Parenting Coordinator: Friend To Families in Conflict

Report
Parenting Coordinator: Friend To
Families in Conflict (?)
By Ken Nathens
Nathens, Siegel Family Lawyers
Toronto, Ontario
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FRIEND DEFINITION
Friend [frend] Show IPA
noun
1.
a person attached to another by feelings of
affection or personal regard.
2.
a person who gives assistance; patron;
supporter: friends of the Boston Symphony.
3.
a person who is on good terms with another; a
person who is not hostile: Who goes there?
Friend or foe?
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DEFINITION OF PARENTING
COORDINATOR
• According to Barbara Jo Fidler, Ph.D., C. Psych., Acc. FM (from
“Parenting Coordination: Lessons Learned and Key Practice
Issues” 31 CFLQ No. 2 (March 2012)
• “Parenting coordination is a dispute resolution process
provided by mental health or legal professionals that assists
high-conflict parents to implement their existing parenting
plan in a child-focused and expeditious manner that minimizes
parental conflict, thereby reducing risk to children. It is a
hybrid role that blends both mental health and legal
functions.”
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PC NOT SEXY BUT
IMPORTANT FAMILY LAW
TOPIC
• SHOWS GROWING IMPORTANCE/ACCEPTANCE OF ADR INTO
FAMILY LAW WITH ADVANTAGES AND DISADVANTAGES
• AND ACCEPTANCE OF NON LAWYERS NON JUDGES DEALING
WITH FAMILY LAW ISSUES
• FORM OF ADR HYBRID OF MEDIATION AND ARBITRATION
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TEN ISSUES THAT COME UP OFTEN IN FAMILY LAW
(OR A DAY IN THE LIFE OF A FAMILY LAWYER)
• 1. Who gets/keeps Sarah’s passport/OHIP card?
• 2. How do we work it out so mom/dad can both go to Wayne’s
hockey games without fighting with one another?
• 3. What time does Matthew call Mom when at dad’s? Should he
have his own cell phone?
• 4. Miguel has Spanish class Monday afternoon but its dad’s time,
does he have to take him?
• 5. Should summer vacation with dad be two consecutive or non
consecutive weeks?
• 6. Should pick up of Tyler take place at police station, Tim Horton’s,
Starbucks or grandma’s? If Tim Horton’s which one?
• 7. Do bicycles go back and forth between mom and dad’s home?
• 8. Grandpa is getting married, again and it is dad’s weekend, can
Dakota come to wedding with mom and if so can dad make up the
weekend next week?
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TEN ISSUES(CONT’D)
• 9. Kaylee is on medicine, mom deletes my texts. How do I
make sure mom understands and gives the medicine during
Kaylee’s time with her?
• 10. We are supposed to split Christmas/Chanukah/Easter etc
but he always takes first choice and never permits me to take
the children to visit my family. We cannot work this out
• ANNOYING BUT IMPORTANT-SEEMS TRIVAL BUT IS NOT-GOES
TO FAMILY DYNAMICS AND EXTENDING CONFLICT POST
SEPARATION-NOT IN BEST INTEREST OF CHILDREN
• Example-film clip.
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THREE ROLES OF PARENTING
COORDINATORS
1. Implementation and modification, where necessary, of the
existing parenting plan (within limits)
2. Ensuring compliance with the plan
3. Resolving parenting disputes and issues in a timely manner-Fill
in Parenting Plan Gaps
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Five Functions of Parenting
Coordinator
• 1. Assessment (of family dynamics, not of custody and access)
• 2. Parent education-see Department of Justice Handout“Parenting After Separation”
• 3. Conflict management
• 4. Case management/coordination
• 5. Decision making as last resort (binding arbitration within
limited scope of jurisdiction)
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FAMILIES FOR WHICH PCs
MAY BE HELPFUL
• “Conflicting co-parenting” are cases where PC may be needed.
These are characterized by poor communication, low
cooperation, high levels of distrust, control and dependency,
and ineffective decision-making.
• In 2002 study referred to by Dr. Fidler in “Parenting
Coordination: Lessons Learned and Key Practice Issues”
(Heatherington & Kelly) after 2-3 years of separation 30% of
parents exhibited “cooperative co-parenting” 40% where
characterized as “parallel co-parenting” and a minority of
about 15-20% were identified as “conflicted co-parenting”.
These high conflict cases consume as much as 90% of the
courts’ time.
• These chronic cases have potentially a significant mental
health consequence for both children and parents. (Henry,
Fieldstone, Bahac, 2009)
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Families For Which PC’s May
Be Helpful (continued)
• Although personality disorders and psychiatric illness are
disproportionate in this conflicted group. May be beyond help
of PC’s.
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CASES WHEN PC’s SHOULD NOT
BE USED
• Cases where participants use PC process to keep conflict alive
• Process is subject to exploitation-Difficulty of getting matter
before a Judge once PC contract signed can be used to
advantage of one parent
• If child is abused or subject to abuse by parents
• Mental illness or personality disorders-Parents unable to take
direction
• Alcohol and drug dependencies
• Screening Process necessary to determine when PC will be
useful?
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LEGAL STATUS OF PARENTING
COORDINATOR
• In Ontario and rest of Canada other than B.C.
1. In Ontario no specific statutory recognition of PCIt is a form of mediation (voluntary process) and
arbitration and Arbitration Contract is a form of
domestic contract pursuant to the FLA
1. Status similar to mediation/arbitration, thus
process is voluntary and on consent, although
arbitration portion of PC is governed by FLA
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LEGAL STATUS OF PC
• Under the 2006 amendments, a family arbitration agreement
is a 'domestic contract' as defined in the Family Law Act. This
means that to be valid, it must meet certain conditions, in
addition to those that apply to all contracts:
• It must be witnessed and in writing
• It must state that the arbitration is governed exclusively by
Ontario or other Canadian law.
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S. 59.7 of FLA
• Secondary arbitration
• 59.7 (1) The following special rules apply to a secondary arbitration and to an award made
as the result of a secondary arbitration:
• 1. Despite section 59.4, the award is not unenforceable for the sole reason that the
separation agreement was entered into or the court order or earlier award was made
before the dispute to be arbitrated in the secondary arbitration had arisen.
• 2. Despite clause 59.6 (1) (b), it is not necessary for the parties to receive independent legal
advice before participating in the secondary arbitration.
• 3. Despite clause 59.6 (1) (c), the requirements of section 38 of the Arbitration Act, 1991
need not be met. 2006, c. 1, s. 5 (10).
• Definition
• (2) In this section,
• “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).
• Enforcement
• 59.8 (1) A party who is entitled to the enforcement of a family arbitration award may make
an application to the Superior Court of Justice or the Family Court to that effect. 2006, c. 1,
s. 5 (10).
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Legal Status of PC (cases of
interest) Ontario
1.
Cases of Interest
(i)
Bozin v. Bozin, 2010 CarswellOnt 1492 (O.S.C.) McGee J.
“There are many advantages in moving parenting issues from
the courts to a parenting coordinator. It is a decision
increasingly being made by separated parents, and it is their
decision alone. It is outside the jurisdiction of the the court to
delegate the court’s authority to a parenting coordinator, or to
dispense with the consent of a parent to an Agreement for
Mediation/Arbitration or an Agreement for Parenting
Coordination Services and Arbitration in accordance with the
Arbitration Act and Family Statute Law Amendment Act. “
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Cases of Interest (cont’d)
(ii) See also Czutrin J. in Steels v. Butrimas, 2012 CarswellOnt12128
(Ont. S.C.)-court cannot delegate jurisdiction to PC
iii) But see Katz v. Katz (2010), 1 R.F.L. (7th) 329 (O.S.C.) court uses
parens patriae jurisdiction to appoint a parenting coordinator to
“serve as a facilitator, make recommendations to resolve disputes, and
assist in implementation of a parenting plan, and negotiate the
separation process in the most sensitive and supportive manner
possible for the child.” Does not include arbitration role.
(iv) See also McCall v. Res, 2013 CarswellOnt, 5865 Justice Spence of
O.C.J. without any specified authority, parens patriae or otherwise,
orders the appointment of a PC not on consent, as a way to level the
playing field “given the father’s behavior towards the mother and his
inclination to exert his power and authority through intimidation.”
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Legal Status of PC-BC
• Division 3-There may be an agreement or order for a PC under
B.C. FLA proclaimed in 2013.
• Other Jurisdictions to Follow?
• -Brief Overview of B.C. FLA ss 14-19 (Handout)
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WHO MAY BE A PC (Ontario)
• No specific PC statute sets standards of practice and no
organizations that license PCs specifically.
• Professionals accountable to governing body (LSUC, College of
Social Workers, Psychologists etc. )
• Only statutory requirement to act as PC is set out in
regulations to Ontario Arbitration Act:
Every arbitrator who conducts a family arbitration shall
have received the training approved by the Attorney
General for the arbitrator or class of arbitrators, as set out
on the Ministry’s website. O. Reg. 134/07, s. 3.
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WHO MAY BE A PC Ont.
(Cont’d)
Ministry Website
Domestic Violence
1. all family arbitrators must have received at least a training program of 14 hours (all taught in
a week or less) in screening parties for domestic violence and power imbalance. The training
should be provided by a reputable provider and include attention to most or all of the
following elements:
2. the nature and extent of domestic violence
3. the nature of the arbitration process and how it differs from mediation or direct
negotiations
4. the roles and responsibilities of the screener
5. how to screen for abuse and power imbalance
6. the use of one or more tools for screening, including in an arbitration context
7. the form and content of screening reports
8. limitations of screening techniques
9. the effects on children of exposure to domestic violence
10. how the best interests of the child are affected by domestic violence
11. how to identify concerns of people from diverse cultures
12. how to determine when arbitration is or is not appropriate, and how to develop
options for proceeding with arbitration when arbitration would be appropriate with
13. safeguards in place
14. how to adapt parenting plans when domestic violence is present
15. knowledge of community resources to deal with domestic violence.
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WHO MAY BE A PC Ont.
(Cont’d)
Ministry –Cont’d
All family arbitrators who are not members of the Ontario Bar or
another Canadian bar must complete 30 hours of training on Ontario
family law. While all of this need not be taken at one time, there are
certain core competencies that would benefit from being learned as a
package
• AFCC (Association of Family and Conciliation Courts) Guidelines
(2005) specify that a PC shall be qualified by education and training
to undertake parenting coordination and shall continue to
professionally develop in the role. The PC shall be required to have
training and experience in family mediation. PC shall be licensed
mental health or legal professional in area relating to families.
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B.C –Who May Be A PC
• REGS-BC FLA (Handout)
• B.C. Regulations sets minimum training
and practice standards for family
mediators, family arbitrators and
parenting coordinators who wish to assist
people to resolve family law disputes.
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INVOLVEMENT OF PC (PC
AGREEMENT)
• 1. Parenting Coordination Agreement Specifies Terms of
Service
Key Provisions of PC Agreement
• 1. Principles
• 2. Voluntary Nature
• 3. PC is “Neutral” Third Party charged with implementing
order or parenting agreement in a manner consistent with
child’s “best interests”
• 4. Two components-mediation-arbitration-paragraphs 21 ff of
PC Agreement
• 5. Exclusions from PC roll
• 6. Waiver of right to litigate
• 7. Length of Term
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PC AGREEMENT (cont’d)
• 7. Secondary Arbitration pursuant to s. 59.7 (2) of FLA
• 8. Waiver of s. 35 of the Arbitration Act, S.O. 1991 c. 17.
• 10. Children involvement-interview with children and
disclosure of information provided by children (paragraph 23
and paragraph 37 of PC Agreement)
• 11. Limited Rights of Appeal (s. 45 of Parenting Agreement)
• 12. Termination or Withdrawal from PC-(s. 48 of PC
Agreement) PC may resign on 30 days notice.
• 13. Fees (of course)-$200-$350 per hour not unusualProvisions 56 and 59, 60 of PC Agreement regarding allocation
of fees and costs.
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ADVANTAGES OF PC
See R. Craig Neville “Parenting Coordination; Making it Work for
Your Clients Under the New Family Law Act” CBA Family Law
Subsection (2013)
1. Determinations made in timely fashion
1. PC’s develop knowledge of family dynamics over extended
period working with family
2. Attempts to negotiate settlement, if not determination
made. No wasted mediation time. No need to commence
expensive court procedure
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ADVANTAGES OF PC
• 4. Justice delayed is justice denied. Example family trip or school
trip.
• 5. Justice available on the cheap (compared to court). Remedies
power and financial imbalances between parents at least short term
while PC involved.
• 6. Less negative impact on children. Disputes resolved quickly and
without extended argument and unnecessary cost (in theory).
General recognition among professionals that parental conflict post
separation is not positive for children.
• 7. PCs deal with the day to day annoyances that Judges prefer not to
deal with or tell parties to go into hall to work out. Example pick up
at Tim Horton’s or McDonald’s, extra-curricular activity scheduling.
Therefore, there is an outlet for parents stuck in on going parenting
conflict that seems petty, but has impact on family and children.
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CRITIQUE OF PC-A Child’s
Perspective
• 1. Parents pick PC-not child
• 2. Child is not a party to a PC contract. How does PC know
what is in child’s best interest, if no child involvement? PC
Agreement is concerned about parent’s behavior and parents
getting along, secondary focus on child.
• 3. Contract does not require PC to talk with child nor does
child have a right to legal representation in PC process-Parents
argue best interests, PC decides or mediates, possibility of no
child involvement. Up to PC how to conduct the process. Are
child’s views and preferences taken into account
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CRITIQUE OF PC (Cont’d)
4. Role of child
in PC process not defined. Seen by some as way to keep
children out of litigation rather than as stake holders in outcome. Consider
statement of Justice Rogers in Sehota v. Sehota 2012Carswell 2494 (Ont. S.C.):
“ Ms. Cook (the PC) interviewed the child, Jai. While this is said to have been on
the consent of the parties, the court is concerned that a PC would adopt this
approach. Presumably, the main purpose of a PC is that the parents are to be
assisted with decision-making and communications so as to keep the child out
of the fray, not to involve the child by interviewing with forensic findings in
mind.
The task of interviewing a child is very difficult. Lawyers who are on the panel
for the OCL have extensive training so as to how to interview without leading
questions and in a manner that attempts to ascertain the true views of the
child. This is a lengthy and cautious endeavor. Ms. Cook gave no description of
the interview with the child. It would be impossible for the Court to know the
worth of the interview and the weight to be given to such effort. Nor does the
Court wish to encourage the interviewing of a child by a PC.”
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CRITIQUE OF PC (cont’d)
Case speaks to qualification issues as well as role of child in PC
process.
• 5. Parents pay fees-PC responsible to parents, not necessarily
to child. Follow the money? Conflict?
• 6. PC can quit-if going gets rough. Leads children/family in
difficult position. PC Burnout? Nothing can be done for family
other than court?
• 7. My own mixed experiences with PCs.
• 8. Success Rate-50% renew contract with PC
• 8. Prolonging of family conflict. Avenue to create disputes.
• 9. Parents can opt out. Not pay if not happy. PC can withhold
decision prior to payment.
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CRITIQUE OF PC (cont’d)
10. Elitist (?) and trivial (?)-Two levels of justice for those who pay, those
who cannot. Gives parents way to argue on matters that otherwise
could be agreed to-such as slight variations to scheduling. Is PC
babysitter for parents? If so, who is taking care of the children’s
interests?
11. Promotes shared parenting and joint parenting in situations where
not appropriate-where parents cannot get along. PC gives way out for
Judges to avoid making difficult decisions. Consider if in high conflict
whether it is better to have traditional sole custody with very specific
court order or parenting plan in place, little room for negotiation or
change.
12. More professionals on Family Law pay dole. Maybe less
professionals needed but more effective and accessible court system.
Can masters/trained paralegals perform same role in court, or have FRO
type enforcement mechanism if we are concerned?
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CONCLUSION
• PC FRIEND TO SOME
• NOT HELPFUL TO OTHERS PARTICULARLY HIGH CONFLICT CASES WHERE PC MAY
SERVE TO EXTEND AND PROLONG CONFLICT GIVE PARTIES FURTHER VENUE FOR
CONFLICT
• PCs ARE OFTEN DEDICATED PROFESSIONALS WHO FILL A NEEDED VOID
BETWEEN INEFFECTIVE PARENTAL COMMUNICATION AND PARENTS NEEDING TO
GO TO COURT ON EVERY MINOR PARENTING ISSUE THAT MAY COME ALONG.
LIKE ALL OTHER PROFESSIONALS IN FAMILY LAW, PCs SATISFY A DEMAND THEY
DID NOT CREATE.
• IN THEORY POSITIVE FOR KIDS ALTHOUGH KIDS INVOLVEMENT IN PROCESS
NEEDS FURTHER THOUGHT
• AS FATHERS BECOME MORE INVOLVED WITH PARENTING, INCIDENCES OF JOINT
CUSTODY SHARED PARENTING INCREASE, THERE IS A NECESSARY ROLE FOR PCS
TO PLAY TO HELP AVOID PLAYING CHILD IN THE MIDDLE.
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