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
as published in The Lawyer’s Daily, February 13, 2018
By Lorne Wolfson
The breakdown of marriage is often accompanied by bankruptcy or insolvency issues. Often the marriage breakdown is a result of financial problems in the family; in some cases the causation is the reverse. Where one spouse has a business that is failing, the resulting financial and emotional pressures on the family often create overwhelming strains on the parties’ relationship. Where the family has been living beyond its means (a typical situation in many family law cases), the separation will significantly increase the financial pressures, since the resources that previously supported (or failed to support) one household now have to support two households.
In other cases, the threat of bankruptcy or actions by creditors can be used by a spouse as a bargaining chip in the family law negotiations (“settle on my terms or the creditors will take it all”), leaving the other spouse to have to assess (often with inadequate information) whether or
not the threat is genuine. Finally, there are cases where a spouse works in concert with a creditor (often a non-arm’s length individual or corporation) to utilize the creditor’s rights to trump the family law rights of the other spouse.
Bankruptcy or insolvency
Where the threat of creditors is perceived to be genuine, the parties are often faced with a dilemma: continue the fight between themselves and risk the creditors taking what is left after the battle ends or working co-operatively to find a resolution of the family law issues that minimizes the risk to the family at the hands of the creditors. In this situation, family law counsel will want to obtain as much financial disclosure as possible, both to assess the legitimacy of the risk to creditors and to advise their clients as to the available options.
Once the facts are determined, family law counsel will need to assess the potential advantages of co- operation between the parties and the risk of any “friendly agreement” subsequently being attacked by creditors as a fraudulent conveyance or preference.
For example, where the husband has creditors, the best strategy may be to settle the family law case on the basis of the husband transferring as much property as possible to the wife or to a trust for the children either as a settlement of the property issues or as a lump sum settlement of support claims. Courts are generally reluctant to set aside a transfer by the husband to the wife of the husband’s half-interest in the matrimonial home, even if it defeats claims by creditors, so long as there is a reasonable argument that it was done for legitimate family law purposes and the facts of the case can support that argument.
Contingent liabilities create special problems in the division of marital property. Where one spouse has a contingent liability at the valuation date, Ontario’s Family Law Act requires the liability to be valued, just as an asset would be valued, based on the facts reasonably known or knowable as of the relevant date.
However, in some cases (for example, potential liability as a result of an unresolved legal claim or proceeding), there is insufficient information to make an informed assessment. In those cases, family law counsel may want to consider utilizing an “if and when” sharing of the contingent liability either with or without funds being set aside or other security given for use in satisfying whatever indebtedness is ultimately determined.
Income tax concerns
One creditor whose presence can create special problems is the Canada Revenue Agency (CRA). In many family law cases, one or both spouses has significant indebtedness to CRA. In addition to all of the enforcement rights available to any creditor, CRA enjoys special enforcement rights under the Income Tax Act.
If a spouse transfers property to a non-arm’s length party for less than its fair market value at a time when the transferor has an indebtedness to CRA, s. 160 of the Income Tax Act provides that the transferee is also liable for the transferor’s tax liability up to an amount equal to the lessor of the transferor’s tax liability and the amount of the “gift” to the transferee.
Where one spouse knows or suspects that the other spouse may have failed to report income to CRA, the former may use the threat of reporting the undisclosed income to CRA as a bargaining lever. Of course, if the unreported income was earned before the valuation date, the reporting spouse will end up sharing the additional tax liability. Although the disclosure may increase the payor spouse’s income for support purposes, the additional tax payable (including interest and penalties) may nullify any benefit to the recipient spouse.
In most cases, the involvement of CRA will reduce the family’s total net worth and the income available for support. Nonetheless, some spouses will continue to threaten the use of the “CRA card” to prevent the other spouse from enjoying any actual or perceived advantage from not playing by the tax rules. In such cases, a careful assessment of the advantages or disadvantages to each spouse is often the best way to deal with this problem.
Where there are unpaid taxes, voluntary disclosure is often the best route to addressing the problems and nullifying the CRA card. Tax counsel should be consulted to advise both parties as to the available alternatives.
This is part two of a three-part series. Read part one here.
as published in The Lawyer’s Daily, February 7, 2018
by Lorne Wolfson
While most family law cases involve only two parties, there can be many other parties who may play a significant role in the settlement of the case. These can include cheerleaders, those involved in third party claims, third parties from whom disclosure is sought, creditors, the Canada Revenue Agency or the Children’s Aid Society.
Unlike other litigation, the settlement of family law cases cannot be addressed without careful consideration of the presence or absence of cheerleaders. In this context, “cheerleaders” are friends or family of either or both parties who can exert influence over the process of settlement.
I encourage clients to bring a trusted friend or relative to meetings with counsel. Often the third party can digest and record for the client what was discussed during the meeting and help the client focus on the issues and the course of action recommended by counsel. A positive cheerleader can greatly assist a client in dealing with both the emotional and legal issues. On the other hand, a negative cheerleader can inflame emotions, undermine the advice of counsel, and in other ways provide a destructive influence on the settlement process.
Where counsel suspects that negative cheerleaders are lurking in the shadows, they should be invited to a meeting with counsel during which they can be educated as to the issues and alternatives in the case and as to how they can play a positive role in the process.
Similarly, I often encourage my clients to bring positive cheerleaders to the settlement meeting or mediation. Even if the cheerleaders are not positive, it may be preferable to have them in the room than interfering with the process from afar. Where the client relies on the advice of cheerleaders (for example, a wife who relies on her father’s advice or a husband who is afraid to settle without the approval of his new partner), it may be practically impossible to reach a settlement without the cheerleaders either being in the room or readily available by telephone. Obtaining the cheerleader’s “blessing” to the proposed deal is often a critical step in reaching settlement.
Claims by or against third parties
Many family law cases involve claims by or against parties other than the spouses themselves. Typical examples include claims by or against parents (for example, was the money advanced to buy the house intended as a loan or a gift?), closely held corporations (for example, a claim for an interest via constructive trust in property owned by a corporation or to enforce minority shareholder rights) or to set aside a transfer to a non-arm’s length party as a fraudulent conveyance. These cases pose special challenges for counsel looking for a timely and cost-efficient settlement.
Whether the third party actually needs its own counsel or is simply retaining one to project an image of independence, in many cases the third party will retain its own lawyer. By doing so, the prospects of settlement become more challenging. Litigation becomes more complex, as each party is required to deliver pleadings and has rights for disclosure and questioning. Mediation, arbitration and collaborative negotiation are not available unless all of the parties and their counsel agree to adopt the same process. Settlement communications are more complex and costs can increase at an accelerated rate. Finally, many of the values of settlement (for example, to preserve a working relationship for the sake of the children) do not resonate for third parties in the same way that they may for the spouses.
The key to resolving these cases is to get the third party to appreciate and to acknowledge that his interests are aligned with one of the spouses and that he has an interest in contributing to a settlement of the issues between the spouses. Unless counsel has a co-operative relationship, this development will usually require the involvement of a neutral (a mediator or a judge at a pretrial). Generally, the more third parties, the more difficult and more costly the resolution of these cases will be.
Disclosure from third parties
Often disclosure is sought from non-arm’s length individuals and corporations who take the position that they are not obliged to produce the information or documentation sought by one of the spouses. Luckily, these problems have been minimized by the courts (at least, in Ontario) taking a very strong position in requiring third parties to provide disclosure that is reasonably necessary for the proper resolution of family law litigation. It is for this reason that many counsel will not agree to mediate or arbitrate until the disclosure sought has been produced.
In recent years, courts have recognized that disclosure should not only be relevant but also proportionate to the matters in dispute. Moreover, where there is a legitimate interest to protect, courts will impose confidentiality terms on the production of disclosure to supplement the deemed undertaking rule.
This is part one of a three-part series.
by Hilary Linton
Collaborative practice has grown out of disenchantment with the adversarial legal system’s assumption that positional bargaining necessarily protects the interest of parents and their children. Family mediation has become the go-to solution for both the public, who are seeking to avoid having to pay lawyers, and the government, which wants to reduce the cost of providing family law justice.
In many jurisdictions, mediation-arbitration is increasingly seen as a pragmatic and cost-effective dispute resolution option for those seeking both the combined benefits of an interest-based negotiation premised on self-determination, and the backup security of a reliable and fair decision- making mechanism should negotiations fail.
In some ways, med-arb, as it is commonly known, is a higher- commitment version of open mediation in the context of a court case, where the mediator may report back to the court on what happened in the mediation if a settlement is not reached. People who decide to try mediation as a way of resolving litigation may opt for open mediation when they don’t trust the other person to negotiate in good faith; they feel they need the security of reporting to the court to keep the other person honest.
There are also some fundamental similarities between med-arb and collaborative practice. In both, there is a dire consequence if the parties do not reach an agreement. The dire consequence — in the case of collaborative law, the expense of retaining new counsel, and in med-arb, the requirement to participate in an adjudication — itself is an impetus to settle.
Med-arb is wholly private. Parties enter into a contract with the mediator-arbitrator. Ideally they will choose one that meets their personal needs, as the ways in which med-arb services are delivered vary widely, especially in the family law context. Not all mediator-arbitrators are family lawyers — some, for example, are mental health and family professionals whose expertise in child matters gives them authority, while others are financial professionals. Some operate formally, others less so.
Aside from the limited requirements imposed in Ontario by the Ministry of the Attorney General in 2007, family arbitrators are free to design their mediation and arbitration components as they and the parties wish. This allows for enormous flexibility in process design, which in turn means that med-arb, in theory, offers a real opportunity for separating couples who do not find direct negotiation easy. And it can be the best process for unrepresented parties if the mediator-arbitrator is skilled at working with those without counsel, and practises in a way to ameliorate the risks inherent in this process.
What, then, are the benefits and the risks of family mediation-arbitration?
1. Parties can work with a decision-maker they trust. In a recent panel discussion at an ADRIO/FDRIO/Osgoode Professional Development program, former Ontario chief justice Warren Winkler described med-arb as a process requiring the highest degree of professional trust, and I think he is right.
Mediator-arbitrators work closely with parties in a mediation, spending time with them privately to screen for power imbalances and family violence, and to learn their respective procedural needs and also working with them separately in caucus to better understand their substantive needs. If the parties trust the mediator-arbitrator as a professional, they will be more inclined to accept the eventual decision, if one is made — even if they don’t like it.
2. Parties (and their counsel) can design the process in a way that suits their needs. If the mediation fails, they can consent to using any part of that process in the arbitration. They can decide to use agreed facts and documents, affidavits and reports in an efficient way.
The Statutory Powers and Procedures Act applies to arbitrations, which means the rules of evidence can be more flexible as is appropriate. The process is intimate and empathetic, giving parties — especially those without lawyers — the sense that they have participated in something meaningful and cost-effective.
3. Family arbitrators are generally well trained and highly experienced. They know how to make and write good decisions, and are able to focus as much time on the case and writing the decision as the parties need — in many cases making the process more time responsive than court. There are no long wait times for a court date, no paying a lawyer to sit in court waiting to be heard by the judge. When well done, this is a highly efficient and responsive process.
There are also challenges with family mediation-arbitration. Because a high level of commitment is required, it is critical that those providing the service take time to assess whether the parties and the process are in fact well suited for each other. (Under Ontario law, family arbitrators have a duty to assess whether the case is appropriate before and during the arbitration process.)
In cases where one party is afraid of the other, where one party is manipulating the process to extend their control over the other person, or where a party or parties are incapable of complying with procedural requirements or substantive decisions, a high-commitment process like mediation- arbitration is likely to fail.
When an arbitration fails, the parties are left in the worst possible situation: no progress and often no money.
Mediation-arbitration is a highly skilled process. Those seeking to work with a mediator-arbitrator — whether they have counsel or not — should ask many questions about the process and the proposed mediator-arbitrator before signing a contract.
The past year has been a tremendous one for FDRIO. We almost doubled our membership from 100 this time last year to almost 200 currently. Our mailing list has grown to over 800 names. Our cash reserves have increased more than 10-fold.
We had many notable achievements in the past year. In January we announced our standards and in March we launched our first certifications. In the past six months we have granted 50 certified family dispute resolution certifications (35 in mediation, 10 in arbitration and 5 in parent co-ordination) and we have many applications pending. We are particularly proud of our certification for parenting co-ordination. We are the first organization in North America to develop certifications for parenting co-ordinators.
Six months ago we launched monthly websites for members. To date we have conducted 10 webinars and the attendance is steadily growing. We are building a library of past webinars that will be a valuable resource for members in the future.
Over the past year we substantially updated our website and established portals where members can post information about their practices and services offered.
We are in the process of converting all members to a 365 day membership system under which all members will renew on the anniversary of their joining FDRIO rather than at the end of the calendar year.
We have developed a relationship with Family Mediation Canada, an organization that has been the premier organization for mediation across Canada for over 30 years – establishing standards, granting certifications, and advocating for family law reform. As a relatively new organization, FDRIO is honored to be associated with FMC. This joint conference is the first of many joint collaborations that we are planning.
With our friends at FMC, we are planning to launch a national journal for family dispute resolution which we hope will become a forum for new ideas in our field.
We have continued to advocate and lobby for family law reform. The panel that you heard this morning is an example of the work that we are doing to bring resources to bear on the areas of family law reform that require improvement. Together with our friends at Ryerson we continue to develop innovative proposals for change. We continue to support the improvements that the Attorney General’s Office is planning, some of which you heard about this morning.
Following on the success of last year’s sold out conference, this year we planned something much more ambitious – a two-day program with two leading keynote speakers, two panels of experts, and a full day of twelve concurrent workshops featuring the major names in family dispute resolution. The fact that this conference is sold out tells us that we are definitely on the right track in developing programs that meet the needs of our members.
For the third consecutive year we have organized a series of public events across Southern Ontario for FDRWeek including forums for trainers, programs addressing access to justice and events designed to educate the public as to the range of FDR options and how to access them.
This year we have been extremely fortunate in having the generous support of over 33 sponsors and exhibitors. In fact, we have been almost been too successful – we can barely find enough room for all of the exhibitors who wanted to be here. Please visit the exhibitors during the breaks today and learn about the exciting new ideas, services and products that they are producing for you. This level of support is testimony to the close relationships that FDRIO has been able to develop with allied professionals and service providers in the three short years of its existence. We continue to enjoy the generous support of the Law Society and TAG. For the third consecutive year the Law Society has provided us with free space, not just for this conference, but for all of FDR Week. We thank the Premier and the Attorney General for taking the time to send us their messages today. To all of our sponsors, exhibitors, and friends we say a huge “thank you”.
This is the first year in which a significant number of members of our board are stepping down, completing their terms in accordance with our by-laws. While it is difficult to see a number of our founders (like Barbara Landau, Rick Shields, and others) step down, we believe that it is for the best, since it will allow younger people to bring new ideas and fresh energy to our organization.
We have continued to seek out opportunities to collaborate with the other dispute resolution organizations. A recent example is the program on mediation/arbitration which was a joint project of FDRIO, ADRIO and Osgoode CPD. This program brought together for the first time the leading names in alternative dispute resolution from a variety of fields.
While it may be naïve, I have a dream, a dream in which all of the family dispute resolution organizations put aside their historical differences and find a path to rationalize the jumble of memberships and certifications that currently exist in our profession. I have a dream that one day soon someone who practices family mediation, arbitration, parenting co-ordination and collaborative practice can pay one membership rather than four or five to enjoy all of the benefits that our various organizations have to offer. I have a dream that one day soon all of the family dispute resolution organizations will finally work together to advance the interests of the members of our profession, to bring about needed change to the family law system, and to provide the public with access to the full range of family dispute resolution services throughout Ontario regardless of their financial resources and regardless of where in the province they reside. I encourage each of you and all of our sister organizations to work together to advance the common interests and goals of all of the members of our profession.
FDRIO has come a long way in the past three years. But there is still much more to be done. I encourage you to become a member (if you are not already one), to become active in a section, a committee, or our board, to become certified as a FDRP in your areas of practice, to help us develop and run programs like this one, to advocate for effective family law reform, and to work with us to develop our profession into something of which we all can be proud.
LAWYER’S DAILY: Dispute resolution conference highlights need to include paralegals, mediators in family law
By Amanda Jerome
(November 21, 2017, 1:47 PM EST) — Couples going through separation or dispute resolution need help from a court system that is unaffordable, clogged with trials and complicated paperwork. What is the solution?
The answer, suggested by speakers at the Family Dispute Resolution Institute of Ontario (FDRIO) Conference, seems clear — include non-lawyers in family law to help support a system that is in dire need of help.
Noel Semple, University of Windsor Faculty of Law and Justice Annemarie Bonkalo, Ontario Court of Justice
The FDRIO Conference, co-hosted by Family Mediation Canada, in Toronto from Nov. 20-21, included several speakers familiar with the intricacies of the justice system and family law. Although policy changes, expansion of the Unified Family Court and the need for simpler government forms were discussed as much needed improvements to access to justice, the constant theme was the relief non- lawyers could bring to families that need affordable and speedy resolutions.
Keynote speaker Justice David Steinberg said there’s need for improvement in the Unified Family Court system and that the government needs to determine that court’s relationship with the Superior Court of Justice in Ontario.
One of the improvements he suggested was that the associate chief justice for the Unified Family Court should be a sitting judge, who will travel to the different court sites to meet with judges, members of the bar and press for change.
“One only knows the system when one is actively with in it,” he said, adding that in this way the associate chief justice would be in a unique position to organize and educate the judges and lawyers of the Unified Family Court.
Justice Steinberg, who was one of the initial members of the bench for the first Unified Family Court in Hamilton, added that until changes to the system are made he recommends counsel advise their clients from the very start to attempt to settle their cases outside the court system.
“Cases presently take too long and it’s too costly. But even if all the changes are made in the court system, there are many other ways of resolving a case that are still available. One of those, of course, is mediation. Mediation is a way for most persons to escape the litigation process,” he said, adding that it’s the duty of counsel to impress upon their clients to settle their cases by using their heads and not their hearts.
Justice Steinberg hopes that the Unified Family Court will be expanded and believes that mediation will play a major role in the help that the family court is able to provide.
“Mediation is cheaper than going to trial. [It] is available to parties who wish to totally avoid litigation or who are in litigation and wish to leave,” he noted.
These remarks kicked off a panel discussion which included Justice Steinberg, Justice Annemarie Bonkalo of the Ontario Court of Justice and Noel Semple, an assistant professor at the University of Windsor Faculty of Law.
Justice Bonkalo discussed the research and conclusions of her report, the Family Legal Services Review, which was released in December 2016. The report includes 21 recommendations, the most controversial being to allow paralegals to provide certain types of family legal services, such as custody and simple divorces without property.
“What distresses [judges] most is the number of people who come in as self-reps. Or even one side is represented, but the other side isn’t, so the judge has to take over the role of the other side. Carefully though because you can’t step in where you shouldn’t. Duty counsel is run off his or her feet. We have students, we have pro bono, we have a number of people assisting, but there are never enough,” she said, adding that the courts are full of long lineups of people waiting to hand in paperwork, which usually turns out to be filled out incorrectly due to its complexity.
“One of the suggestions in my report was to have the government have a few experts amongst the very people who accept these forms,” she said.
“You could get that kind of help from a government employee. They know exactly what belongs on those forms. And some [employees] have told us that duty counsel aren’t experts. They make mistakes on these forms. That’s how difficult it all is,” she added.
Justice Bonkalo said she once had a judge tell her that they had 1,000 cases running at one time. This happens because there are too many people who can’t afford lawyers and the judges end up taking on more than they should.
“In both the Ontario Court of Justice and the superior court more than half of the people who appear are unrepresented. [In] 2014-2015, 57.4 per cent were unrepresented. The majority of self-reps don’t want to be unrepresented. Most are incapable of settling outside of court. And this places a huge burden on the court. Therefore, helping them settle outside the court would be of huge assistance,” she said, adding that she was sent a report in 2000 that suggested licensed paralegals could undertake uncontested divorces.
Justice Bonkalo noted that this suggestion was repeated in 2013 when the Law Commission of Ontario released a report on increasing access to justice and pointed out that paralegals already play a well-developed role in the court system. She added that law clerks, law students and mediators are also well poised to assist in family law.
“I recommended that with a specialized licence, paralegals in family law should be permitted to provide legal services in custody, access, simple child support cases, restraining orders, enforcement and simple and joint divorces without property,” she said, noting that they should not be participating in trials.
“Most self-reps cannot afford a lawyer and need help at all stages in family matters. So some help from an educated and regulated paralegal is far better than no help,” she added.
Semple, who assisted Justice Bonkalo with the Family Legal Services Review, said family law needs to go through a revolution and he believes it will come through addressing its practice model.
“A sweet spot practice model is one in which accessibility, profitability and quality coincide. It’s a way to provide services that have a high quality and professionalism that the bar consistently does deliver in Ontario,” he said.
Semple suggested that firms establish a practice model that gives the clients price certainty, deferred payment and price quality tiers. By giving clients more of a choice when it comes to payment, firms would be making their services more accessible to a wider number of people.
“What seems to work for some firms is pro-rata periodic payments. This is done in employment law where basically the firm will estimate how long it will take the matter to get to adjudication, if it does end up being adjudicated, and how many hours it would take to get there,” he said, explaining that then the firm takes the total estimated fee and divides it by the number of months it expects will be necessary to get to adjudication.
“The client pays that amount per month. And as soon as it’s settled the client pays nothing further. It’s a way to give clients price certainty by deferring some of the payment without imposing a lot of risk on the firm,” he added.
Semple also believes that firms need to adopt a vertical division of labour, delegating tasks that can be done by non-lawyers to their support networks, such as law clerks, paralegals and artificial intelligence (AI) technology. He noted that other areas of business such as banks, manufacturing companies and airlines all use this model, but it hasn’t been leveraged by law firms where the lawyer is expected to do it all.
“We did find that in the North there just aren’t many lawyers. It’s as simple as that. They [clients] go for miles and miles to find somebody who can help them. And we have huge Indigenous communities and they rely almost entirely on paralegals. There are far too many people and far too few lawyers. The difficulty is we’re looking at all this from large cities and it’s a very different picture in these tiny, tiny communities that are isolated. So it’s very difficult to say what should work for one group and what should work for the others,” noted Justice Bonkalo as the panel discussion came to a close.
Ontario Attorney General Yasir Naqvi sent a video statement to be played at the conference, assuring attendees that the government is committed to supporting change in the family justice system.
“We are planning to transform the justice system and make it more responsive to the needs of the people it serves. Our plan includes a shift to digitize services, making life easier for families trying to resolve their disputes. Last year we launched an innovative online service for parents to set up, or update, their child support payments. And starting in spring 2018, Ontarians will be able to file joint divorce applications online as well,” he said.
by Marianne Cuhaci and Hilary Linton
Unlike most separated parents who settle their disputes within a couple of years, some parents’ conflicts continue for many years. These parents keep returning to their lawyers with issues that, from a legal standpoint, might seem inconsequential, but to the parents can be critical enough to compel them to get a second mortgage to fund their battle.
Fights over vacation plans, Christmas arrangements, birthday parties, passport applications, children’s activities, pick-up and drop-off issues, or minor adjustments to the parenting schedule can result in major problems, such as outright denial of access or police involvement during a parent-to-parent transition.
It is well known by mental-health professionals and lawyers who work with such families that prolonged parental conflict is immensely harmful for children, and that parents in such situations feel overwhelmed, financially drained, hopeless and even ashamed.
Parenting co-ordination is chosen frequently by such parents. It is a dispute resolution service for high-conflict separated parents to help them resolve issues relating to the implementation of a parenting plan or court order.