of a “best practice” requirement than a statutory one.

“The Respondent Partner’s Participation/Interference in the Hearing”:

Some factors for a PC to consider when determining whether to allow a third party or support person to attend a hearing are: the impact of the person’s attendance on the process, whether the other party objects to such attendance, and the reasons for such objection.  Another important issue to clarify would be whether that “support person” is attending as a witness, or truly as a “support person”, and whether the party does in fact legitimately require that support.  That said, allowing a support person may be risky in the context of an arbitration, particularly if the other party objects.

Justice Audet concluded that the PC was correct in this case to allow the respondent’s partner to provide his input,

PC’s” Refusal” to Consider the Custody and Access Assessment. 

Justice Audet pointed out that the appellant did not produce this document in the context of the arbitration.  It appears that he may have had the impression that the information he provided the PC during the intake may be used as evidence in an arbitration.

This issue serves as a reminder that, prior to any arbitration, the parties should be reminded that any information received by the PC during the screening remains confidential, and that they must re-submit any evidence the PC may have received during the non-decision making phase of the PC process if they wish the PC to consider it, this is despite the fact that the PC may rely on information she may have received during the non-decision making phase, i.e. before the arbitration.

PCs Being Held up to Standard of Trial Proceedings:

Justice Audet noted the test in Kainz v. Potter, (2006), which held that while Dr. Leonoff was expected to conduct his arbitration in a fair and equal manner, he was not necessarily expected to “….know nor to conduct his hearings as if he knows the minute and intricate details of trial proceedings, in Rules of Civil Procedure and the rules of evidence. He is not held up to that standard nor should he be.” (par 67, p 20).

Regardless, this is good news, since most PC clients choose PC as an Alternative rather than Additional Dispute Resolution Process!  Despite these comments, it cannot be emphasized  enough that arbitration in any context requires significant training.

It certainly begs the question of whether a PC who is a lawyer would be held to a higher procedural standard.

Conclusion:

Taking into account the consumers’ unqualified rights, the hybrid role of the PC and the specific provisions in the parties’ PC Agreement, Justice Audet determined that the appellant’s rights had not been violated.

It is refreshing to read a decision which addresses the legal grounds put forward by the appellant, in the unique context of the Parenting Coordination (PC) process.

by, Cathryn Paul

Why should we bring the voice of the child into parenting mediation? Separation and divorce affect not just the husband and wife, but also alter life for all children of the marriage, irrevocably.

First, children have a right to be heard in processes affecting them, in a manner consistent with their age and maturity.  This is set out in the United Nations Convention on the Rights of the Child, as well as Katelynn’s Principle (Ontario Bill 57).  Custody and access issues directly affect children, and decisions made must take into account their views.

Second, bringing a child’s voice into mediation can help inform the parents, and help them move past impasse.  Parents will often hold different beliefs as to the children’s views and preferences.  Children generally tell parents what they think the parents want to hear to please them and avoid conflict.  If a child tells the mother that she wants to live with her, and the father that she wants to live with him, the parents may become locked in a pitched battle in the name of the child.  However, if a child can work out her feelings with her own advocate, the parents will hear a unified message and be in a better place to come to agreement.

There are different ways to bring a child’s voice into mediation.  In many, low-conflict families, the parents have discussions with the mediator, and are in agreement as to what the children have expressed to them.  No further involvement by outside professionals is needed.

However, where the parents do not agree, an expert can be engaged.  The model that I often follow is to engage an experienced social worker to meet with the children several times.  The expert would then attend a mediation session and share the children’s views and preferences with the parents. If the expert believes that more work is needed, or that the views and preferences are not clear, we would talk about next steps.  The expert could also assist the parties in formulating schedules that would work with the children’s views and preferences, as well as the parents’ needs.

I generally do not meet with the children as a mediator, as there is a disconnect between being a child’s advocate and being a neutral assisting the parents.

A child’s voice can only be brought into the mediation when both parents agree.  After all, mediation is a voluntary process.  There is no power to compel this step.

Even if both parents agree, a mediator should only move forward with a child consultant if the parents are both willing to consider the child’s voice.  It is not helpful for a child to go through a process of working with a neutral, only to have his or her views ignored or discounted.  The mediator must screen for this before arranging for an expert.

Cost may be an issue, as engaging a children’s consultant involves additional outlay for the family.  However, this step may also shorten the dispute, and save future litigation costs.

In cases where the children are too young to express views and preferences, a mediator could help parents consider the children’s best interests and move past impasse by bringing in a parent educator who would talk with the parents about children’s development and important concepts for separating parents.

Another option would be for an expert to visit the young child at each parent’s home, and observe his or her interactions with the parents, to be able to provide a recommendation as to how the parents can best meet the child’s needs.

Some parents express concerns that the children will be traumatized by meeting with someone to share their views about the separation.  However, if this is done properly, it can be of great benefit to the children, as well as to the parents.  The children did not choose the separation, and often are concerned about the outcome.

Not only does bringing the children’s voice or needs into a mediation directly serve the most vulnerable people in the separation, it also broadens the parties’ options and refocuses them in a manner that may lead to resolution, and ultimately a better outcome for the family.

Cathryn Paul, family law lawyer, family mediator, and family arbitrator, is a member of the Family Dispute Resolution Institute of Ontario (FDRIO).

by, Brahm Siegel

A decision released on February 2, 2018 by the Honourable Mr. Justice Gray of the Ontario Superior Court of Justice merits close scrutiny and caution for those of us who toil in the vineyards of arbitral discord.

As part of their final settlement in 2016, Magdalena and Cezary Lopatowski agreed to retain one of three specifically-named individuals as parenting coordinator for two years.  They incorporated this clause in their final Order, made by Justice Fitzpatrick, along with clauses confirming they would pay equally for the PC, complete an intake form within sixty days and that any unresolved issue would be decided pursuant to a “secondary arbitration” under the Family Law Act.

Two unexpected things then occurred.  First, the individual then selected to be their PC informed that she did not provide parenting coordination services.  Second, Ms. Lopatowski then refused to move forward with either of the other two names.  This prompted Mr. Lopatowski to move for an order appointing one of the other two PCs, a request granted by Mr. Justice Gibson in June 2017 who ordered the parties to sign a PC agreement with Shely Polak and pay her retainer “forthwith”.

When Ms. Lopatowski refused to comply, Mr. Lopatowski moved for contempt.  He argued that as the PC process had been clearly agreed to, with counsel, and incorporated into the Fitzpatrick Order, it was right to have been properly enforced by Justice Gibson.  Ms. Lopatowski’s lawyer, citing, among other cases, Nightingale v. Horowitz[2], argued the Gibson Order should be set aside as unenforceable because no arbitration agreement was ever signed.

Justice Gray ruled that Ms. Lopatowski was in the wrong court and that any appeal or challenge to either the first Order or Justice Gibson’s should be raised in the Court of Appeal.  HeHe added, in addition, that nothing about the Fitzpatrick Order or Gibson Order was unenforceable.[3]

Well, about that….

Discussion

A secondary arbitration is defined in section 59.7(2) of the FLA:

“secondary arbitration” means a family arbitration that is conducted in accordance with a separation agreement, a court order or a family arbitration award that provides for the arbitration of possible future disputes relating to the ongoing management or implementation of the agreement, order or award.  2006, c. 1, s. 5 (10).

Pursuant to section 59.6(1) of the FLA, an arbitral award is only enforceable if:

(a) the family arbitration agreement under which the award is made is made in writing and complies with any regulations made under the Arbitration Act, 1991;

(b) each of the parties to the agreement receives independent legal advice before making the agreement;

(c) the requirements of section 38 of the Arbitration Act, 1991 are met (formal requirements, writing, reasons, delivery to parties); and

(d) the arbitrator complies with any regulations made under the Arbitration Act, 1991.  2006, c. 1, s. 5 (10).

The above sections make it clear awards made pursuant to arbitrations and secondary arbitrations require a family arbitration agreement which must include rights of appeal and the arbitrator’s certificate confirming the parties have been screened for domestic violence.  The only differences between the two are set out in section 59.7(1) of the FLA:

59.7 (1) The following special rules apply to a secondary arbitration and to an award made as the result of a secondary arbitration:

1. Despite section 59.4, the award is not unenforceable for the sole reason that the separation agreement was entered into or the court order or earlier award was made before the dispute to be arbitrated in the secondary arbitration had arisen.
2. Despite clause 59.6 (1) (b), it is not necessary for the parties to receive independent legal advice before participating in the secondary arbitration.
3. Despite clause 59.6 (1) (c), the requirements of section 38 of the Arbitration Act, 1991need not be met.  2006, c. 1, s. 5 (10).

These points were all canvassed thoroughly by Justice Nelson in Horowitz. In that case, despite signing Minutes agreeing to participate in mediation-arbitration with Stephen Grant, the wife later resiled, refusing to sign the arbitration agreement.  The husband’s motion seeking enforcement of said Minutes failed on the grounds that in order to constitute a valid arbitration, a family arbitration agreement needs to be signed, complete with rights of appeal, domestic violence screening, and, in light of the fact it was not a secondary arbitration, independent legal advice.[4]

In Lopatowski however, Justice Gray muddies the water by finding that neither the Fitzpatrick Order nor the Gibson Order are unenforceable.  In support, he notes the wife did not complain about the draft parenting agreement when she appeared before Justice Gibson (only the cost of proceeding via PC), she had competent counsel at the time she entered into the Consent, and her actions were more consistent with what she now regarded as a “bad deal” – all of which were inconsistent with principles of good faith and contractual performance.[5]

While Justice Gray’s points are all well taken and one can understand the court’s frustration when a litigant fails to comply with a court order as the wife did here, the correct statement of law is set out in Horowitz: Minutes of Settlement do not constitute an arbitration agreement.[6]  The Regulation to the Arbitration Act, proclaimed in 2007, is clear that every secondary arbitration agreement[7] shall contain the following provisions:

1. The arbitration will be conducted in accordance with, (choose either i or ii)
2. the law of Ontario, and the law of Canada as it applies in Ontario, or
3. the law of ……………………. (name other Canadian jurisdiction), and the law of Canada as it applies in that jurisdiction.
4. Any award may be appealed as follows: (choose either i or ii)
5. A party may appeal the award in accordance with subsection 45 (1) of the Arbitration Act, 1991.
6. A party may appeal the award on, (choose one or more of the following)
7. a question of law,
8. a question of fact, or
9. a question of mixed fact and law.
10. The arbitrator for this arbitration is ……………………. (name of arbitrator).
11. I, ……………………. (print name of arbitrator), confirm the following matters:
12. I will treat the parties equally and fairly in the arbitration, as subsection 19 (1) of the Arbitration Act, 1991requires.
13. I have received the appropriate training approved by the Attorney General.

iii. The parties were separately screened for power imbalances and domestic violence and I have considered the results of the screening and will do so throughout the arbitration, if I conduct one.

1. The parties were separately screened for power imbalances and domestic violence by someone other than me and I have considered his or her report on the results of the screening and will do so throughout the arbitration.

…………………………………………..………….

(Signature of arbitrator)[8]

With the greatest of respect to Justice Gray, without such an agreement no arbitration award is enforceable.  Relying on other caselaw, as he did,  involving private parties to a contract is not analogous reasoning because the Arbitration Act and Family Law Act have strict formalities for which there are no exceptions.  As Nelson J. correctly points out in Horowitz, “the legislature has chosen to make certain formal requirements necessary in order to have a legal and binding arbitration.”[9]

I agree and would point to the following three sections of the Arbitration Act which make clear that without a family arbitration agreement or secondary arbitration agreement signed by the parties and counsel there can be no valid or enforceable award:

• section 6.2 enables the court to intervene to ensure that arbitrations are conducted “in accordance with arbitration agreements”;
• section 3 contains specific clauses which may not be excluded from family arbitration agreements; and
• section 2.2(1) confirms that any decision made by a third person in a process not conducted “exclusively” in accordance with Ontario law is not a family arbitration award and has no legal effect.

Thus, assuming Ms. Lopatowski continues to not cooperate with using a PC, any award Ms. Polak (or any other arbitrator) makes without the benefit of a secondary arbitration agreement being signed with the above-noted clauses is completelyunenforceable.[10]

Conclusion

This case highlights the need for counsel to be crystal-clear when signing Minutes which contain intentions to arbitrate to include clauses confirming that in the event, for whatever reason, the family arbitration agreement or secondary agreement is not executed, the parties shall only have recourse to court and not to any alternative dispute resolution process.

Prior to the amendments to the Arbitration Act and Family Law Act in 2007 there were a host of cases where courts had the authority – and in some cases did – find  a validly constituted arbitration based on an “agreement to agree”[11].  There can be no doubt however, that since the passing of the amendments to the legislation in 2007 those cases cannot and should not be relied on.   The “new” Arbitration Act (if you can call it that after 10 years), with its emphasis on domestic violence screening requiring a determination of whether or not parties are suitable for the process whether or not they are represented by counsel, mandatory independent legal advice for fresh cases, appeal provisions that preclude being able to completely opt out of all rights of appeal, and clear guidelines as to what and what is not enforceable, all mandate a fundamentally different approach from what was in place before 2007.

And so, this is why I say that to the extent that Gray J.’s comments in Lopatowski seem to endorse the tone and spirit of those old cases, readers and practitioners need to approach this case with caution.  My advice: stick with Horowitz, and stay away from any arbitration without a validly constituted arbitration agreement.

Submitted by:

Brahm D. Siegel, B.A., LL.B., C.S., Acc. F.M., FDRP Arb.

Lawyer, Mediator, Arbitrator
Certified Specialist in Family Law (LSO)
Accredited Family Mediator (OAFM)
Certified Specialist in Arbitration (FDRIO)

[1] 2018 ONSC 824 (“Lopatowski”).

[2] 2017 ONSC 2168 (“Horowitz”).

[3] Lopatowski, at 45.

[4] In coming to the conclusion he did, Justice Nelson was aided by colleague Justice McGee, who, in an earlier step in the case, noted that if the med-arb agreement had not been signed by a specific date, the case would be placed on the court trial sittings.

[5] Lopatowski, at 60.

[6] Horowitz, at 53.

[7] Provided it is made on or after April 30, 2008.

[8] S. 2(2)(b), Arbitration Act, Regulation 134/07.

[9] Horowitz, at 45

[10] I can hear some readers asking why didn’t Justice Gray simply resort to section 6.1 of the Arbitration Act which states no court shall intervene in an arbitration except to “assist the conducting of arbitrations.”  The only answer I can think of is that a judge cannot assist in the conducting of an arbitration where the arbitration is not properly constituted in the first place.

[11] See for example Kay v. Korakianitis, 2007 CanLII 29278 (ONSC); Dormer v. McJanet, 2006 CanLII 42670 (ONSC); and Owers v. Owers, 2008 CanLII 47479 (ONSC).4