RESOURCES FOR COUNSEL

CASELAW RELEVANT TO MEDIATION & PARENTING COORDINATION

A.C. v. K.C., 2023 ONSC 6017

In the context of a multi-day trial, Justice Mandhane considers the impact of a history of family violence on the child’s best interests and the court’s decisions about decision-making and parenting time, as well as on the mother’s claim for spousal support. In her Reasons, Her Honour conducts the type of analysis I would hope all family law lawyers would engage in when considering the appropriate method of dispute resolution for their clients and their cases (see my article “Balls and Strikes” or “let’s keep talking”)

Her approach, and eventual decisions, are summarised in this quote:

“[81] In my view, it is in the Child’s best interest for the Mother to have sole decision-making authority, subject to the discussion below regarding school enrolment. The Mother’s proposal that the parties use a parenting coordinator to resolve disputes (with her having final say) is not realistic since the parties do not have a track record of being able to make decisions jointly. The Father’s counterproposal that they resort to binding arbitration in the event of disagreement is outside my jurisdiction to make unless it is on consent: S.V.G. v. V.G., 2023 ONSC 3206, paras. 123-134. Both proposals risk prolonging the acrimony between the parties. Moreover, the financial imbalance between the parties weighs against making such an order. The Father makes a profitable living in finance, was represented by counsel in multiple pre-trial parenting motions, and was represented by two lawyers at trial. In contrast, the Mother is in receipt of public assistance, is not currently employed, and represented herself at trial. In my view, these factors weigh against requiring the parties to engage in expensive processes to resolve parenting disputes. This money is better spent on the Child himself.”

A.E. v. A.B., 2021 ONSC 7302

In this interesting decision, Justice Jarvis appears to order the involvement of the parenting coordinator with arbitraral powers as to major parenting decisions without the parents’ consent. Take note of the following paragraph in Schedule A to the decision:

“6. The parents shall engage a parenting coordinator as appropriate and agreed, should they reach an impasse about any single major parenting decision (not involving an issue of support), an impasse being defined as the inability to make the decision within seventy-two (72) hours of an emergent issue arising, and within thirty (30) days of a non-emergent issue arising. The costs of the parenting coordinator shall be apportioned as determined by the parenting coordinator in their sole discretion and may be enforceable as support Order, or a credit to support otherwise payable, by filing an affidavit with the Director, Family Responsibility Office.”

It is unclear whether “as appropriate and agreed” refers to the parties’ consent on the indentity of the parenting coordinator or their consent to the parenting coordination process itself.

Ali v. Obas, 2021 ONSC 3412

Motion by mother to set aside PC’s two interim awards and terminate PC service contract. Father sought to enforce the awards. This case is instructive on potential problems with involving a PC at the interim stage of a parenting case, rather that only once parenting arrangements are in place.

Axford v. Axford, 2023 ONSC 7085

A very interesting motion decision of Justice Pazaratz on a whole host of legal issues but I bring it to your attention because of the mother's request to file fresh evidence from the parties' long-time parenting coordinator for the purposes of an appeal from an arbitration award. At larger issue was father's request that the parties' boys, aged 12 and 11 (both with special needs) change schools. The arbitrator held for the father (notably, he had declined the father's request some time earlier). Mother appealed, on a wide variety of grounds, including the arbitrator's failure to obtain and consider the evidence of the children's therapist and the parenting coordinator as to whether changing schools was in the children's best interests at the time in question. After reviewing the law on fresh evidence, including in the context of considering children's best interests, His Honour permitted fresh evidence from the children's therapist, but not from the parenting coordinator, without prejudice to "a future court requesting or authorizing such evidence". Turning to the Palmer test, Justice Pazaratz held that the evidence did not "comfortably" satisfy the due diligence part of the test and second, mother had not established that the parenting coordinator's evidence would "have the same sort of significance in terms of relevance and likely impact on the result".

B.A. v. I.K., 2024 ONSC 2225

Mother brought a motion seeking (inter alia) the incorporation of the terms of a separation agreement into a final order, a finding that father had breached its various terms and requesting the imposition of financial penalties for that breach. The matter involved a PC, with the process at its early stages. The PC’s jurisdiction included apportioning costs. Ultimately, Justice Rhinelander found breaches by father of various terms of the agreement but was not prepared to impose financial penalties because at the time of the breaches, no order had issued. In other words, the breaches were not of a court order. Note the following quote from Justice Rhinelander, about options available to mother in this case once a breach of the separation agreement by father is found:

“Unlike Walton, this Agreement contains a provision that the PC can award monetary or other penalties, deemed appropriate and proportionate in the event a party performs the prohibited behaviour in the Ancillary Terms. It is clear the PC has jurisdiction to move forward with arbitration and can impose a monetary penalty. The clause specifically contemplates the PC having this authority. It is unfortunate follow-up was not done and a request for the PC to make findings the Respondent breached terms of the Agreement. Despite this motion, this may be an avenue the Applicant chooses to pursue. “

E.M.B. v. M.F.B., 2024 ONSC 162

This is an interesting decision in the penalty phase of a motion for contempt. The Honourable Madam Justice Mandhane conducts a careful and thoughtful analysis of the law of contempt in the context of a high-conflict parenting dispute but I cite her Reasons here because she then orders the parents to engage the services of a parenting coordinator  "as described by Dr Walker - Kennedy" (sic), a psychologist ordered by the court at the contempt finding stage of the motion to complete a psychological assessment on the mother. 

The case highlights the importance of using precise language, and of clarifying the jurisdiction of any professional involved with co-parents to assist in de-escalating high conflict. Dr. Walker Kennedy had actually recommended that the parents use "parenting coach". She described the role of this professional as follows:

"It is strongly recommended that [the Mother] and [the Father] retain the services of a Parenting Coach who shall be a duly qualified mental health professional with expertise in separation/divorce, child development and high conflict families. The Parenting Coach shall have two general functions:

•         To minimize the current level of conflict and help the parents enhance their co-parenting and communication skills. In this regard, the Parenting Coach will assist the parents to actively foster and facilitate the child's relationship with both parents.

•         To address the parenting concerns raised by [the Mother] to help her question the accuracy of her perceptions and assumptions in a supportive and safe environment. To provide education regarding the long term impact on why it is in the Child’s] best interests to have a stable, predictable and meaningful relationship with her father. "

Based on her decision, it appears Justice Mandhane understood Dr. Walker Kennedy to be recommending the involvement of a parenting coordinator, and she ordered such involvement with the following, further direction: "Some of the specific issues that should be addressed are information sharing, scheduling of extra activities, communication during parenting time, and dispute resolution." Justice Mandhane does not refer specifically to the PC having the ability to arbitrate any issues but her reference to "dispute resolution" may be interpreted as her having that intention. If that is what she meant, she did not address in her reasons the court's inability to delegate decision-making on parenting issues to third parties.

I also draw your attention to the last sentence at paragraph 54 of the Reasons. It refers to the father claiming the cost of the parenting coordinator through his employee benefits, with the parties splitting any outstanding amount on a 50-50 basis. Depending on your client's coverage, it may be possible to claim parenting coordination not involving arbitration through their benefits plan.

Gilmore v. Gilmore, 2023 ONSC 5333

The parties had settled all parenting issues but proceeded to a multi-day trial on support and equalization. Justice Kurz takes an interesting approach to potential, future disputes about section 7 expense:

“[89] In light of the parties’ history of conflict, I strongly suggest that they arrange a parenting coordinator who has power to make the appropriate determinations if they cannot agree on s. 7 expenses. That would be far less expensive than returning to court.”

Hutter v. Hutter, 2024 ONSC 785

In this complex matter involving a self-represented father who had made more than one attempt to take his own life, Justice Piccoli considered the idea of appointing a PC. She was of the view she had jurisdiction to do so – but did not comment on whether she believed that extended to a PC with arbitral powers. As for the potential involvement of a PC, she held as follows:

[110] In this case, in addition to not seeking the relief in the pleadings, a parenting coordinator, at this time, is only likely to lead to more expense. The Final Order is clear as it relates to decision making. There has been no material change in circumstances to warrant a change on that issue. To submit the matter to a parenting coordinator, in these circumstances, is not in the child’s best interest; it will not likely lead to a quick and cost-effective means of addressing the issues. Further, even if a parenting coordinator were ordered, it would be on the basis that the parties share the expenses: see, Ahmad v. Khalid 2016 ONSC 5595 at para. 14.

Curiously and despite her comments above, she ordered the parties to complete an intake mediation session, and expressed the hope that the parties would actually engage in mediation.

Jirova v. Benincasa, 2018 ONSC 534

Appeal by father from PC’s award about the child’s school attendance. It was dismissed. This case is often cited for Justice Audet’s helpful description of the Parenting Coordination process, as follows:

10      Parenting Coordination is one of the most recent dispute resolution models to enter the Ontario family law realm, although it has been known and used for many years in other jurisdictions1. Parenting Coordination is used exclusively to deal with parenting issues, and is only possible once a final parenting agreement or court order is in place. To confirm the PC’s authority to work with the parents outside of the adversarial process, to obtain information and to make recommendations and decisions as authorized by a parenting agreement, the parents’ consent to defer to parenting coordination is normally incorporated into a formal court order. One of the main functions of the PC is to help parents implement the parenting terms of their final agreement/court order.

11      This resolution model includes two components: the non-decision making component and the decision-making component. During the non-decision making component of the process (the mediation phase), the PC assesses the family dynamics to obtain a better understanding of the parenting issues and challenges, educates the parties about child development matters and the impact of parenting conflict on the children, coaches them regarding communication skills and parenting strategies, and mediates disputes as they arise.

12      During the decision-making portion of the process (the arbitration phase), which is triggered when resolution through mediation is not possible, the PC makes a binding decision on the issue in dispute after having provided both parents with an opportunity to be heard. During both phases of the process, the PC is generally given expanded investigative powers to assist in his or her mandate to mediate or adjudicate on the issue, such as the ability to speak with professionals involved with the family as well as the ability to interview the children, when he or she deems it necessary and in the children’s best interest to do so. Parenting Coordination is a way for parents to settle parenting disputes with cost-efficiency, procedural flexibility and expeditiousness.

Katz v. Katz, 2010 ONSC 158

Court exercises parens patriae jurisdiction to appoint a Parenting Coordinator in the children’s best interests. The PC is to function as part of an open process, and have no arbitral powers. Justice Jayne E. Hughes explains her decision as follows:

15      Accordingly, and despite the lack of consent on the part of Mr. and Mrs. Katz, I am exercising my parens patriae jurisdiction, that is, my jurisdiction to protect these children and to do what I think is in their best interests, to appoint a parenting coordinator to serve as a facilitator, with the power to make recommendations respecting the resolution of parenting disputes and to assist in implementing the parenting plan smoothly, and negotiating the separation process in the most sensitive and supportive manner possible for the children. The parenting coordinator shall facilitate the resolution of issues regarding the implementation, maintenance, and compliance with the parenting plan.

16      To be clear, the parenting coordinator shall act as a facilitator only, but with the authority to make recommendations. In the event a reasonable consensus cannot be reached, the final decision making authority shall remain with the court.

Kumurdjieva v. Cerasuolo, 2023 ONSC 6687

Here, The Honorable Madam Justice Kraft presided over a motion brought by mother to change on a temporary basis a final order addressing the parenting schedule and decision making-responsibility for a (now) 10-year-old.

I bring this decision to your attention because the mother relied (inter alia) on a report prepared by the parenting coordinator who had been involved with the family for 2 years, and ultimately resigned. In her report, the PC commented on the child's views and preferences, and made various recommendations relating to both the regular and the summer schedule. Importantly, the PC recommended a change to decision-making responsibility from joint to the mother. In the end, Her Honour was not convinced the child would suffer irreparable harm if the terms of the final order prevailed pending the hearing of the Motion to Change.

It is noteworthy that the father raised concerns about the PC report and the facts underlying it, concerns which Her Honour described as "legitimate".

I also draw to your attention to the PC's jurisdiction to write such a report, as set out in the service contract. By specific agreement, she was authorized to summarize the process, the parents' perspectives and her own observations. Her report could contain a summary of information obtained from the child or third parties, as well as her own opinions or recommendations "to the extent the PC has obtained sufficient information to provide these".

Lopatowski v. Lopatowski, 2018 ONSC 824

In connection with a consent order to appoint a Parenting Coordinator, father brought a motion for a finding of contempt, and mother sought striking of certain paragraphs in the order, including that relating to PC. Mother’s motion was dismissed and father’s motion was adjourned. Court found the operative paragraphs (relating to PC) to be enforceable and not simply an agreement to agree. See Judge’s comments, at paras. 38-41 about the court’s ability to delegate its own decision-making jurisdiction. This court of the view that order at first instance could be made because it was made on consent of the parties.

McArthur v. Le, 2023 ONSC 4897

At the conclusion of a 5-day trial, Justice Sharma orders joint decision-making. In the event of a dispute, the parents are to engage a parenting coordinator “to provide certain parenting coordination services, not including final adjudication.” (para. 63).

After quoting from S.V.G. v. V.G., Justice Sharma writes as follows:

“[116] I am satisfied that, under s. 28(1)(c) of the CLRA, this Court may order parties to attend mediation to resolve future parenting disputes after a final parenting order is made. For this reason, I have ordered parties to attend mediation in the event of a future dispute around decision-making on education, daycare and extra-curricular activities.

[117] I acknowledge that in 2015, the Ontario Court of Appeal ruled in M. v. F. 2015 ONCA 277 (CA) at para 43, that the Court cannot make an order requiring parties to attend mediation/arbitration in the absence of consent. However, M. v. F. was decided prior to the recent legislative amendments to the CLRA (and Divorce Act) which signified a significant policy shift in favour of parties participating in alternative dispute resolution. In S.V.G. v. V.G. at paras 128 to 130, Chappel J. rationalizes why s. 31 of the CLRA does not preclude the Court from ordering mediation, absent the parties’ consent, to resolve future parenting disputes after a final parenting order is made. Her reasons are compelling. I adopt and agree with the conclusion she reaches.”

McCall v. Res, 2013 ONCJ 254

In the context of mother’s motion to change, despite the father’s opposition, court orders involvement of Parenting Coordinator but without arbitral powers. The issue of the court’s jurisdiction to do so was not addressed in the reasons. Interestingly, the mediating PC is authorized to comment on the reasonableness or unreasonableness of the parties’ positions in mediation on an issue that has to be determined by the Court - and such comment (presumably in the context of open mediation) can be taken into account on the issue of costs.

Petersoo v. Petersoo, 2019 ONCA 624

 This decision from Ontario’s Court of Appeal is often cited for the court’s comments, with approval, on the important roles both mediation and arbitration play in the resolution of family law disputes. At para. 35, the court wrote as follows:

Mediation/arbitration is an important method by which family law litigants resolve their disputes. Indeed, the courts encourage parties to attempt to resolve issues cooperatively and to determine the resolution method most appropriate to their family. The mediation/arbitration process can be more informal, efficient, faster and less adversarial than judicial proceedings. These benefits are important with respect to parenting issues, which require a consideration of the best interests of children. The decision of an arbitrator, particularly in child related matters, is therefore entitled to significant deference by the courts: see Patton-Casse v. Casse, 2012, ONCA 709, 298 O.A.C. 111, at paras. 9, 11.

Predotka v. Dudek, 2023 ONSC 7025

In this trial decision, the Honorable Madam Justice Kraft confirms, at paragraph 44 (and agrees with Justice Chappel in S.V.G. v. V.G. ) "that the court cannot require parties to participate in the aspects of parenting coordination that grant the parenting coordinator authority to make final binding decisions about parenting issues." 

Referring further to Justice Chappel's decision, Justice Kraft writes: 

" The other functions of a PC, which are either clearly geared toward assisting the parties to reach agreement between themselves regarding parenting disputes, or they are functions that support the parties in attempting to resolve such disputes, were found to fall within the definition of a family dispute resolution process in section 2(1) of the Divorce Act."

Take note of paragraph 43 of this decision where Justice Kraft talks about what she believes is a "policy shift":

"[43] The new duty on parties pursuant to section 7.3 of the DA to attempt to resolve family law disputes through a family dispute resolution process where appropriate, coupled with the introduction of section 16.1(6) of the DA, reflect a policy shift that mediation can be ordered by the court regardless of consent. The comments of the Supreme Court of Canada in Colucci and the Ontario Court of Appeal in Meloche encouraging parties to resolve their Family Law disputes outside of court wherever possible support this principle."

S-L.T. v. M.L.,2023 ONSC 5551

Request for enforcement of consent order for Parenting Coordination. Definition of Parenting Coordination from Steps to Justice (para. 15). The court confirms it cannot delegate its decision-making powers. As result, it cannot make an order for Parenting Coordination unless it is a consent order (para. 16).

S.V.G. v. V.G., 2023 ONSC 3206

A lengthy, thorough, tour de force decision by Justice Chappel that includes comments on what parenting coordination is and is not, how it can benefit parents in conflict and foster children’s best interests, as well as the various and multi-faceted functions of a parenting coordinator. A primer for anyone researching law on parenting. Beginning at III on page 49, Her Honour addresses head on the following question: Can the court order parties to participate in parenting coordination services with or without an arbitration component? Following a detailed and thoughful analysis of both legislation and caselaw, Justice Chappel responds to the question as follows:

[133] To summarize then, my conclusion is that the court has jurisdiction to include in a final parenting order made under the Divorce Act a term requiring the parties to participate in parenting coordination services that include the functions set out in paragraph 117(3)(a) to (h) above, regardless of consent from all parties. However, the court cannot require parties to participate in the aspects of parenting coordination that grant the parenting coordinator authority to make final binding decisions about parenting issues. These conclusions strike a fair and reasonable balance between the desirability and importance of encouraging parties to resolve Family Law issues between them through processes and appropriate therapeutic interventions outside of court on the one hand, and the fundamental right of individuals to have access to the court system to resolve their Family Law disputes.

Sehota v. Sehota, 2012 ONSC 848

In the context of a father’s motion, this was a challenge to the admissibility as evidence of a letter proferred by the Parenting Coordinator, who was not qualified as an expert. Justice Rogers makes the following, helpful comments about the PC process as part of her decision to rule the letter inadmissible:

24      The services of parenting coordinators have become an important part of the family law system. The court values the work of such professionals for the vast potential it holds for easing many of the difficulties litigants face. In particular, the court usually sees the children being benefitted by the help of a parenting coordinator because that person can help the parents to put their children’s interests first, to understand how conflict hurts children and to cooperate in spite of their past sorrows and hurts.

25      While a relatively new service in the long history of family law, the parenting coordinators have quickly taken up the challenge of assisting parents. The various approaches to doing so have been debated and mulled over by the professionals involved in the Association of Family and Conciliation Courts (hereinafter referred to as the AFCC). Guidelines for parenting coordination were developed by this body. This court takes judicial notice of these guidelines as the court routinely hands out the summary of the guidelines from the AFCC when there is an issue of parenting coordination raised. A copy of the summary of the guidelines is attached as schedule “A” to this ruling.

26      Several important issues are noted in the guidelines.

27      It is suggested that if a parenting coordinator is not impartial, that coordinator should withdraw.

28      A further component of the guidelines is that the order for parenting coordination should be after a final order that sets out the parenting plan. This case illustrates why this is preferable. It is not the job of the parenting coordinator to decide what the plan should be but to nuance the smaller issues of an overall established plan. The parenting coordinator is not to develop the plan, but to help the parties implement a final plan from a final order or agreement.

29      The guidelines suggest that the parenting coordinator has considerable authority albeit about only minor issues. A list of the types of issues that might be addressed by a parenting coordinator is found in the Summary at xi (b). They are:

1. Minor changes or clarification of parenting time/access schedules or conditions including vacation, holidays, and temporary variation from the existing parenting plan;

2. Transitions/exchanges of the children including date, time, place, means of transportation and transporter;

3. Health care management including medical, dental, orthodontic, and vision care;

4. Child-rearing issues;

5. Psychotherapy or other mental health care including substance abuse assessment or counselling for the children;

6. Psychological testing or other assessment of the children and parents;

7. Education or daycare including school choice, tutoring, summer school, participation in special education testing and programs or other major educational decisions;

8. Enrichment and extracurricular activities including camps and jobs;

9. Religious observances and education;

10. Children’s travel and passport arrangements;

11. Clothing, equipment, and personal possessions of the children;

12. Communication between the parents about the children including telephone, fax, e-mail, notes in backpacks, etc.;

13. Communication by a parent with the children including telephone, cell phone, pager, fax, and e-mail when they are not in that parent’s care;

14. Alteration of appearance of the children including haircuts, tattoos, ear and body piercing;

15. Role of and contact with significant others and extended families;

16. Substance abuse assessment or testing for either or both parents or a child, including access to results; and

17. Parenting classes for either or both parents.

30      The parenting coordination process is to be non adversarial and to be designed to reduce anger and settle disputes efficiently. This is because these cases are usually ones of high conflict. This point relates to the suggestion above that the coordinator should withdraw if not able to be impartial.

Townsend v. Marti, 2023 ONSC 5223

A decision of Justice Kraft who appoints a PC based on the provisions of Rule 2(5) of the Family Law Rules. Note there was a previous history of the parties’ using a PC, whose term expired and was not renewed. At the time of the motion before Justice Kraft, the father was not consenting to the continued involvement of a PC.

 Walton v. Walton, 2022 ONCJ 394

On motion in this high-conflict matter, mother sought the appointment of a PC based on the terms of the parties’ separation agreement. Before the motion was argued, the parties agreed to the appointment of a specific PC, and mother requested an order compelling the father to sign the PC’s service contract, despite the fact that he objected some of its terms. Specifically, father argued that the contract provided for the expansion of the PC’s powers beyond that agreed-to in the separation agreement. By way of background, this matter involved Dr. Butkowsky as a section 30 CLRA assessor (later appointed as initial PC) and subsequently Alf Mamo as mediator of the settlement which was eventually incorporated into a separation agreement. Justice Zisman identified two of the issues before her as:

1.       Does the court have jurisdiction to appoint Ricardo Theoduloz as the PC pursuant to the separation agreement dated May 23, 2019?

2.        If so, does the court have the jurisdiction to order the father to execute the PC agreement?

Justice Zisman reviews the relevant caselaw and adopts the position, confirmed by OCA, that the court has no jurisdiction to delegate its authority to make orders about decision-making responsibility and parenting time, absent consent of the parties. She then finds that in the case before her, she could do not more than compel the father to enter into a PC service contract confirming the PC’s powers as no more than those set out in the parties’ separation agreement.

SECONDARY SOURCES

~ from the Association of Family and Conciliation Courts

~ Guidelines for Parenting Coordination - here

~ Guidelines of Parenting Plan Evaluations in Family Law Cases - here

~ Parenting Plan Guide - here

~ Parenting Plan Template - here

~ Information about Parenting Coordination from Steps to Justice - Your Guide to Law in Ontario

REPORTS

“Meaningful Change for Family Justice:Beyond Wise Words: Final Report of the Family Justice Working Group, by Action Committee on Access to Justice in Civil and Family Matters” - April, 2013 (The Cromwell Report) - here

Articles

Articles by AJ Jakubowska

Articles by others

(alphabetical order, by title)

Alientated Children in Family Law Disputes in British Columbia, by John-Paul E Boyd, QC ~ here

Best Practices for Addressing Power Imbalances and Safety in Family Dispute Resolution Processes: Research, Protocols and the Law, by Hilary Linton ~ here

Better Access to Better Justice: The Potential of Procedural Reform, by Noel Semple ~ here

Conflict Analysis and Intervention Selection for the Parenting Coordinator: Strategies for Success, by Nicole Garton ~ here

Exploring the Role of Mandatory Mediation in Civil Justice, by Nayha Acharya ~ here

Mediator Discretion in Cases Involving Intimate Partner Violence, by Michaela Keet and Jeff Edgar ~ here

Reforming  Ontario’s  Family  Justice  System:  An  Evidence­‐Based  Approach, by Noel  Semple and Nicholas Bala ~ here

The Development of Parenting Coordination and an Examination of Policies and Practices in Ontario, British Columbia and Alberta, by Lorne D Bertrand, John-Paul E Boyd, QC ~ here

The Voice of the Child in Family Law: Exploring Strategies, Challenges and Best Practices in Canada, by Michael Saini, PhD, MSW, RSW ~ here