by Matthew Krofchick
In this last article on the series about joint retainers, we will be looking at how using a joint retainer can be used to narrow down issues to help resolve difficult financial situations.
A common misconception that is joint retainers can only be used by parties that are acting amicably. In fact, one of the benefits of a joint retainer is that it helps parties narrow their arguments down to fact-based scenarios.
Let’s take a look at a simple example where the parties’ respective fact scenarios lead to significant monetary differences:
A Little Background
- Jack and Diane were married in 1982 in a small town in the rural heartland.
- In 1991 Diane opened a widget business of which she is the sole owner.
- Although Jack was a football star in high school, life went on and throughout their marriage Jack stayed home and cared for their kids.
- In 2013 Jack and Diane separated.
- Diane received personal benefits from her ownership of the business in the amount of $30,000 per year
- All corporate profits should be attributed to Diane.
- All of these expenses are business-related and they and any associated income tax gross-up, should therefore not be included in her income for support purposes
- The corporate profits are needed for reinvestment into the business.
In this particular example since Jack was a stay-at-home father for so many years he has no income. Hence, each dollar added to Diane’s income significantly affects the support Jack is entitled to. By conducting a review of the disputed expenses, and any related receipts, invoices, and other pertinent information a valuator can often provide clarity on which expenses would qualify as legitimate business expenses and which should be included in Diane’s income for support purposes.
Valuators can also opine on the appropriate amount of corporate profits to be included in Diane’s income, taking into consideration what amounts the business would likely need to retain in order to meet their ongoing obligations. This could include reviewing historical bank statements, discussing any major capital purchases the business may need to make, reviewing debt covenants, and comparing the business’s operations to those of its peers to determine how much cash it would need to retain to sustain their current operations.
Where the parties continue to disagree on the facts, the valuator may be tasked with preparing multiple scenarios so that both sides have access to the conclusions they may be looking for. This provides them with the full scope of information and the impact of each of their respective fact scenarios before entering into negotiations.
In the normal course of litigation each party’s valuator would prepare their respective reports, each of which could be critiqued by the opposing valuator (perhaps numerous times) with each treating these disputed issues differently.
If, on the other hand, the parties had agreed to a joint retainer there would be no need for competing reports. When a single valuator is retained we eliminate any arguments about methodology and credibility; and as discussed in earlier articles in this series, the cost savings of doing so can be substantial as a result.
Consider, for example, what could happen when two parties choose to retain their own competing experts. They may each be provided with what appears to be two wildly different conclusions but it is often the case that appearances can be deceiving, because once taxes and equalization are considered the gap between their positions closes significantly. Moreover, once the cost of these competing reports and any potential litigation are factored in they may come out of the process having spent a small fortune with little or no benefit to show for it.
So, the question for your case becomes: is it worth each party retaining their own expert as opposed to a jointly retained one?
Although not every case can be done with a joint retainer, the notion should be explored before being written off as an unworkable solution since the potential benefits can be significant.
Dr. Rebecca Bromwich of Carleton’s Department of Law and Legal Studies and FDRIO Board member, has received a $45,000 research grant from the Law Foundation of Ontario’s Access to Justice Fund to take a closer look at U.S. apps that help separating parents manage child custody and child access. Dr. Bromwich is also the Director of the Graduate Diploma in Conflict Resolution program at Ottawa’s Carleton University.
In Ontario, judges in Family Courts have started to order parties to use privately operated, for-profit, U.S.-based apps to manage their conflicts concerning custody and access. This raises a number of legal issues, says Rebecca, observing that child custody and access apps are an unregulated space affecting minors in Canada.
There a quite a few parenting apps available: parenting apps that assign household chores to children, to teach them responsibility; cloud-based baby monitors; family organizers, shared calendars, and task list; nursing trackers; apps that tell you the whereabouts of your children; and even apps that keep toddlers busy in waiting rooms when no other entertainment is available.
“How are these apps being used? Are they being used as intended, or are parents using them for other things, too? Are there features additional features that parents might find useful? Do these apps capture correct legal information for our Ontario courts? How do they affect conflict resolution between spouses, or partners? And, how are these parenting apps affecting the best interests of the children?” asks Dr. Bromwich.
She says she will take a multi-constituent approach to her research, meaning consultation with practitioners including family lawyers, family mediators, family therapists as well as judges (to the extent possible), consulting the apps developers themselves, and parents already using these apps.
A special area of focus for her research on parenting apps will be cyber security, specifically the collection, storage, and access of private information.
“Hacking and privacy breaches are in the media every day. So, cyber security is a huge issue for these parenting apps,” says Rebecca.
There is now documented evidence that Amazon’s Alexa and Google Home apps, both home assistants that use artificial intelligence (AI), can be used by spouses, and third parties, for surveillance as well as for malfeasance, particularly domestic violence. The New York Times published an article titled Thermostats, Locks and Lights: Digital Tools of Domestic Abuse on June 23, 2018.
For example, these apps work with shared calendars; supposing that the calendar containing pick-up and drop-off times gets hacked by a third party and who uses that information to compromise or harm a child? Or the apps can somehow be linked to cameras, to spy on vulnerable children. Or if the apps capture the child’s medical information (the child is epileptic, diabetic, or has severe allergies, etc.), that information could also be used to compromise or harm a child.
This law and society research is linked to a collaboration with Carleton’s software engineers to develop a non-profit application that could benefit Ontarians.
“We have a mixed team of Law and Legal studies students who are finding out what people need and what’s going wrong,” she explains.
“Our findings will be made publicly available. At the same time, we are working with software engineering students who are looking at the parameters of possible not-for-profit, Ontario-based technical solutions.”
Bromwich says the results of the study should be available by summer 2019.
by Jana Schilder as appeared in The Lawyer’s Daily on June 4th, 2018
“There has been a paradigm shift in family law, away from the traditional adversarial role of solving family law disputes,” Justice Gloria Epstein, a judge of the Court of Appeal for Ontario, said in her keynote address to more than 120 attendees of the second bi-annual Unconference, held May 3, 2018, at the Centre for Social Innovation and organized by the Family Dispute Resolution Institute of Ontario (FDRIO).
“In the last century, no one thought about ADR [Alternative Dispute Resolution]. Lawyers had but one tool; a hammer, and every problem they had resembled a nail. Separation and divorce were seen as issues that could only be resolved by the courts. Mercifully, that is no longer the case,” she said.
Justice Epstein explained that today, only about one per cent of divorce cases end up in court and about three per cent of all family law cases go to trial. Based on her more than 25 years of experience in family law, and her entire legal career of 40 years, she expressed the view that many of even that three percent may not need to go to trial.
“In a family law trial, often even the ‘winning’ party is worse off, financially and otherwise. The family is certainly worse off,” said Justice Epstein.
“It took us a while to realize that the way to solve the vast amount of matrimonial disputes is through ADR. FDRIO members have helped us move along that path,” she said.
Justice Epstein pointed out that the trend away from court-based adjudication is affecting other areas of law as well, not just family law. But in her view, ADR is particularly well suited to family law for a number of reasons.
“At its core, a family is not about law. A normal family is about relationships — emotional, physical, and financial. Family members focus on how they feel, what they’re going to do, where they are going to do it, and how they are going to pay for it,” she told the Unconference audience.
“Family members don’t normally engage in legal discussions, unless you are part of my family — two of my three children are lawyers,” she quipped.
“So, it follows that the solution to the problems of a family lies primarily in bringing a ‘new order’ to these relationships. Sure, there is a legal framework that informs this new order but the focus is on re-structuring interpersonal relationships of a family,” explained Justice Epstein.
Mediators, arbitrators, parenting coordinators, financial consultants, and divorce coaches are well-suited to helping a family re-define its new relationships, she noted.
Unlike commercial litigation, family law cases are not funded by a corporation. Every dollar spent on family litigation is after-tax money. Every day, as legal costs climb, the financial resources available to the family diminish.
“Think about it, by the time litigants get to me, they have already spent a fortune, sometimes a large fortune,” she told the audience.
“I personally cringe at the idea that the people in front of me must write a cheque for any of the amounts I order for costs at the conclusion of family cases. But legal costs are only part of the financial impact,” said Justice Epstein. Other costs include time off work, travel costs to and from court, babysitting costs. And, of course, at the end of the separation and divorce process, having to finance two households instead of one.
Then there is another type of cost — a longer term cost — to the family’s relationships.
“In a family law hearing, much ‘dirty laundry’ is aired. Nasty things are said in open court by people about whom they claim they have once loved,” she explained.
And then a judge, who only has a superficial understanding of the dynamic of the particular family, has to make orders about such important things as which parent the children will reside with, who will make the major decisions affecting their lives, whether the matrimonial home will be sold, and how the financial resources will be shared.
And frequently the most contentious part of any separation agreement is something seemingly simple such as pick-up and drop-off of the children. It is contentious because the person burdened with the most demanding transportation obligations frequently feels taken advantage of.
“All these issues are important to the parties and they need people like you, mediators, arbitrators, and parenting coordinators, to help them settle their matter,” she said.
While you are able to legally sever your physical and financial relationships with your spouse, you will be a parent to your children, forever. Down the road, there will be graduations, weddings, and grandchildren. People need to make a choice: those events can be stressful or joyful. The determining factor in this may well be how the separation is handled. This is why mediation is so well-suited to family law because it helps preserve those important family relationships.
Justice Epstein told a story of how she was judicially mediating an acrimonious and long-standing dispute between a husband and wife. While the couple’s children were now adults, the parents still argued over the finances. While with the parties in the courthouse hallway, Justice Epstein had a chance encounter with her ex-husband, who was counsel in another matter. It was clear he had a terrible cold. Justice Epstein dashed to her office for cold medication and a glass of water and they chatted amiably about her ex’s upcoming trip with his spouse.
When she returned to the couple, she explained what had just happened.
“And I told them, ‘When I get through with you, you’ll be on hugging terms with your ex, too’,” she said. The case settled.
Jana Schilder is co-founder of The Legal A Team, a marketing, public relations and social media agency for lawyers and law firms. She also wrote the book on public relations for lawyers, available at Lexis Practice Advisor (LPA).
Family Dispute Resolution Institute of Ontario (FDRIO) and Family Mediation Canada (FMC) ink “Associate Agreement”
TORONTO, ONTARIO – May 22, 2018 – Family Mediation Canada (FMC) and the Family Dispute Resolution Institute of Ontario (FDRIO) have signed an agreement to promote jointly family mediation and other forms of family dispute resolution. Each organization will be an “associate” of the other.
Family Mediation Canada has about 450 members from all across Canada. FDRIO has about 200 members in Ontario.
“FMC and FDRIO are a great fit. We complement each other and we advocate for the same things. Since we both promote family mediation rather than the court-based divorce process, it made sense to join efforts to promote benefits of mediation,” says Lorne Wolfson, chair of FDRIO and a family law lawyer at Torkin Manes LLP.
“FMC and FDRIO both share the same goals: to support those in alternate dispute resolution fields to assist their clients in settling family law disputes outside of traditional litigation. This saves time, money and emotional resources, but most importantly, reduces conflict between parents which puts the emotional well-being of children first,” says Tamara Bodnaruk-Wide, president of FMC and director of AXIS Family Mediation, which is the court connected mediation service at 7 family courts in Ontario.
Highlights of the associate agreement include:
- Each organization will have a member on the other’s Board of Directors.
- FMC and FDRIO will co-sponsor lobbying efforts regarding legislation and the expansion and funding of mediation and other forms of family dispute resolution.
- Co-sponsoring of seminars and training programs, where feasible
- Coordination of communication and cross-promotion of relevant initiatives and programs.
There are many synergies between the two organizations. In addition to traditional certification in both Family Relations and Comprehensive family mediation, FMC offers its members training in four other highly specialized areas including: Elder Mediation; International Custody Mediation; Aboriginal Community Mediation; and Child Protection. FDRIO offers its members Ontario’s only professional certification in the growing field of Parenting Coordination as well as professional family mediation and arbitration designations.
When a couple divorces, going to court is rarely the best option. Alternative dispute resolution methods include mediation, arbitration, and collaborative practice. While the Canadian divorce rate has remained constant at about 38% for decades, 80% of those in Family Court are self-represented, according to Lorne Sossin, Dean of Osgoode Hall Law School.
There is a dire need for Ontarians to know about mediation, arbitration and med-arb, and to know where to find these services. For example, mediation is free in every family court, offering litigants the chance to settle limited issues before the court; here is a list, by city, of mediators made available by the Ontario Ministry of the Attorney General. And the Ontario government funds and regulates subsidized mediation across the province for everyone who is not in court.
About Family Mediation Canada
Established in 1985, Family Mediation Canada is the national voice for family mediation, offering varying levels and types of internationally recognized certification. Setting standard for professional conduct and ethics, FMC helps mediators help families.
FMC helps to shape public policy through ongoing research on issues impacting family mediation. FMC consults and collaborates with Federal and Provincial Governments on mediation-related issues as well as other like-minded organizations and agencies.
FMC offers its members professional development through conferences, webinars and other continuing education, networking opportunities, peer support, newsletters, discounted brochure and professional publications and other resources. http://www.fmc.ca [website is under renovation].
About Family Dispute Resolution Institute of Ontario (FDRIO)
FDRIO is a not-for-profit designed to bring all Ontario professionals in the family dispute resolution field together for more powerful advocacy about the many benefits of resolving cases out of court.
FDRIO aims to help educate the public about the costs and benefits of each dispute resolution process available in family law cases. It seeks to help the public identify when going to court is the best option, and to provide information that will help unrepresented parties better navigate the legal system.
FDRIO offers its members: harmonized training and certification standards; progressive standards of practice for FDR Professionals; discounted entry to its conference; networking, volunteer, and marketing opportunities; free webinars; opportunity to participate in sections, committees, and the Board of directors. www.fdrio.ca
by, Triena McGuirk as appeared in The Lawyer’s Daily on April 16th, 2018
Separation and divorce, herein referred to as separation, is a human experience in a legal world. The dissolution of a union is a legal and emotional process for our clients, as they dismantle their old lives and embark upon building a new life for themselves and their child or children. Emotional harm to children through separation is an insidious form of maltreatment. It is subtle and slow, but with time and consistency the presence of adult conflict through separation can eat away at the fabric of children’s mental health, parental bonds and the healthy functioning of families as a whole.
I am of the opinion, as helping professionals we not only have the responsibility to ensure our clients are informed about the law in separation, we are also accountable to inform our clients about the longitudinal implications of adversarial conflict.
Conflict is inevitable in separation; however, it doesn’t have to be adversarial. The act of separation doesn’t cause risk of emotional harm to children and youth, it is the manner by which conflict is manifested and addressed. The emotional roller coaster that accompanies separation is a shared human experience, which impacts all persons regardless of demographics.
By acknowledging that this is an emotional (and legal) journey at the onset of separation we can create awareness for our clients about how to minimize risk of emotional harm and open pathways for our clients to separate well and access support to manage emotions, without shame or stigma.
What does emotional harm look like? Some signs of conflict that place children at risk of emotional harm:
- Speaking negatively about the other parent, other parent’s family/friends;
- Blaming the other parent for the separation;
- Arguing in the presence of the child (i.e. in person, telephone, e-mail or text. Children will seek out information);
- Sending messages through the child;
- Treating children like adults (even teenagers);
- Ignoring the other parent during the child’s events (i.e., school concerts, sporting events, extracurriculars, etc.);
- Not permitting the child to move between households with their belongings;
- Interrupting time with the other parent (i.e., calling often, planning activities of interest on the other parent’s time);
- Not permitting the child to attend family functions with the other parent (i.e., family reunions, weddings, etc.) outside the regular access schedule;
- Speaking about adult content to, or in proximity to, children (i.e., details of divorce, finances, court, conflict);
- Asking the child to keep secrets from the other parent;
- Making the child feel bad about enjoying time with the other parent, deterring child from talking about the other parent;
- Using guilt or pressure for children to choose between parents or have the same relationship with each parent;
- Child refusing to see one parent, with no clear reason as to why they do not want to; Questioning children about the other parent, or the other parent’s household. Asking children to spy;
- Asking children where they want to live.
Possible mental health and/or behavioural concerns for children and youth who have been exposed to ongoing adult conflict, and are at risk of emotional harm:
- Regression behaviours (i.e., return to co-sleeping, thumb sucking, incontinence, baby talk);
- Difficulty with transitions (this can be a challenge in separation without conflict);
- Parental alignment;
- Depression, generalized anxiety and separation anxiety;
- Increased aggression, defiance and displaced anger; Withdrawal from activities of interest;
- Quick to tear or cry;
- Disengagement from academics or reduced performance;
- Disengagement from extracurricular activities; Engagement in high risk behaviours;
- Poor problem-solving skills;
- Poor social skills/peer relationships;
- Non-suicidal self-injurious behaviours;
- Suicidal ideation;
- Drug/alcohol use/misuse;
- Eating disorders;
Considerations for parenting plans to help minimize risk of emotional harm:
- Access community or private services about co-parenting through separation;
- Mutually agreed upon codes of conduct such as, not to speak disparagingly about the other parent or allow others to do so in the presence or proximity to the child, not to send messages through the child, etc;
- Access exchanges are neither the time nor the place to discuss parenting issues;
- Determine response time for all non-urgent matters (i.e., 24 hours);
- Limits to length and frequency of non-urgent correspondence. Filter correspondence for tone (i.e., emotional vs. logical statements;
- Use of communication tools such as text, e-mail, Our Family Wizard;
- Awareness of statements that are indicative of conflict (i.e., “you always,” “my child,” “you never” insults);
- Encourage “I” statements;
- Mutual agreement regarding where access exchanges take place (i.e., police station, school, house to house);
- Communication log about the child’s care, particularly if the child is younger or has extenuating needs;
- Identify mutually agreed upon third parties for access exchanges, if needed;
- Utilize the support of a clinician versed in custody and access every few years, if unable to do so independently or as needed to review parenting plans;
- Utilize joint calendars regarding through tools such as Our Family Wizard or Google Calendars; Guidelines for parental attendance at extracurricular events, parent teacher conference, etc. (i.e., staggered entry, sit with each other, in proximity, picture with child after);
- Ensure family/friends/new partners attending child’s events can refrain from behaviours indicative of conflict;
- Children can move between homes with their belongings;
- Idiosyncrasies for exchange of the child’s items to be determined by the parents;
- Consistency in rules and discipline between households;
- Parental agreement regarding vacation, extracurricular registration, etc., prior to informing the child;
- Determine guidelines for changes to the access schedule and make up of time;
- Mother’s Day and Father’s Day with the associated parent.
Conflict is inevitable in separation; however we can create a culture of awareness that by withdrawing from adversarial exchanges, between separating parties, we can nurture the new co- parenting relationship, complement the legal process and reduce risk for emotional harm to children and youth.
Triena McGuirk is a social worker in private practice with a unique triangulation of knowledge working with children and families through CAS, the Office of the Children’s Lawyer, and education.
Visit Family Fundamental or e-mail firstname.lastname@example.org.
by FDRIO Board Member and Certified Business Valuator Matthew Krofchick
This is a continuation of the discussion we started in a previous article about using joint retainers for family law cases. In that article, I introduced the concept of a joint retainer and discussed some of its benefits and shortcomings. In this installment I’d like to discuss what we need to do to get family law professionals to adopt joint retainers as their new norm.
When confronted with any change we have a tendency to stick with what we know and have relied on in the past and joint retainers are no exception. Many family law practitioners have spent their careers litigating family law matters instead of looking into other alternative dispute resolution (“ADR”) techniques. In fact I recently spoke with a seasoned family lawyer who told me they were afraid of losing the tactical advantage of hiring their own CBV if they started entering into joint retainers.
So as we contemplate the shift to ADR we need to look at the entire process including the use of other professionals. In Collaborative Practice this is call the, ‘interdisciplinary model’ and it can produce fantastic results for clients.
So, the first step in turning a No into a Yes is to identify the key points of contention that either side (separating party/family law client/lawyer) may have with using a joint retainer. I will discuss the top reasons below and how to address each of them;
- I have never had any involvement with the business and I don’t trust my spouse to provide the CBV all the information.
This actually turns out to be an excellent reason to use a joint retainer. If there’s a fear that in the normal course of litigation disclosure will not be provided without a significant investment of time, energy, and cost then using a joint retainer allows full access to information provided by both sides.Although the thinking is counterintuitive, since the clients have a sense of ownership over the matter they tend to be more forthcoming in providing information as opposed to it being sought through a motion and a joint retainer this expedites the process.
2) My spouse does not believe a business valuation is needed. They say they know the value of their business or my spouse thinks the business is worth a fraction of what I think it’s worth.
It is essential to explain the importance of having an impartial expert opine on the value and the benefits it may have. Specifically, that as a neutral party the expert is there to provide an unbiased opinion so the value they provide is not in favour of either spouse. Secondly, a brief education on how business are valued provides the client with an understanding of why the value that they “know” it is worth is unlikely to be the same as what a CBV will come up with.
Lastly, it is just as important to explain to both spouses that without going through this exercise how does one really know the value of their business? I tend to use the example of a business with a fair market value of $100,000 where one spouse believes it’s worth $150,000 and the others spouse believes it’s worth $50,000. Clearly, both spouses cannot be right and if they are wrong (depending on the circumstances of the case) it will cost them $50,000 on the net family property statement. So the question is are they $50,000 sure they are making the right decision?
3) We can’t agree on anything. How are we going to decide on a CBV?
The lawyers of each party should recommend a CBV and provide them each with the same information about the case. Each CBV should be allowed to have questions answered and quote on the assignment. Both lawyers may want to speak to the valuators to assess their understanding of the case and see if it is a fit for their clients. Ultimately and with consent from their clients, the lawyers will select the valuator.
4) Who pays?
I actually touched on this point in my previous article but it’s certainly worth repeating. Who ends up paying what will change depending on the particular circumstances of the case. Any allocation of costs is possible from a 50-50 split to one side assuming all the costs, but how the costs of any specific matter end up being divided will depend on the product of each spouse’s ability to pay and their desire for the disclosure and confidence in the process that a valuation provides.
5) The spouses aren’t speaking to each other and can’t even be in the same room.
One of the advantages of a joint retainer is that it doesn’t require spouses to be in the same room or even on the same email chain. Flexibility is key to addressing the specific needs of the clients. Figuring out their relationship dynamic and accommodating it is key to allowing them to benefit from a joint retainer without putting them in a position that adds more tension to their separation proceedings.
From a valuator’s perspective a joint retainer may mean more time spent managing the client relationship but it also provides the CBV with the tools to potentially access more information than they could have had they only been retained by one party, and benefits both spouses usually by way of lower fees, less fighting, and a quicker turnaround time.
In the next and final part of this series I’ll discuss how a joint retainer can reduce conflict in matrimonial disputes where the parties disagree on basic fact scenarios.
by FDRIO Board Member and Certified Business Valuator Matthew Krofchick
With FDRIO’s bi-annual Unconference taking place on May 3rd, 2018, I thought I’d write an article about a different way of looking at the use of Chartered Business Valuators (“CBV”) in a family law situation in the context of FDRe-think the Future.
All too often CBVs are called in late in the process and told to base their report on a set of assumptions given to them by one of the separating parties. The CBV will then do their due diligence and ultimately write a report based on the assumptions provided to them (within reason). What often happens next is that the other party will hire a different CBV to critique the first CBV’s report, which can often lead to the first CBV being retained to provide a critique of that critique, and so on.
Needless to say, this back-and-forth could go on for quite some time and as it does it becomes very costly and hugely time-consuming, with clients often feeling as if this matter could go on indefinitely. While there may be very specific situations where this process is both necessary and unavoidable it is often an unnecessary use of both time and money.
One solution we often suggest to clients is the use of joint retainers, which are used in the Collaborative Practice model and in some mediations.
A joint retainer as the name implies is an arrangement whereby both parties in a marriage breakdown retain the same expert together, thus eliminating the need for competing reports from numerous experts. So why isn’t this the industry standard instead of the exception?
Although jointly retained, there is no obligation for the expert’s fees to be shared equally (or at all) by the parties retaining them. This is an important feature of a joint retainer because it provides a sense of ownership to both spouses where only one has the resources to pay for the valuation assignment. Regardless of how costs are shared both spouses have access to the CBV, can ask for clarification on any part of their report, and are included in all communications.
Both parties also have the opportunity to review all documents used in the preparation of the CBV’s report. This can be particularly significant to the non-owner spouse because it provides them with timely disclosure of information relevant to the valuation assignment, which although required by law can be a difficult and costly exercise in certain situations.
Will this arrangement work for everyone? The answer is unfortunately, ‘no’. In order for a joint retainer to be effective there has to be a minimum level of trust between the parties, thus ensuring that both abide by the results of the CBV’s findings. If one party has a significant power imbalance and this has not been recognized and addressed with the CBV it can sometimes lead to the perception that this individual has co-opted the CBV to view things through their lens and as a result, the other spouse may not view the CBV’s report as independent and free from bias.
On your next file where a CBV is required to complete a business valuation, income determination, or tracing analysis, consider whether both parties might be able to retain the CBV together. If the answer is no, ask what you can do to change this answer into a yes.
In Part 2 of this article we will explore how to turn a “No, this will not work into – Yes it will.”
by Michael McKiernan, as appeared in The Lawyer’s Daily on Feb. 26th, 2018.
A new professional designation for parenting co-ordinators will help bring certainty to the growing field for both consumers and practitioners, says a senior member of the group that created it.
“It was in many ways a bit of a Wild West in Ontario before,” says Hilary Linton, vice president of the Family Dispute Resolution Institute of Ontario, which began offering its new certified specialist program in parenting co-ordination in 2017.
The technique is generally used to deal with disagreements between the parties after a final parenting agreement has been reached or a court order is already in place. Even after settling some of the big-picture issues in litigation, Linton explains, disputes over smaller details such as school choices, vacation plans, after-school activities and many others can drag on for years.
Parenting co-ordinators trace their roots to certain states south of the border in the early 1990s, according to Linton, who adds that Ontario lawyers and judges began embracing the concept more than a decade ago.
Although FDRIO’s voluntary program is not a prerequisite for the acceptance of retainers in Ontario, Linton says it boosts the options for parenting co-ordinators in the province who want extra training.
“There was a lot of existing material out there, but nothing was specific to Ontario. This sets a pretty solid standard and has a community of supportive professionals behind it,” she explains.
“This is very challenging work, and it didn’t seem right to me that professionals out there doing some of the most difficult jobs in family law had the least amount of guidance to support them.”
Linton says the need for specific guidance was enhanced because the evolution of parenting co-ordination in Ontario has followed an idiosyncratic route compared with other jurisdictions.
While many U.S. states reference the process specifically in their family law legislation, Ontario law makes no mention of it.
Instead, private contracts between parents and parenting co-ordinators dictate the terms of the process.
Parenting co-ordinators in Ontario will generally try to mediate a settlement over the issues before making a binding decision via arbitration if one is required, which is in turn recognized as a form of secondary arbitration under the Family Law Act.
“The other thing we noticed was a growing amount of case law evidencing the need for education,” Linton says.
In some cases, she says, disputed decisions indicated the parenting co-ordinator had an inadequate grasp of the arbitration process, while others suggested the parents lacked understanding of the agreements they were getting into.
In the recent case of Jerova v. Benincasa, the father of a four-year-old child appealed a parenting co-ordinator’s decision to side with the mother on the issue of which elementary school their young boy should attend.
The appellant argued, among other things, that the parenting co-ordinator was biased against him and ignored evidence.
“I get the clear impression that the appellant and his counsel, during the arbitration portion of the PC process, insisted on a very strict adherence to the rules of procedure and evidence that one would expect in a court proceeding.
Unfortunately for the appellant, that is not the dispute resolution process that he agreed to engage in,” Ontario Superior Court Justice Julie Audet wrote in her decision dismissing the appeal.
“The role of this Court, in the context of this appeal, was to ensure that he was treated equally and fairly, and that he had an opportunity to present his case and to respond to the respondent’s case within the procedural framework clearly set out in the PC Agreement. I find that he did,” she wrote.
Elizabeth Hyde, a former chairwoman of the Ontario Bar Association’s ADR section and an instructor of the FDRIO program, says the legal intricacies of Ontario’s particular brand of parenting co-ordination may have contributed to the growth in demand for practitioners who are also qualified as a lawyer. Historically, she says, parenting co-ordination was conducted predominantly by social workers.
“We tend to spend a bit less time on the mediation and consensus-building phase. The last people who came to me told me they wanted a lawyer who could interpret the law and make a quick decision so that they could move on with their lives,” Hyde says.
“That’s easier for lawyers because of the greater level of comfort we have with the arbitration process.”
Linton says the individual needs of the parents in dispute will inform their choice between a parenting co-ordinator with a legal or social work background.
“Every case is different, and some people respond better to a therapeutic approach,” she says.
“When you have greater clinical issues at play, it’s going to be more valuable to have a person with experience in that area.
“The most important thing is that everyone understands what they’re getting into right from the very start,” Linton adds.
Marianne Cuhaci, a non-lawyer parenting co-ordinator with more than a decade of experience and a master’s degree in social work, warns her colleagues not to underestimate the legal knowledge required for the job.
“I don’t think one background is better than the other, but you can’t go in thinking ‘I have a lot of mental health experience, therefore, I can do it,’” she says.
“Ideally, you’ll have a multi-disciplinary approach, and there are situations where lawyers and mental health professionals work together.”
The FDRIO course devotes 30 hours of its content to training on family law issues, although lawyers seeking the designation are exempted from that portion of the program. No matter which route they take to the profession, Hyde says, parenting co-ordinators need to have built up a foundation of experience dealing with high-conflict family cases.
“I tell people they need at least five years before even thinking about parenting co-ordination. That takes people by surprise, because they think it looks easier than mediation,” she says.
“But this is not regular mediation.”
Although many of the disputes that come before parenting co-ordinators appear minor to outside observers, Hyde says the stakes frequently could not feel higher to the parties involved, who have often been fighting consistently for years.
“These are literally the most challenging situations in terms of the level of conflict,” she says.
According to Cuhaci, the emotional nature of the subject matter exposes parenting co-ordinators to an elevated level of professional and personal risk from angry parties on the wrong end of a ruling.
“The number of complaints to law societies and other regulatory bodies is becoming a big problem because of the way it interferes with our ability to work,” says Cuhaci.
She would like Ontario follow the lead of some U.S. jurisdictions, where legislation grants parenting co-ordinators some measure of immunity from actions relating to their decisions.
“We’re making decisions in a quasi-judicial role, but we don’t have any protection,” she adds.
Linton says she’s also campaigning for further recognition of the role of parenting co-ordinators in Ontario law.
“There’s a lot more that could be done in Ontario at the legislative level to support parenting co-ordinators and improve the standard for family arbitration as well,” she says, adding that Prince Edward Island and British Columbia are setting an example to other Canadian jurisdictions.
“Both have not only established standards but also oversight of some kind from government or regulatory bodies on those standards.”
Jonathan Richardson, a partner at Augustine Bater Binks LLP in Ottawa, says parenting co-ordination can be “a godsend in a high-conflict file.”
“One of the primary problems is the lack of available parenting co-ordinators or the delay when they are needed,” he says.
“An increase in specialized parenting co-ordinators can only be a good thing and will hopefully help remove some of the high-conflict family cases which remain in the court system.”
Richardson encourages family lawyers to contemplate using parenting co-ordination at an early stage in a case.
“Most files [that] will be high conflict with respect to custody and access issues will be apparent early in the proceeding,” he says.
“It would be preferable to get those cases into a system where the parties can get the assistance and adjudication they need quickly before their resources are exhausted and co-ordination is a last alternative or no longer an alternative as funds which could have been spent on co-ordination have instead been spent on lawyers in court.”
by Vinita Puri
My name is Vinita Puri. I am a proud Social Worker and Family Mediator who has been working in the social service field for nearly 20 years. I have always been passionate about social change and restorative justice processes. Growing up in a South Asian home, I revered the concept of “ahimsa” or nonviolence. Violence is any type of harm done; intentional or no intentional to Self or Others. My personal values therefore align with Social Work and ADR principles and processes.
Social Workers add great value to the field of ADR (especially FDR). The training and skills I have acquired in the areas of bio-psychosocial assessment; interpersonal communication; psycho-educational treatment and therapeutic alliance building have helped me to foster healthier communication and dispute resolution between parties. The goal of any ADR process is to prevent or reduce further harm to self and others. This requires each party to reflect and evaluate on the nature of the conflict and the psychological manifestation of beliefs and thoughts which evoke emotional reactions and influence the way in which conflict arises. Education is fundamental to any Social Work practice. As the parties develop these skills, they gain confidence and motivation to apply them. Hence, these individuals will likely have productive and effective mediation if they developed conflict resolution skills beforehand.
Social Work practice provides a wide range of psychotherapy and psycho-education techniques to challenge cognitive distortions and wrongful appraisals of reality. Overtime, these individuals may be able to gain insight and awareness into their emotional responses and behavioural patterns. Social work within the mediation process can motivate clients to increase their awareness of how they may contribute to their relationship problems. This involves utilizing a strengths based, anti-oppressive approach to counseling which involves non-judgmental, neutral and empathetic support. Social workers see themselves as “helpers” not “experts”. In fact, a core value of Social Work is self-determination. In other words, individuals are the “experts” of their own lives and we are here to provide unconditional positive regard to empower individuals to creatively problem solve and develop resources to resolve their own problems.
In my clinical experience, I have found that victims and perpetrators of violence (physical, emotional, spiritual, social, economic, etc.) often get stuck in cognitive distortions and unhelpful thought patterns. It is the narratives that they have captured through emotional memory and the processing of their past traumas which influence the ways in which they appraise situations and ultimately how they behave. As a result, they continue to experience similar conflict and relationship discord and get “stuck”. Successfully addressing complex psycho-social problems can involve evidence based treatment protocols such as Eye Movement Desensitization Reprocessing (EMDR) and Dialectical Behavioural Therapy (DBT) to facilitate the processing of unresolved emotional traumas. Healing needs to occur within individuals so that they can relate to others in healthier ways. Individuals who do not take the time to reflect on their past and heal from old wounds get stuck in cognitive distortion patterns and continue to use infective coping strategies (e.g. substance use, self-harm, etc.) which can only serve to exacerbate problems.
In sum, I feel honoured and privileged to be a Social Worker who is also an ADR professional. I truly believe conflict is inevitable and that most people want to prevent harm to themselves and others. Despite this, many individuals find themselves chronically engaging in high conflict relationships. There are a range of biological, psychological and sociological risk factors as well as protective factors that can influence the ways in which individuals appraise the problems the face and the solutions that they are able to generate. As a Social Worker, I use comprehensive clinical bio-psychosocial assessment to explore and identify the root causes of conflict and distress that are causing harm to the individual and his/her relationships. With this awareness, I can work towards motivating clients to learn skills for effective communication and self-regulation. Developing these skills is essential to assuring the mediation process is successful.
As the Clinical Director of Relationship Boutique Inc., I have the opportunity to develop programs and services that integrate these values. The values of Social Work and ADR align with my personal and spiritual values of “ahimsa” or non-violence. For more information, please visit relationshipboutique.com
by, Abi Ajibolade RP
Executive Director, The Redwood…For Women and Children Fleeing Abuse
The Redwood provides programs and services to support women and children to live and thrive without abuse, homelessness and poverty. We work for social change through learning, collaboration and advocacy, and envision a socially just world where systems of oppression are eliminated and women and children are free from all forms of violence.
As advocates working with women to end GBV, we hold deeply our values of putting women and children at the centre of all that we are and do. We must continually examine power as it impacts decision-making within the organization and ensure that we embody our opposition to oppression and marginalization that women may encounter in a complex and often punitive system. We are first and foremost dedicated to our commitment to women-centered and trauma informed practice which will work toward reducing harm and supporting healing and self-determination.
One tool that we use to ensure that we work in partnership with the woman while optimizing her safety, is our SARM (Safety Assessment and Risk Management) planning tool. We are constantly introducing new ways that we can implement our SARM procedures to enable empowerment of the client while addressing her particular safety needs and hurdles while interacting with the greater system.
According to Statistic Canada, only 38% of women experiencing abuse connect with social services, such as crisis lines, shelter, community centres, counsellors, women’s centres and support groups. Less than one-third of women report their experiences of intimate partner violence to the police. Based on the latest statistics from the MCSS, last year approximately 51,700 crisis calls were received on crisis lines for women, in Ontario alone.
In reflection of the presenting concerns that lead many women to limit their interaction with the criminal justice and child protective services, we have recently been in a stage of re-assessing our SARM and focus on advocacy to incorporate alternative approaches to women’s involvement with these systems. A major factor that has propelled us to change our strategy is hearing women’s wariness over the years, to disclose their abuse experiences to shelters, the legal system, law enforcement or other institutions and organizations. And these statistics reflect this. There is an underlying sentiment of having little confidence and trust in the system, particularly from racialized and indigenous women. Women hesitate to involve the police and are reluctant to go through the traditional court process because it would reinforce negative stereotypes, and only add to existing high incarceration rates. Distrust in the legal process is also contributed to by a history of unjust apprehension of children by child protective services. These fears are very often the reasons why some women feel like they have no other choice but to remain in an abusive relationship.
One of the discussions we have had over the recent years has been the favoring of alternative routes to the court system such as mediation. There are a multitude of reasons why a survivor of GBV may choose to access such an alternative in cases of abuse and child protection including the great stress placed on both parties that may exacerbate the abuser’s risk for re-victimization of the woman.
However, there appears to be a consensus within the Violence Against Women sector that mediation is not suited for domestic violence situations. The reasons which make mediation contentious are important issues. However, we need to also consider the larger context by asking ourselves, “do traditional court procedures provide any greater protection?” The answer is no.
Mediation may actually be better, or no worse than the alternatives. When we take a look at the main critiques of mediation in terms of where it falls short in protecting the interest of the vulnerable, it becomes apparent that many of these reasons also stand true for the courts system; firstly, the lack of understanding regarding the dynamics of intimate partner violence and secondly, the power imbalances between the parties allowing the abuser to continue to go on to intimidate and manipulate. In fact, it can be argued that professionals that choose to mediate cases involving domestic violence have extensive education in the dynamics and intricacies present when working with survivors of GBV and their abusers, which is not expected of professionals in the court system. Furthermore, there is less likelihood that the abuser can exercise power imbalance apparent in many cases including where the abuser can employ high-level attorneys that are inaccessible to the woman and are used to intimidate the survivor or orchestrate a scene where she is discredited as unstable, unfit or deceitful. This can be wholly avoided when the route of mediation is available to the woman.
At the heart of the matter is the importance of practicing from a trauma informed client-centred approach; one, which acknowledges a woman’s life experiences, and respects and supports their right to choose the direction of their own lives. Automatically excluding victims of violence from mediation falsely assumes that all victims are not capable of promoting their interests and those of their children. Such an assumption can be disempowering in and of itself. Ultimately, this stands at the centre of the issue, so we need to ask ourselves, “who should be making such decisions when we rule out mediation?”
A published in The Lawyer’s Daily, on March 5, 2018
by: Lorne Wolfson
Many family law cases have parallel criminal proceedings. These proceedings may arise from events related to the family law case (domestic assaults, harassment, breach of court orders, etc.) or be totally unrelated. As a result of the adoption of a “zero tolerance” approach by the criminal justice system to allegations of domestic abuse, increasing numbers of family law cases involve criminal charges against one or both of the spouses.
The presence of criminal charges will usually impede the resolution of the family law issues. The terms of the accused’s bail may forbid communication between the spouses or attendance at the other spouse’s residence, thereby complicating the accused’s ability to exercise access. Criminal counsel may give advice that is counterproductive to family law
counsel’s settlement efforts. The criminal justice system moves very slowly, as a result of which these complicating factors can persist for many months, if not years.
At the outset, the complainant spouse often sees the criminal charges as something that will vindicate her position and assist her in the family law case. As time goes on, however, many complainants come to see them as another source of problems and an obstacle to settlement of the family law issues. For example, a criminal record may negatively impact the accused’s ability to earn income and, as a result, to pay support.
The accused, on the other hand, usually sees the criminal proceedings as a tool of the complainant intended to wrongly punish him for alleged misdeeds, thereby fuelling his anger and resentment toward the other spouse. In many cases, both spouses eventually come to see the criminal charges as a hindrance, rather than an aid, to settlement.
Settlement-oriented family law counsel will first see to it that the accused obtains competent defence counsel and that the complainant receives whatever support she requires. He will then obtain information from the Crown attorney and defence counsel to understand the likely result of the criminal proceedings. Together with defence counsel, he will endeavour to find a resolution (withdrawal of charges, plea to a lesser offence, peace bond, etc.) that will end the criminal proceedings as soon as possible with the least damage to the family law settlement process. Where family law and defence counsel agree upon a common position, they may jointly approach the Crown to encourage his adoption of their recommendation.
Child welfare issues
High conflict custody and access cases often give rise to child welfare concerns. Depending on the nature of the complaint, the Children’s Aid Society may be obliged to notify the police who will conduct a criminal investigation. While there are no reliable statistics, anecdotal evidence suggests that the majority of child protection cases opened by child welfare authorities are closed without any formal court proceedings having been instituted. Of those, a significant number are closed without any complaint being substantiated or where the complaint is substantiated but resolved by either a formal or informal agreement that addresses the child welfare concerns.
As in the case of criminal proceedings, the presence of child welfare proceedings (formal or informal) can delay and complicate the resolution of the family law issues. Until the child welfare proceedings are resolved, it is often impossible to resolve custody and access issues even on an interim basis.
Like criminal charges, child welfare complaints can increase significantly the level of emotional conflict between the parties. From the complainant’s perspective, the other spouse cannot be trusted to care for the children without strict rules or terms of supervision. Her concerns arising from child welfare issues often result in a lack of trust of the other side regarding unrelated issues. The spouse whose conduct is under question will react with anger and outrage, since from his perspective the complaint is baseless and totally tactical. The fear that the label of “child abuser” may prevent him from enjoying a normal relationship with his children can often destroy what little goodwill remains between the parties.
While the child welfare authorities will usually not take a position with respect to the family law issues, their findings and recommendations can significantly influence the resolution of those issues. As a result, family law counsel will endeavour to develop a co-operative relationship with the child welfare authorities assigned to the case with a view to influencing the outcome of the child welfare investigation. Family law counsel that do not have experience in dealing with child welfare proceedings may wish to consider bringing in co-counsel for that purpose.
As in the case of criminal proceedings, the parties must be counselled to find a practical resolution of the child welfare concerns so that the parties may move towards a final resolution of the family law issues.
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:
- 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)
- 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)
- 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)
- 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)
- 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:
- Time-sensitivity of the matter in dispute.
- 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.
- The dynamics between the parties, including possible power imbalances
- The wishes/input of the parties and their lawyers.
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.
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.
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.
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, 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.
Well, about that….
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:
- 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.
- Despite clause 59.6 (1) (b), it is not necessary for the parties to receive independent legal advice before participating in the secondary arbitration.
- 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.
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.
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. The Regulation to the Arbitration Act, proclaimed in 2007, is clear that every secondary arbitration agreement shall contain the following provisions:
- The arbitration will be conducted in accordance with, (choose either i or ii)
- the law of Ontario, and the law of Canada as it applies in Ontario, or
- the law of ……………………. (name other Canadian jurisdiction), and the law of Canada as it applies in that jurisdiction.
- Any award may be appealed as follows: (choose either i or ii)
- A party may appeal the award in accordance with subsection 45 (1) of the Arbitration Act, 1991.
- A party may appeal the award on, (choose one or more of the following)
- a question of law,
- a question of fact, or
- a question of mixed fact and law.
- The arbitrator for this arbitration is ……………………. (name of arbitrator).
- I, ……………………. (print name of arbitrator), confirm the following matters:
- I will treat the parties equally and fairly in the arbitration, as subsection 19 (1) of the Arbitration Act, 1991requires.
- 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.
- 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)
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.”
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.
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”. 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.
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)
 2018 ONSC 824 (“Lopatowski”).
 2017 ONSC 2168 (“Horowitz”).
 Lopatowski, at 45.
 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.
 Lopatowski, at 60.
 Horowitz, at 53.
 Provided it is made on or after April 30, 2008.
 S. 2(2)(b), Arbitration Act, Regulation 134/07.
 Horowitz, at 45
 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.
 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