“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.”
— with files from Gabrielle Giroday