parenting coordination in canada: an overview of legal and practice issues

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Parenting Coordination inCanada: An Overview of Legaland Practice IssuesBarbara Jo Fidler & Philip EpsteinPublished online: 11 Oct 2008.

To cite this article: Barbara Jo Fidler & Philip Epstein (2008) Parenting Coordinationin Canada: An Overview of Legal and Practice Issues, Journal of Child Custody, 5:1-2,53-87, DOI: 10.1080/15379410802070393

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Parenting Coordination in Canada: AnOverview of Legal and Practice Issues

Barbara Jo FidlerPhilip Epstein

ABSTRACT. Parenting Coordination is an emerging alternativedispute resolution option for chronically conflicted separated anddivorced families, involving a hybrid of legal and mental health roles.With an emphasis on Parenting Coordination in Canada, this articledelineates the parenting coordinator’s specific roles and functions.The legislation relevant to the arbitration component is summarized.The process for both the non-decision-making and decision-making components of the Parenting Coordination are outlined anda sample Agreement is appended. Three key ethical and practice issuesare discussed: the dual roles of mediator-arbitrator, the parenting

Barbara Jo Fidler, Ph.D., is a registered psychologist and accreditedmediator practicing in Ontario, Canada. She received her Ph.D. from YorkUniversity (Toronto) in 1986. Dr. Fidler maintains a private practice and isa founding member of Family Solutions. She was appointed to the AFCCTask Force charged with developing guidelines for Parenting Coordination.A frequent presenter, Dr. Fidler has published in the areas of high conflict,child alienation and custody assessments (Birnbaum, R., Fidler, B. &Kavassalis, K., Child Custody Assessments: A Resource Guide for Legaland Mental Health Professionals, 2008).

Philip M. Epstein, QC LSM is Senior Partner in the firm of EPSTEIN,COLE LLP. Mr. Epstein practices family law at all levels of courts in Ontarioand in the Supreme Court of Canada. He carries on a very active practice inmediation=arbitration and lectures extensively throughout Canada toContinuing Education Programmes and the National Judicial Institute.

Address correspondence to Barbara Jo Fidler, 1709 Bathurst Street,Toronto, ON M5P 3K2, Canada. E-mail: [email protected]: www.familysolutionstoronto.ca

Journal of Child Custody, Vol. 5(1/2) 2008Available online at http://jcc.haworthpress.com

# 2008 by The Haworth Press. All rights reserved.doi: 10.1080/15379410802070393 53

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coordinator as witness, and preserving the confidentiality of childrenand collateral sources.

KEYWORDS. Mediator-arbitrator, parenting coordination in Canada,preserving confidentiality

INTRODUCTION

Parenting Coordination is a rapidly emerging alternate disputeresolution service for chronically conflicted separating and divorcedfamilies (Coates, Deutsch, Starnes, Sullivan & Sydlik, 2004; Boyan& Termini, 2004; Stahl, 1999; Sydlik & Phelan, 1999). While widelypracticed in the United States and to a lesser extent in Canada,considerable confusion and both ethical and practice dilemmas areprevalent (Coates, 2003).

By definition, parenting coordinators assume a hybrid role of legaland mental health functions (Sullivan, 2004). More specifically, thesefunctions include assessment, education, coaching, intensive casemanagement, facilitation (mediation), and monitoring. With specia-lized knowledge and skills, parenting coordinators assist parents toimplement their previously agreed to and=or court ordered parentingplans expeditiously and in a manner that protects their children fromongoing parental conflict, thereby reducing risk for these children.While parenting coordinators will naturally attempt to help parentsto communicate more effectively, in many cases this will not be pos-sible. The goal in these higher conflict cases should be to disengagethe parents, thereby assisting them to parent in a parallel fashion.

When agreements cannot be reached, the parenting coordinator(PC) makes binding decisions (arbitrates) within a defined and typi-cally limited scope. Typically, high conflict parents are prone to argueabout day to day parenting issues and more so than the ‘‘major’’ child-related decisions (identified by law as those relating to health=welfare,education and religion). Examples of these day to day decisions are:extra-curricular activities and lessons; parent communication and rulesof engagement (and disengagement); management of clothing andbelongings between the two homes; vacation schedules; telephoneaccess; the time of and parental conduct during transitions; temporaryand minor adjustments to the parenting time schedule; and so on.Parenting coordinators may also modify parenting plans by providing

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either clarification or additional clauses to reduce conflict and facilitatesmoother implementation.

In most jurisdictions, parenting coordinators do not arbitrate achange to the custody provisions (i.e. decision-making for what thelegislation refers to as the ‘‘major’’ decisions) or substantial changesto the residential schedule,1 or determine a relocation.2 However, incases of joint custody where the parents are unable to agree on themajor child-related issues (e.g. school or daycare choice, counselingfor a child), with consent, parenting coordinators can arbitrate thesematters. Parenting coordinators do not conduct child custody andaccess assessments3 or therapy. Financial matters are typicallyexcluded from the parenting coordinator’s role.

In this paper, we provide an overview of Parenting Coordinationin Canada. As the authors practice in Ontario, we are in a betterposition to elaborate on the governing legislation and practice ofParenting Coordination in our province. We conclude with adiscussion of several common ethical, legal and practice issues.

Parenting Coordination in Canada: Legislation

In Canada, similar to what has been reported in the United States(Kirkland & Kirkland, 2006), interest in Parenting Coordinationdates back to the early 1990s stemming from the interdisciplinarygroup of legal and mental health professionals in Denver, Colorado(Garrity & Baris, 1994; Baris et al., 2001) and, concurrently, theNorth California mediation and special masters statutes (Lee, 1995;Johnston & Roseby, 1997; Johnston, Walters & Friedlander, 2001).

Unlike in the United States, Canadian divorces are governed by aFederal Statute, the Divorce Act (1985 c3 (2nd Supp)), which hasapplication in all provinces and territories. Custody and access4

issues are corollary to divorce where the parties are married and,accordingly, many custody and access disputes will be dealt withby judges under the provisions of the Divorce Act. For those partiesthat are not married but have children and, therefore, custody andaccess disputes upon separation, those custody issues will be dealtwith under provincial or territorial legislation. Although there aretwo sets of legislation, both Federal and Provincial, that deal withthe resolution of custody disputes, there is not much substantivedifference between the legislation and, of course, both sets oflegislation make the best interests of the children paramount inany decision-making process.

Barbara Jo Fidler and Philip Epstein 55

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There is a growing recognition in Canada that the courts are not asuitable place to resolve most custody and access disputes. Familylawyers are frequently reluctant to take on high conflict custodyand access cases since clients can rarely afford that kind of adversar-ial litigation and, further, family lawyers recognize that it is oftencounterproductive to the children’s best interests. Thus, increasinglyfamily lawyers are encouraging their clients to turn to mediation todevelop parenting plans, and subsequently to Parenting Coordinationto resolve implementation issues arising out of their parenting plan orSeparation Agreement.5 If the parties, with the assistance of theparenting coordinator, are unable to resolve the matter, the parentingcoordinator will arbitrate.

Each province in Canada, except Quebec, allows the parties toa family law dispute to go to arbitration under their provincialArbitration Acts. All of the Acts provide roughly the same schemefor private adjudication. That is, the parties choose an arbitrator,agree on the terms of the arbitration agreement, and bind themselvesto accept the result of the arbitrator. Quebec does not allow parties toresort to private arbitration.

It has been generally accepted by courts in Canada that judgescannot make an order delegating their powers to a third party.Accordingly, it is not possible for a judge to delegate any decision-making process to a mediator, arbitrator and, in particular, for thepurposes of this paper, a parenting coordinator. Mediation, however,can be ordered on the consent of both parties. Further, parties mayagree to have their dispute resolved by arbitration under variousprovincial Arbitration Acts in order to take their individual caseout of the court system. Accordingly, parenting coordinators canbe appointed by the court and have mediation and arbitral powersonly if the parties consent to it and delegate the responsibility ofdecision-making to a third-party parenting coordinator.

Like our neighbors to the south (Coates et al., 2004), judges acrossCanada have become quick to recognize that Parenting Coordinationcan play an important role in the ongoing management of highconflict custody cases. Using their power of persuasion at caseconferences and settlement conferences, judges are frequently ableto convince the parties, or their lawyers, to engage a parenting coor-dinator. It is generally accepted that when judges are unable to per-suade the parties to do so, they are not free to appoint a parentingcoordinator. This position has clearly been accepted by most judges,


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especially in Ontario, but some (a minority) judges in other provinces,especially Alberta, are prepared to do so without the parties’ consent(see Verlaan v. Baird Carswell BC 2360).6 Further, in Alberta, Prac-tice Note 7 may allow the appointment of mental health professionalsas ‘‘intervenors’’ without the consent of the parties (Practice Note 7of the Alberta Curt of Queen’s Bench Rules).7 Although courts havefrom time to time appointed PCs without the consent of both parties,we doubt that the appointment would prevail if one of the partiesappealed the decision. We await case law to see how this pans out.

Ultimately, courts in Canada, as in other jurisdictions, retain aparens patriae jurisdiction to act in the best interests of children. Not-withstanding the courts’ right to exercise parens patriae jurisdictionand overrule a decision of an arbitrator, there is a growing indicationthat mediation=arbitration has become a widely accepted alternativedispute resolution process and the courts are unlikely to interfere withan award by an arbitrator provided that the arbitrator has compliedwith the provisions of the relevant Arbitration Act, not exceeded hisor her jurisdiction, and complied with the requirements of dueprocess. We expect the same will occur with respect to ParentingCoordination, although it is premature to know for certain.

Recently, in Ontario, the government decided to amend theArbitration Act to address regulations more explicitly and to preventthe use of religious law, particularly Sharia law, from being employedin family law arbitrations.8 Thus, in Ontario at least, the arbitrator isconfined to applying the law of Canada as opposed to resorting toany foreign law, including faith-based law. Essentially, in Ontario,faith-based arbitration is now prohibited and it will be the Provincialor Federal law that will govern the resolution of the dispute (ArbitrationAct, S.O. 1991; Family Law Act RSO 1990 c.F.3; and Divorce Act).

Much to the dismay of lawyers and parenting coordinators, theamended legislation no longer permits the parties to waive a rightof appeal to the court. Although not expressed by the drafters ofthe legislation, it seems apparent that the right to waive the right ofappeal was removed from the Act because arbitration is an unregu-lated profession and to ensure compliance with the new regime thatthe arbitrator must not apply religious law. This change, however,that disallows waiving the right of appeal, has the effect of preventingany decisions made by the PC from being completely final, one of thevery objectives of Parenting Coordination. It is our experience thatparties and their lawyers prefer a process that allows parties to waive


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their right of appeal, but that is no longer possible in Ontario. Still,parties recognize the parenting coordinator’s limited scope of auth-ority to arbitrate (unlike that in mediation=arbitration) and have astrong need and desire for finality to their disputes. While this hasyet to ‘‘stand the test,’’ we expect the courts will agree.

Generally speaking, parents who have agreed to Parenting Coordi-nation will live with the result and not seek to overturn it. In manycases, the issue arbitrated, such as attendance at a special event or tem-porary schedule change, will be over and done with by the time of anyappeal. Still, in high conflict cases where the battles continue to rage, adisappointed party has two avenues they can pursue to overturn a par-enting coordinator’s decision. The first is to appeal to a court on thebasis that the PC erred in law or in fact or both. The second is toask the court to judicially review the decision on the basis that thePC did not treat the parties fairly or violated some other rule of whatin Canada is called ‘‘natural justice’’.9 Under the various ArbitrationActs in force across this country, the parties may not contract out ofthe rules of ‘‘natural justice’’. When functioning in the arbitration role,natural justice requires the PC to deal with the parties fairly,which includes giving each party an opportunity to be heard andpresent his=her case, making sure each knows the case of the other side(full transparency) so that he=she can make a full answer.

Regrettably, the PC has no power to enforce an award. This rightrests solely with the court. A party seeking to enforce an awardagainst a recalcitrant party must bring an application asking thecourt to execute its enforcement powers. The court enforces theaward by making its own order, incorporating the parenting coordi-nator’s award. Noncompliance with this judicial order can leadon a subsequent motion to a finding of contempt with consequentsignificant penalties.

The Process

While Parenting Coordination is similar to mediation=arbitration,there are important differences. For example, Parenting Coordi-nation is used to implement an existing and final parenting planand in most cases court order, whereas mediation=arbitration maymore properly be used to develop a comprehensive parenting plan,including all terms relating to custody and access. In addition to therebeing a limited scope of decision-making in Parenting Coordination,


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it also provides intensive case management and a specified durationof service, which may not be present in a mediation=arbitration.

As provided for by the Arbitration Act, a typical ParentingCoordinator Agreement (Agreement) in Canada will allow the PC,amongst other things (i.e. educate, coach, facilitate, monitor, providecase management, etc.), to mediate the dispute and, failing a resolu-tion, to arbitrate the dispute. A sample Parenting CoordinationAgreement in wide use in Ontario is appended to this article. ThisAgreement is comprehensive and includes terms relating to: (a) prin-ciples; (b) the roles and objectives of the Parenting Coordination; (c)the specific mandate, including areas that are included in andexcluded from the PC’s scope of authority to arbitrate; (d) the non-decision-making and decision-making components and processes ofthe Parenting Coordination, including the transition between thesetwo components of the larger process; (e) fees and policies; (f) grie-vances; and (g) termination or withdrawal from the Parenting Coordi-nation. Certificates for independent legal advice and declarationsrequired by law to comply with the Act and to have screened theparties for domestic abuse, violence and power imbalances are pro-vided at the end of the Agreement.

Parenting Coordination Agreements will always be in writing. Asthe reader will note, it has very precise terms for the objectives, scopeof the authority to arbitrate, duration of service, method of payment,default of payment, how matters are to be mediated and arbitratedand, generally, attempts to cover all of the issues that are likely toarise in the dispute resolution process. It is important that the parent-ing coordinator be named in the Agreement. In addition, we stronglyrecommend that the parties’ consent to the Parenting Coordinationbe made into an on-consent court order.

The Agreement will set the limits of the parenting coordinator’sright to tamper with a pre-existing parenting plan=order. Aspreviously noted, unlike mediation=arbitration, Parenting Coordi-nation does not typically allow for the PC to arbitrate substantialand material changes to a parenting plan, such as a change in custody,parenting time schedules and=or a relocation. Parenting CoordinationAgreements commonly allow the PC only to tinker and to make tem-porary changes to the parenting plan. It is necessary for the PC to fullyunderstand the ambit of his or her jurisdiction before embarking uponthe task and it falls to the parties or usually their counsel to delineatespecifically the jurisdiction of the parenting coordinator.


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In order to meet the requirements of the rules of natural justice (orprocedural fairness), generally speaking, the PC will have to give theparties a hearing, either in person, by teleconference or in writing, ifthe issues have not been resolved during the mediation phase of thework. The PC will have to differentiate between the mediation andthe arbitration process by declaring that one process has ended andthe other has begun. Detailed terms relating to the process and thetransition between these two components of the Parenting Coordi-nation are provided in the Parenting Coordination Agreement. Con-trary to what typically occurs in a mediation=arbitration, the partiesconsent in advance to the PC being able to use all of the materialgleaned, including that obtained prior to the declaration of an arbi-tration. In addition, the PC may typically obtain information fromcollateral sources (e.g. therapists, teachers, coaches, etc.) directly,including children, and rely on this information in an arbitration.Clearly, then, Parenting Coordination brings us into new territory.The limited scope of decision-making, effectively excluding ‘‘major’’issues, and the need for a speedy and final resolution provide therationale for these procedural variations. Ethical and legal issuesassociated with these variations are elaborated later in this paper.

Independent legal advice is not required before the parties enterinto a Parenting Coordination Agreement because this will beconsidered a secondary arbitration10 in Ontario. Notwithstanding,it is considered better practice to have parties obtain independentlegal advice before committing to an Agreement. Given that Parent-ing Coordination is a service for parties experiencing chronic conflict,it is not uncommon for one or both parents to be dissatisfied with theprocess and the decision of the PC, and in turn look for a way out.Accordingly, it is important to ensure that the Agreement has beenfully understood by the parties and that they are ‘‘locked into theprocess’’ for the duration of time they have initially consented to,typically between 12 and 24 months. Hence, obtaining indepen-dent legal advice before executing the PC agreement is stronglyrecommended.

Training and Screening for Domestic Violence andPower Imbalances

The concern about faith-based arbitration and the lack ofprofessional regulations led the government in Ontario to enact


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legislation that requires arbitrators, including parenting coordina-tors, to receive appropriate training in domestic violence and familylaw.11 In addition, the legislation requires arbitrators to ensure thatthe parties have been properly screened for power imbalances. Inan arbitration that is not secondary, someone other than the arbi-trator will be required to conduct the screening and provide a reportof some nature to the arbitrator, while PCs will be permitted to con-duct the screening themselves.

Informal Inquiry into Parenting Coordination PracticeAcross Canada

The results of our inquiry12 indicate that Parenting Coordinationis currently practiced in several provinces across Canada, inclu-ding British Columbia,13 Alberta,14 and Ontario.15 There has beeninterest in other areas and provinces, where practice is expectedto grow. Inquiries and interest in training have been consistent andfrequent.16

Given that it is in its infancy, there are no government programs orfunding for Parenting Coordination. There is however a steadilygrowing interest from the government, community agencies that arefunded by the government, and the bench. For now, parties mustobtain and pay for services privately. Some jurisdictions and practi-tioners offer a sliding payment schedule. While there are some differ-ences in the practice of Parenting Coordination across Canada, forthe most part, practice follows the Guidelines endorsed by the Associ-ation of Family and Conciliation Courts (AFCC, 2006).

Consistent with these guidelines, practitioners recognize thatParenting Coordination requires considerable experience with andknowledge of the impact of separation and divorce, high conflictfamilies, developmental psychology, parenting time schedules, familysystems, family violence, mediation and conflict resolution, arbi-tration, and the relevant legislation and family law rules (Coateset al., 2004; Sullivan, 2004).

With respect to qualifications, the AFCC Guidelines (2006) indi-cate that a parenting coordinator should be a certified or qualifiedmediator under the rules or laws of their jurisdiction, and be alicensed mental health professional in an area relating to families,or a certified family mediator with a master’s degree in a mental


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health field. In addition, these guidelines state that the parentingcoordinator should have extensive practical experience with highconflict or litigating parents as well as training in the ParentingCoordination process and techniques, family dynamics in separationand divorce, domestic violence and child maltreatment (see AFCCGuidelines (Appendix A) for the model training curriculum andarticle by Joan Kelley, this issue). Further, the parenting coordinatorshould acquire and maintain professional competence in theParenting Coordination process and obtain continuing educationand peer consultation or mentoring.

Parenting Coordination must also be guided by the parentingcoordinator’s regulatory body for their specific discipline, as well asby federal and provincial ethical codes and standards of practiceestablished for mediators.17 In addition, some provinces have guide-lines related to child custody work more generally, not only child cus-tody and access assessments. For example, in 1998 the OntarioPsychological Association published the Ethical Guidelines forPsychological Practice Related to Child Custody and Access, whichare currently being updated, and hopefully will include ParentingCoordination. These guidelines include the various roles psycholo-gists may assume in child custody-related work, including mediator,assessor, court expert, consultant, arbitrator and therapist. TheOntario guidelines are likely to be useful to practitioners in otherprovinces as well. Guidelines relating specifically to child custodyassessments are also relevant to Parenting Coordination.18

Ethical and Legal Issues and Practice Dilemmas

When we speak of confidentiality and the limits therein, threeseparate but related aspects can be identified. First, as previouslynoted, in most jurisdictions there is no confidentiality because theparenting coordinator is permitted (or required) to report to thecourt and make recommendations, where appropriate. Second,any information obtained during the mediation phase may be usedwhen making awards. Third, the parenting coordinator has theauthority to have unrestricted communication with third partiesinvolved with the family, such as schools, physicians, mental healthproviders, children’s counsel, custody assessors and access to anyavailable records, and further to rely on this information during


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an arbitration (Coates, 2003; Coates et al., 2004). Each of theseaspects of confidentiality poses ethical and legal dilemmas to whichwe turn now.

Dual Roles of Mediator and Arbitrator

Parenting Coordination by definition involves the parenting co-ordinator assuming multiple, concurrent roles. While the PCattempts to facilitate or mediate a resolution and, failing that, to arbi-trate, the PC is not only a mediator or arbitrator; other functionssuch as providing education, guidance and case management arekey to Parenting Coordination. In speaking about the first aspectof confidentiality, a distinction needs to be made between parentingcoordination and mediation=arbitration. In Canada, parties maychoose either open or closed mediation. Open is not confidential,while closed is confidential. In closed mediation, the courts will insu-late mediators from being required to testify, except perhaps on thenarrow exception of being able to testify as to whether an actualagreement was reached between the parties.

While an arbitrator generally has quasi-judicial immunity and accord-ingly is not compellable as a witness and is not permitted to report to thecourt, in most jurisdictions Parenting Coordination is an ‘‘open’’ andnon-confidential process (see AFCC, 2006, Guideline V). In ParentingCoordination, where intensive case management and frequent monitor-ing of the parenting plan are important functions, there is a definite needfor the PC to have the ability if necessary to report to the court (Sullivan& Kelly, 2001). One scenario might be, for example, the parenting co-ordinator reporting to the court one parent’s noncompliance with termsrelating to parenting time and the accompanying family counseling,done by another professional involved with the family.

In speaking about the second aspect of confidentiality, aspreviously mentioned, with consent of the parties, the PC is permittedto rely on information obtained during the mediation phase for thearbitration. Usually, parties willingly agree to this provision giventhe limited scope of decision-making and the desire to avoid dupli-cation and ensure a speedy and final resolution of what are typicallya day-to-day implementation issues. Starting all over again defeatsthe objective for a timely and cost-efficient resolution. Moreover,many of the issues are time-sensitive and thus would not be able to


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be addressed or resolved if a more formal and protracted process hadto occur.

Parenting Coordinator as Witness

An arbitrator cannot be both a judge and a witness in the samecase. The arbitrator must base their decision on the evidence sub-mitted to them and not from information gathered directly by thearbitrator. This poses important ethical and legal practice issuesfor the parenting coordinator, who with consent is permitted toobtain information from third parties (including the children), andmoreover may rely on this information during an arbitration. Infact, parents usually want and insist on the PC gathering infor-mation from the children and other relevant collateral sources, apractice consistent with the AFCC Guidelines. Still, the importantquestion remains: Can natural justice be satisfied under thesecircumstances?

The PC Agreement attempts to satisfy these concerns by includingprovisions requiring parties to obtain independent legal advice priorto consenting to a Parenting Coordination Agreement that allowsfor information gathering by the PC, and to have their consentmade into a court order. In addition, the Agreement clarifies thatthe PC is required to share information and reports obtained fromthird parties with the parents prior to any arbitration, in turn afford-ing them the opportunity to respond to the information. Keep inmind the limited scope of decision-making afforded to the parentingcoordinator. In a mediation=arbitration, though, where the majorissues such as custody (decision-making for major child-related deci-sions) and access (parenting time schedules) may be within the scopeof any arbitration, we recommend that the arbitrator not be both awitness and a judge; any information from third parties is submittedto the arbitrator and made available to the parties and not gatheredseparately and directly by the arbitrator.

Clearly, these procedures need to be reviewed and sanctioned bya court. In Canada there is no case law that we are aware of onParenting Coordination specifically (see Verlaan v. Baird CarswellBC 2360), although there are a growing number of reported caseson family arbitrations and on family mediation=arbitrations.However an Ontario case, Hodge v Legault ((1998), 36.R.F.L.(4th) 211 1998 Ont.Gen.Div.), upheld an award of the psychologist


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arbitrator, who granted custody to the father, where the arbitratorconducted testing and observed the children and parents, and thenapplied the information he obtained directly to the arbitration pro-cess. We caution, however, that this may not be the end of the dis-cussion since generally speaking that approach in a standardarbitration is prohibited. It remains to be seen whether the growingrecognition of the salutary aspects of Parenting Coordination,recognizing the limited scope of decision-making authority andthe parents’ consent, will allow the courts to relax the rule so thatparenting coordinators can use the information they gather directlyin an arbitral decision.

The Need for Summary Disposition

When does the need to meet the requirements of natural justicelead to the possibility of greater risk for children, in terms of theirbeing subjected to the unrelenting conflict of their parents? Whendoes protracted procedure become counterproductive to the veryreason the parents consented to Parenting Coordination in the firstplace? Clearly, the required procedures for making awards underthe legislation can prolong issues, delay decisions, and exacerbateparental conflict thereby placing children at risk. In many cases,the attempted solution becomes the problem (Watzlawick, Weakland& Fisch, 1974). In addition, we have observed that parents frequentlyobject when the process gets bogged down and decisions are notmade reasonably quickly, one of the very reasons they opted forParenting Coordination. Sometimes the decision may be related toa temporary change of only one hour in parenting time so the childmay attend a special event. The requirement for what amounts to aprotracted process in the name of fairness and justice may in somecases mean the issue cannot be resolved in a timely manner, andperhaps even in sufficient time.

Keeping in mind the fundamental objectives of Parenting Coordi-nation for finality and speedy dispute resolution in order to shieldchildren from parental conflict, and the limited scope of decision-making permitted, we raise the need to consider an expedited processthat is also consistent with the principles of natural justice. Accord-ingly, in an effort to achieve this balance we recommend that legaland mental health professionals and parties consider the ability of


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the PC to provide a summary disposition. We propose the followingclause for consideration:

From time to time, given the exigencies of the situation and timeconstraints, it may be necessary to have a summary dispositionof a parental issue in order to accommodate the parents and thebest interest of the children and avoid a further escalation of theparental conflict, which in turn poses a risk to children. Accord-ingly, in those circumstances, the parties accept and acknowl-edge that the parenting coordinator has the authority to makea summary disposition of the issue within the parameters ofthe agreement, hearing briefly from both parties in such a mannerthat the parenting coordinator deems appropriate.

Preserving Confidentiality of Children and Collateral Sources

Many Parenting Coordinators interview children, while somedecline to do so (Baris et al., 2001; Coates et al., 2004). Frequently,parents want and expect this, especially when a mental healthprofessional is retained as the PC. Interviewing children may assistthe parenting coordinator to better assess and subsequently meetthe needs of the family. Direct contact with the children often affordsthe parenting coordinator more credibility in the eyes of the parents,who take comfort in knowing that the professional has first-handknowledge of their children. In many cases, sharing informationreceived from the children with the parents can assist in the settlementof issues, such as disputes over extra-curricular activities or how aspecial day or holiday is best shared.

In some instances, though, children’s confidentiality ought to bepreserved. Parents frequently agree with the need to protect children’sconfidentiality, subject of course to emergency risk situations. Conse-quently, it is possible that a PC could rely on information obtainedfrom children in an arbitration award, never having shared this infor-mation with the parents.

This of course raises legal and ethical dilemmas. How can theconfidentiality of children be honored and at the same time theparents’ rights to natural justice be preserved? While some lawyersare likely to express concerns about the evident violations in naturaljustice this approach may entail, many support the notion of preser-ving children’s confidentiality where appropriate, on the basis of the


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fundamental principle of the child’s best interests. We have foundthat most parents consent to the provision permitting the PC to usetheir discretion when disclosing information obtained from children.Given the plight of children in high conflict families, we maintain thatthis provision is fundamental to our ability to properly assist thesechildren and meet their best interests.19

A similar ethical and legal issue arises with respect to the confi-dentiality of information obtained from collateral sources, such asteachers and therapists with whom the parents and=or childrencontinue to have ongoing contact and treatment. It is not uncommonfor multiple professionals to be involved with these families and,moreover, for these multiple efforts to work at cross-purposes, albeitunintentionally (Sullivan, 2004; Sullivan & Kelly, 2001). Effectiveteam management, initiated and implemented by the parenting coor-dinator, is an important function of Parenting Coordination. Issuesarise with respect to how the obtained information can be relied uponin arbitration while also protecting the ongoing therapeutic allianceand ability of the therapist to meet the ongoing needs of their clients(Sullivan, 2004). Important questions include: How much of theinformation should be shared between the professionals? How muchof the information should be shared with the parents? What infor-mation will be shared with the court and by whom (Coates et al.,2004). These writers note that strategic management of informationobtained from third parties is both imperative and challenging.Coates et al. (2004) state: ‘‘The PC should function as the team’sexclusive linkage to any court proceedings to protect the professionalrelationships that the team members have with family members’’(p. 258).

Ultimately, the child’s best interests must prevail. Notwithstandingsome objections, the practice of affording the PC discretion when dis-closing information obtained from children and third parties is com-mon, as seen in the appointment of the special master in Californiaand parenting coordinators in other jurisdictions (Coates et al.,2004; Sullivan, 2004; Sullivan & Kelly, 2001). The courts in Canadahave yet to sanction these degrees of discretion exercised by theparenting coordinator when disclosing information obtained fromchildren and=or third parties. However, we believe it is essential tothe proper functioning of the Parenting Coordination process thatthis incursion over the rules of natural justice be permitted to prevail,particularly given the limited scope of decision-making afforded to


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the parenting coordinator, and when the parties, with the benefit ofindependent legal advice, have consented to such an arrangement.

CONCLUSION

The practice of Parenting Coordination remains challenging,posing significant ethical, legal and practice dilemmas. Managingprofessional risk and meeting the needs of children and their familiesis a difficult balancing act. As a newer alternative dispute resolutionmechanism, Parenting Coordination does not fit neatly into our exist-ing frameworks developed for mediation and arbitration. This punc-tuates the need for the development of legislation more properlysuited to addressing issues of confidentiality, due process, the needfor more flexible gathering of evidence, informal hearings, and themultiple concurrent roles the PC needs to assume. In addition, thedevelopment of court-based services are sorely needed so that Parent-ing Coordination may be offered to those who are likely to benefit,but who cannot afford to obtain the service privately.

Although we have some indication that Parenting Coordination iseffective as shown by a significant reduction in re-litigation rates andan increase in parent satisfaction (Terry Johnston, 1994 and Vic andBackerman, 1996, respectively cited in Coates et al., 2004), moreresearch is needed. Do those children and families who participatein Parenting Coordination fare better than those who rely on theadversarial court system? Are parenting coordinators able to protectchildren from parental conflict? If so, does this protection contributeto improved outcomes in children’s adjustment and well-being?

Hopefully, with continued multidisciplinary collaboration we willbe able to better meet the needs of children who face the ongoingchallenges of maintaining one life while living in two homes.

NOTES

1. Typically, substantial changes to the schedule are defined as those that would impact the

quantum of child support.

2. For further elaboration see AFCC (2006).

3. In Canada, we use the term ‘‘assessment,’’ while in the United States the term

‘‘evaluation’’ is used.


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4. In Canada, we use the term ‘‘access’’ when referring to ‘‘parenting time’’ or what is

frequently referred to in the United States as ‘‘visitation.’’

5. If there is no parenting plan and a resolution of all issues absent court involvement is

desired, mediation=arbitration is frequently used.

6. Justice Russell delegated her authority to a counselor or therapist who was to make

binding decisions pending the completion of the trial with judicial review possible. Of interest

is that in this case the therapist was to make any decision concerning the child, including those

relating to decision-making and parenting time, such scope going far beyond that typically

afforded to parenting coordinators.

7. We thank Professor Nicholas Bala for bringing these Alberta developments to our

attention.

8. The Family Statue Law Amendment Act, 2006 SO. 2001 c.1 came into effect on April

30, 2007.

9. Section 19(1) of the Arbitration Act of Ontario states that the arbitrator will treat the

parties ‘‘equally and fairly.’’

10. A ‘‘secondary arbitration’’ (s.59,7(2)) is a family arbitration that is conducted in accord-

ance 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 (emphasis added).

11. Specifically, the regulations of this recent legislation indicate that arbitrators are

required to have appropriate training approved by the Attorney General, including 30 hours’

training in Ontario family law (if not a member of the provincial Bar Association), 14 hours

in domestic violence and power imbalance (obtained in one week), training in family law arbi-

tration is strongly suggested but not mandatory, and a specific number of hours of continuing

education.

12. In addition to canvassing many colleagues in the Toronto area, the authors asked about

ten colleagues across several provinces who were known to have knowledge of and experience

in Parenting Coordination about developments in their jurisdictions and for names of other

colleagues in other provinces who may be involved in Parenting Coordination.

13. In British Columbia (BC), there has been considerable interest in Parenting Coordination

from both the bar and the judiciary in the last few years (personal communication with Phyllis

Keeney, see www.bcparentingcoordinators.com). The arbitration role of PC is governed by the

Commercial Arbitration Act RSBC 1996 Chapter 55. Parenting Coordination is provided by

counselors (from social work, psychology and psychiatry), mediators, and lawyers. The BC Par-

enting Coordinators group began meeting in July 2006. In addition to the executive committee,

three subcommittees have been established (Public Education & Outreach, Legal & Practice Issues

and Professional Education & Qualifications). The goals of this group are to establish an associ-

ation and the BC Parenting Coordination Roster Program by July 1, 2007. The group has been

meeting to identify the specific training that members will need to acquire before they can qualify

for their roster of parenting coordinators. During the last year, training has been provided by Dr.

Joan Kelly. In addition, the group plans to establish membership standards and best practice

guidelines, organize on-going training, and increase public awareness. At this point, members

are required to follow their respective professional ethical codes and standards of practice.

14. In Alberta, interest in Parenting Coordination dates back several years (personal

communication with psychologists, Drs. Eileen Ailon, Hanita Dagan, and Larry Fong, see

www.worldpsych.ca). Typically, it is provided by psychologists and social workers, although

there may be other professionals capable of so doing.The arbitration role of Parenting Coordi-

nation is governed by the Arbitration Act of Alberta: R.S. A. 2000, c.A-43, and amendments

thereto and the law applicable to the issues in dispute in that province.


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15. Spearheaded by Blaine Cellars of the Calgary-Coparenting Centre in Alberta, there is

a call for volunteers to establish the Canadian Parenting Coordination Association (www.

parentingcoordinators.ca).

16. The first author and Linda Chodos, MSW, RSW provide well-attended training

workshops to mental health professionals and lawyers in Ontario and other provinces on a

regular basis.

17. See for example, the Family Mediation Canada Code of Professional Conduct and the

Ontario Association of Family Mediators (OAFM) Practice Standards.

18. See for example: (a) the Model Standards of Practice for Child Custody Evaluation

by the Association of Family and Conciliation Courts (AFCC, 2004, revised 2007); (b) The

American Psychological Association Specialty Guidelines for Forensic Work (1994); (c) the

American Psychological Association Guidelines for Child Custody Evaluations in Divorce Pro-

ceedings (APA, 1994); (d) the American Academy of Psychiatry and the Law (Ethical Guide-

lines for the Practice of Forensic Psychiatry), adopted May 2005. In their recent article, Risk

Management and Aspirational Ethics, Kirkland and Kirkland (2006) provide ten PC Role

Guidelines.

19. See #36 of the PC Agreement.

REFERENCES

Association of Family and Conciliation Courts Task Force on Parenting Coordi-nation. (2006). Guidelines for parenting coordination. Family Court Review,44(1), 164–181. Available from [email protected].

Baris, M.A., Coates, C.A., Duvall, B.B., Garrity, C.B., Johnson, E.T., & LaCrosse,R.R. (2001). Working with high conflict families of divorce: A guide for profes-sionals. New Jersey: Jason Aronson Publishers.

Boyan, S.M., & Termini, A. (2004). The psychotherapist as parent coordinator in highconflict divorce: Strategies and techniques. New York: The Haworth ClinicalPractice Press.

Coates, C. (2003). Parenting coordination: Implementation issues. Family CourtReview, 41(4), 533–564. Available from [email protected].

Coates, C., Deutsch, R., Starnes, H., Sullivan, M.J., & Sydlik, B. (2004). Parentingcoordination for high conflict families. Family Court Review, 42(2), 246–262.

Garrity, C.B., & Baris, M.A. (1994). Caught in the middle: Protecting the children ofhigh conflict divorce. New York: Lexington Books.

Johnston, J.R., & Roseby, V. (1997). In the name of the child: A developmentalapproach to understanding and helping children of high-conflict and violent families.New York: The Free Press.

Johnston, J.R., Walters, M.G., & Friedlander, S. (2001). Therapeutic work withalienated children and their families. Family Court Review, 39(3), 316–333.

Kirkland, K., & Kirland, K.E. (2006). Risk management and aspirational ethics forparenting coordinators. Journal of Child Custody, 3(2), 23–43.

Lee, S.M. (1995). The emergence of special masters in child custody cases. AFCCNewsletter, 14, 5.

Stahl, P. (1999). Complex issues in child custody evaluations. Thousand Oaks, CA.Sage Publications.


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Sullivan, M.J. (2004). Ethical, legal and professional practice issues involved inacting as a parenting coordinator in child custody cases. Family Court Review,42(3), 576–582.

Sullivan, M.J., & Kelly, J.B. (2001). Legal and psychological management of caseswith an alienated child. Family Court Review, 39(3), 299–315.

Sydlik, B., & Phelan, A.B. (1999). Interventions for high conflict families: A nationalperspective. Office of the State Court Administrator, Oregon Judicial Department.

Waltzlawick, P., Weakland, J., & Fisch, R. (1974). Change: Principles of problemformation and problem resolution. New York: W.W. Norton & Company.

APPENDIX

THIS IS AN AGREEMENT FOR PARENTINGCOORDINATION SERVICES AND ARBITRATION

IN ACCORDANCE WITH THE ARBITRATION ACTS.O. 1991, c.17 and the FAMILY LAW ACT

R. S. O. 1990, c. F. 3

BETWEEN:[ ]

- and -[ ]

PRINCIPLES

1. The parents acknowledge that their child(ren) will benefit from ameaningful relationship with both parents, that parental conflictwill impact negatively on their child(ren)’s adjustment, and thatevery effort should be made to keep the child(ren) out of the par-ents’ disputes.

2. The parents wish to retain the services of [Parenting Coordinator’sName] as Parenting Coordinator (may subsequently be referred toas PC), to assist them in implementing, maintaining and monitor-ing the terms of the existing Minutes of Settlement (‘‘Minutes’’or also referred to as the Parenting Plan), dated ____________,and any subsequent Court Orders and previously arbitrateddecisions.


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3. The parents agree to voluntarily enter into this Agreement becauseof a desire to:

a. de-escalate parental conflictb. prioritize the child(ren)’s best interestsc. promote the child(ren)’s optimum adjustmentd. resolve issues=disputes in a time and cost efficient mannere. benefit from the direction of a qualified professional

ROLE AND OBJECTIVES OF THE PARENTINGCOORDINATOR

4. The parents agree to retain [Parenting Coordinator’s name] in herrole as Parenting Coordinator to act as a neutral third party toexpeditiously resolve issues that arise from the implementation ofthe Minutes (Parenting Plan) in a manner consistent with the chil-d(ren)’s best interests and in a manner that attempts to minimizeparental conflict. The Parenting Coordinator may provide consul-tation to the parents and may coach and educate them about waysto better communicate about the child(ren) and about ways to bet-ter communicate with each other, with the ultimate goal of helpingthe parents resolve issues amicably and efficiently on their own,without having to involve the Parenting Coordinator.

5. Parenting Coordination involves two components: (1) The Parent-ing Coordinator attempting to resolve issues arising out of theMinutes=Parenting Plan through facilitation, consultation, coach-ing and education, all being non-decision making functions; (2) Ifit is apparent to the Parenting Coordinator that continued similarefforts are unlikely to resolve the issue, then to resolve the disputethe Parenting Coordinator may arbitrate (defined as a ‘‘secondaryarbitration’’ by the Act, 59.7{(2}) in accordance with the Minutes=Parenting Plan and as set out in the decision-making process ofthis Agreement.

PARENTING COORDINATION SERVICES

6. The Parenting Coordinator is not entitled to over ride the Minutesand=or any subsequent Court Orders.


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7. The scope of the Parenting Coordinator’s role may include thefollowing (circle those that apply):a. assist with the implementation, maintenance and monitoring

of the Minutes=Parenting Plan, Court Orders and=or arbi-trated decisions;

b. address any conflicts in the child(ren)’s scheduling that occur;c. address any difficulties related to the children’s transi-

tions between the parents, including codes of conduct andtransportation;

d. develop any additional clarifying clauses that may be requiredgiven situations and events that unfold that were not initiallyanticipated when the Parenting Plan was developed;

e. monitor the child(ren)’s adjustment;f. assist in the maintenance of the child(ren)’s relationship with

each parent;g. assist the parents to communicate more effectively where pos-

sible and where not possible assist to disengage the parents;h. assist the parents with the exchange of information about the

child(ren) (i.e., health, welfare, education, religion, routines,day-to-day matters, etc.) that may be otherwise impossibleand=or ineffective, in accordance with the methods providedfor in the Parenting Plan;

i. where parents have joint custody and on consent and=or bydelegation of the court, to make final decisions relating to‘‘major’’ decisions (i.e., relating to education, health andwelfare, and religion) if the parents are unable to come to amutual agreement;

j. if necessary, make binding decisions pertaining to temporarychanges to the usual and=or holiday parenting time schedule,to accommodate special events and circumstances for thechild(ren) and=or the parents;

k. where not addressed by the Court Order and=or existingParenting Plan, resolve conflicts concerning the child(ren)’sparticipation in recreation, enrichment or extra-curricularactivities, lessons, and programmes;

l. address movement of the child(ren)’s clothing, equipment, toysand personal possessions between households;

m. address matters relating to the children’s travel with oneparent (i.e., protocol relating to passport exchange, itinerary,


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notarized permission letter, telephone calls with the non-resident parent, etc.);

n. clarify and resolve different interpretations of the ParentingPlan;

o. resolve conflicts concerning day to day health care, day to dayeducation matters, passports, risky activities, and events thatare not otherwise allocated for in the Minutes=Parenting Plan.

EXCLUDED FROM PARENTING COORDINATOR’SDECISION-MAKING ROLE

8. The following specific issues are excluded from the scope of theParenting Coordinator’s decision-making authority:a. changes in the usual parenting time (residential) schedule that

substantially reduce or substantially expand the child(ren)’stime with one or both parents or impact the quantum of childsupport;

b. a change in the geographic residence of the child(ren);c. a change in legal custody (i.e., final decision-making authority).

WAIVER OF RIGHT TO LITIGATE IN COURTS

9. By submitting to arbitration of the issues designated in paragraphs2 and 7 above, the parents hereby waive any right to further liti-gate those issues in Court, whether pursuant to the Family LawAct, R.S.O. 1990, c.F.3, as amended; the Divorce Act, R.S.C.1991, c D-3.4 (2nd Supp.), as amended, or any other statute orlaw.

TERMS AND AGREEMENT TO COOPERATE

10. [Parenting Coordinator’s name] is a registered psychologist andhas relevant knowledge, including that in the areas of child devel-opment, family systems theory and dynamics, the effects of separ-ation=divorce on children, adolescents, and adults, high conflictfamilies, and psychological functioning, from which the parentswish to benefit. Notwithstanding, she is not functioning as a


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psychotherapist for either of us, our family, or our child(ren).The parents have stipulated to this appointment and thedecision-making granted herein to the Parenting Coordinator.They further stipulate that [Parenting Coordinator’s] has therequisite professional qualifications and professionals skills toprovide the service of Parenting Coordination.

11. The parents will cooperate with the Parenting Coordinator andagree to be bound by this Agreement.

12. The parties agree that this Agreement shall continue for a term of______ months. To avoid a hiatus in services, the parents willadvise the Parenting Coordinator and the other parent in writingno less than 2 months in advance of the expiry date of serviceswhether or not they wish to renew the Agreement.

13. The Parenting Coordinator and the parents shall set a time andplace for meeting within ______ days of signing this Agreement.

14. At the request of the Parenting Coordinator, the parents shallsign all releases of information the PC deems required toimplement the process. The parents shall provide all records,documentation and information requested by the ParentingCoordinator as soon as possible upon the request of theParenting Coordinator from time to time.

15. The parents agree that the Parenting Coordinator can performthe function of parenting coordination, including both thedecision-making and non-decision-making components describedherein. They further agree that the fact that the Parenting Coor-dinator performs the non-decision-making component involvingmediation, facilitation and conflict resolution does not disqualifyher from arbitrating the same issues. In this regard, the parentswaive s.35 of The Arbitration’s Act, S.O. 1991, c.17. The agreedto term of service stated below will be upheld notwithstandingthat facilitated negotiation is part of the process and with theunderstanding that in other contexts, like mediation, for exampleand if there is no court order, a parent may withdraw from theprocess at any time.

16. The Parenting Coordinator is not a lawyer and will not beproviding legal advice.

17. The parents will provide copies to the other parent of all writtenreports and letters from third parties that they provide to the PC,unless otherwise directed by the PC.


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CONFIDENTIALITY

18. The Parenting Coordinator will meet separately with each partyfor the purpose of, among other things, screening the partiesfor the suitability of the process, including but not limited to,violence and power imbalances. The parties agree that any notesand intake material from the screening procedures will remainconfidential to the Parenting Coordinator and will not bedisclosed to the parties.

19. Subject to #18, the PC process is not confidential and the Parent-ing Coordinator may provide information and=or a report to thecourt, the parties, and their lawyers. Upon request of either oneor both parents, the Parenting Coordinator shall issue a report tothe parents, their lawyers and the court. The party requesting thereport shall pay fees for any such report. Any such report may besubmitted as evidence in legal proceedings between us. Eitherparent may call the Parenting Coordinator to provide evidencein Court, this evidence limited to that relating to disputes aboutparenting.

20. The parties acknowledge that in her function as an arbitrator, theParenting Coordinator is required to provide certain informationabout the outcome of the arbitration to the office of the AttorneyGeneral pursuant to regulations made under the Family StatuteLaw Amendment Act (2006). All identifying information isremoved in this report to the ministry.

NON-DECISION-MAKING COMPONENT (PROCESSPRIOR TO ARBITRATION)

21. If either parent has an issue relating to the child(ren) and=or theParenting Plan falling within paragraphs 2 and 7 of this Agree-ment that cannot be resolved with the other parent and afterreasonable efforts to do so, he=she may contact the PC. TheParenting Coordinator in consultation with the parties shall havethe authority to determine the protocol of all contacts and inter-views, including those required to attend such meetings=contacts.

22. During this non-decision-making phase prior to arbitration, theParenting Coordinator may communicate with one parent with-out the other being present. The Parenting Coordinator maycommunicate with the lawyers jointly and=or separately, unless


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determined otherwise at the start of the process. The ParentingCoordinator shall be entitled to pursue matters submitted bymeeting with the parents jointly and=or individually, reviewingwritten materials, and considering any other information thePC determines is relevant. In addition the Parenting Coordinatormay consult with professionals, family members and others suchas therapists, custody assessors, educators, and health careprofessionals if the Parenting Coordinator believes the infor-mation may be relevant.

23. The Parenting Coordinator may interview=observe the child(ren)privately and=or with the parents together or individually. TheParenting Coordinator shall disclose information obtained fromthe children only with the children’s consent and=or at theParenting Coordinator’s discretion.

24. There shall be no confidentiality concerning communicationsbetween the parents and the Parenting Coordinator and any thirdparties with whom the Parenting Coordinator may consult. TheParenting Coordinator may disclose to the parents all or partof any information she may have received from third parties,the other parent, and the children, subject to #23.

25. Agreements reached by the parents during the non-decision-making phase shall be drafted by the PC and provided to theparents in draft form for their approval and final agreement, ulti-mately taken out as a consent Award. Any disparity in wordingshall be resolved by the Parenting Coordinator.

DECISION-MAKING COMPONENT (ARBITRATIONPROCESS)

The Law

26. The arbitration shall be conducted in accordance with the law ofOntario, and the law of Canada as it applies in Ontario.

27. Issues related to the custody and access of the children (on aninterim and permanent basis) shall be determined in accordancewith the provisions of the Children’s Law Reform Act, R.S.O.,1990, c.12 or, if a divorce has been granted or the parties areinvolved in divorce proceedings, then under the Divorce Act,R.S.C. 1991, c. D-3.4 (2nd Supp.), as amended.


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The Process

28. The parties appoint [Parenting Coordinator’s name] to performthe arbitration function of the Parenting Coordination.

29. If the issue remains unresolved after a reasonable effort, or if oneparty chooses not to participate, and the Parenting Coordinatorbelieves that further similar efforts are unlikely to be productive,or that the time constraints of the issue presented do not allowfor further similar efforts, the PC shall proceed to arbitratethe issue in accordance with the arbitration provisions of thisAgreement.

30. In the event one party maintains that issue is outside of the man-date and=or scope of the PC’s authority as stipulated in para-graphs 2 and 7 of this Agreement, the PC shall determine thematter taking into account the submissions of each parent.

31. The Parenting Coordinator shall advise the parents in writingthat they are now engaged in Arbitration. Prior to theArbitration, a meeting or conference call may occur to discussprocedural matters. The arbitration may be conducted in ahearing, a telephone conference call and=or by way of writtendocuments. The parties specifically waive their rights under26(1) of the Act for this purpose. Subsequent to the meeting=callcall to discuss procedures, the time and place of the arbitrationhearing, or in the case the arbitration is conducted by way ofwritten submissions and documents, the timeline for writtensubmissions and reply submissions, shall be provided in writingby the Arbitrator to the parents. In the case of an arbitration con-ducted in writing and by way of documents, submissions andreply submissions shall be made available directly to the PC(who then provides same to the parents) in the time-line determ-ined by the PC, previously indicated to the parents in writing.Time-sensitive issues shall require a shorter time-line as determ-ined by the Parenting Coordinator.

32. All communication during the arbitration shall be 3-way, be it byconference call, e-mail, fax or in meetings. All communicationswith the Arbitrator shall occur in the presence of the other party(telephone or meeting) and=or be copied to the other party. Thesame shall occur for all communications from the Arbitrator tothe parties.


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33. Should the parents decide that they wish to involve their lawyersin Arbitration, it may be by way of conference call, writtensubmissions and=or hearing, depending on the circumstances. Ifthey choose not to involve their lawyers they are waivingtheir right to do so.

34. The arbitration may proceed as notified, even if one parent failsto appear at the previously designated time and place, if one par-ent fails to provide his=her submissions in the time-line provided,and=or if one parent does not provide the sufficient retainer.

35. In her decision making role as Arbitrator, the PC may rely on anyinformation received including the PC’s written records duringattempts to resolve the issues up to that point. Notwithstanding,the parents shall provide full submissions, either verbal or in writ-ing, and not assume any prior information provided shall betaken into account in the decision-making process.

36. To the extent that information relied upon by the PC is infor-mation that the PC has received from the children, the partiesagree that they may not be privy to that information and disclos-ure of same to them by the PC shall be with the consent of thechildren, or at the PC’s discretion. The parties specifically waivetheir rights under 26(3) of the Act for this purpose. Each parent,by signing this Agreement, acknowledges that he or she has beenadvised that such may not satisfy the requirements of the Arbi-tration Act but that each agrees that such is in the child(ren)’sbest interests. Each waives his or her right, at any time in thefuture, to rely on this discretionary disclosure by the PC to setaside the PC’s decision on any issue and release his or her rightto make such argument.

37. Subject to #23, #24 and #26 prior to rendering a decision and intime for the parties to respond, the PC shall summarize for theparents the information received from third parties.

38. From time to time, given the exigencies of the situation and timeconstraints, it may be necessary to have a summary disposition ofa parental issue in order to accommodate the parents and the bestinterest of the children and avoid a further escalation of the par-ental conflict, which in turn poses a risk to children. Clause #32shall be satisfied. Accordingly, in those circumstances, the partiesaccept and acknowledge that the parenting coordinator has theauthority to make a summary disposition of the issue within


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the parameters of this Agreement hearing briefly from both par-ties in such a manner that the parenting coordinator deemsappropriate.

Expert Evidence

39. The parties specifically give the PC the authority to determine thenecessity of retaining professional(s) to provide expert opinionsrespecting any outstanding issue(s) and to direct the partiesaccordingly.

40. The parties agree that if arbitration is sought by either party ortakes places and issues of law arise, then, in her sole discretion,the Arbitrator may obtain independent legal advice to assisther in the determination of those issues. The parties shall haveaccess to any representations or opinions provided by suchcounsel. The cost of such counsel shall initially be borne by theparties equally subject to reapportionment by the Arbitrator.

Reporter

41. The parties do not wish to have a Reporter present at the arbi-tration of any issue and waive their right to have a transcriptof the proceedings. If, however, in the absolute discretion ofthe Arbitrator, the Arbitrator decides that a Reporter shouldbe present, then the Arbitrator may direct the parties to sharethe costs of the Reporter in such a fashion as the Arbitratordeems appropriate in all the circumstances.

The Award

42. The PC will, as soon as possible and no more than 30 days afterhearing the arbitration, render an award in writing that shall bedelivered to the parents and counsel by fax or e-mail trans-mission. The PC may provide an oral decision to both parentsin a meeting or conference call prior to releasing the writtendecision.

43. The PC’s Award shall be final and binding upon the parents andshall be incorporated in a Consent Order of the Ontario Superiorcourt of Justice (or the Superior Court of Justice, Family Courtor Ontario Court of Justice).


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REVIEWS & APPEAL

44. The parties have the right to review the Arbitrator’s Award inaccordance with s.46 of the Arbitration Act.

45. The parties have the right to appeal the Award on a question oflaw, with leave from the court as provided in s.45(1) of theArbitration Act and the Family Law Act R. S. O. 1990, c. F. 3.

46. In addition, the parties may appeal the Award on (check whereappropriate):

[ ] a question of law (without leave);[ ] a question of fact;[ ] a question of mixed fact and law; or[ ] none of the above.

TERMINATION OR WITHDRAWAL FROM THEPARENTING COORDINATION

47. Neither parent may unilaterally withdraw from this Agreementprior to the issues being resolved. With their joint consent inwriting, both parents may terminate this Agreement. Shouldone parent choose not to participate in the resolution of anyissue, the Parenting Coordinator may proceed and fulfill herdecision-making role.

The Parenting Coordinator may resign any time she determinesthe resignation to be in the best interests of the child(ren), or ifshe is unable to serve out her term, upon 30 (thirty) daysnotice.

48. The PC’s mandate terminates when:a. the term of service in this Agreement expires;b. the PC resigns or dies;c. the parties agree to terminate it in accordance with paragraph

14, ord. the court removes the PC.

49. The PC’s resignation or the parties’ agreement to terminate thePC’s mandate does not imply acceptance of the validity of anyreason advanced for challenging or removing her.


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CHILD ABUSE REPORTING AND RISK OF HARM

50. The Parenting Coordinator is required to report to the appropri-ate child welfare authority (i.e., Children’s Aid Society, CatholicChildren’s Aid Society, Jewish Child & Family Service, or NativeChild & Family Services) and=or other relevant authorities if shehas a reasonable suspicion that a child(ren) may be in danger ofharm and=or abuse.

51. The PC is obliged to notify the proper authorities if she has a‘‘reasonable suspicion’’ that a client may harm himself or herselfor the other parent.

FEES

52. The fee for Parenting Coordination is at a rate of $______ perhour. Fees are applied to all time expended in any=all pro-fessional activities, including administrative matters, associatedwith the PC process and=or arising from the PC process. Thisincludes time spent in reviewing documents and correspondence,voice-mail, e-mail, travel, meetings, and telephone calls with theparents, their counsel and other professionals involved. Alsoincluded are any unpaid fees charged retroactively from the timethat services are initially requested and the file is opened. Thisalso includes disbursements paid to collateral sources for verbaland=or written reports and agency=hospital reports. Fees shallbe applied to time required for deliberation and writing of memosand arbitrated decisions. Fees for testifying in court, preparationtime for testifying and related travel time shall be paid for by theparty that calls the PC to testify. Court-related fees (i.e., prep-aration time, attendance and travel) shall be obtained by wayof retainer in advance of any services rendered.

53. There is considerable cost to opening the file and continuingscheduling issues with both the parents and collateral sourcesas required. A non-refundable administrative fee of $payableby each parent, or in accordance with the proportions that theyhave agreed to, shall be applied once the referral has beenaccepted. Accordingly there shall be no further charges for thePC and administrative assistant’s time in connection with settingup the process and ongoing scheduling.


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54. Record keeping requirements make it necessary to log and makea record of each and every e-mail, telephone call and=or message.For this reason a minimum fee (.1 or 6 minutes) may be chargedfor each telephone and e-mail contact. These charges shall notapply to brief contacts about scheduling.

55. Subject to the terms of paragraph 36 and 54, the parents shallshare fees equally, unless indicated otherwise. Each parent shallprovide an initial retainer of $______. Parties shall be advisedin advance when further retainer is required. A minimum retainer(security deposit) of $______ (2 hours) per parent shall be main-tained in the account at all times, to be returned to the parents atthe end of the PC’s tenure, less any balance owing by either party.If the above terms are not satisfied, [arbitrator’s name] shall post-pone all services until the retainer terms are met. Non-payment offees shall be grounds for the resignation of PC, although [arbitra-tor’s name] shall first give notice of her intention to resign andthen allow either party a reasonable period of time to obtain acourt order requiring this payment before resigning. In the periodafter the notice is given, [arbitrator’s name] need not provide anyservices to the parents until her retainer is fully maintained.

56. If one of the parties fails to provide his or her fees as set outabove, the Parenting Coordination may proceed and the feesfor same may be paid by the other party. Such shall not bedeemed to affect the ability of the PC to perform her arbitrationfunction for the duration of her tenure. Any such payment maybe enforced by the party who overpaid his or her share, in Court.An Award of costs may be made. This award shall take intoaccount the retainer that has been paid and make the necessaryadjustments.

57. Regular statements of the account detailing the date, service, timeand hourly rate shall be provided. Your insurance company maynot cover all of the services, although insurance company policiesvary. If you require an additional statement for insurance pur-poses an administrative fee shall be charged for the provisionof an additional statement.

58. A client shall be billed for an appointment in which there is lessthan 24 (twenty-four) business hours’ notice prior to cancellationby that client, except for an appointment scheduled for 8:00 a.m.and=or after 4:00 p.m., in which case 48 (forty-eight) businesshours notice is required prior to cancellation. A client shall be


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responsible for bills arising from his or her own cancellationwith insufficient notice and=or failure to attend a scheduledappointment.

59. Notwithstanding this Agreement with respect to payment for ser-vices as stated above, the PC may modify this allocation if shefinds that one parent is using her services disproportionatelyand, as a result, is causing the other parent greater expense. Inaddition, either parent may request that the fees be reallocatedat any time during the Parenting Coordinator’s term of appoint-ment. Any decision shall follow the same process as required forthe arbitration function of the Parenting Coordination.

60. In addition to reallocating fees, the Parenting Coordinator shallhave the authority to impose an award of costs if the PC isrequired to arbitrate any issue. In addition to an award of costs,the PC shall have the authority to require one party to reimbursethe other for any costs related to an Award, any expenses he=shemay have suffered as a result of any breach of the ParentingPlan, and=or any breach of an arbitral award of the ParentingCoordinator.For example, if one parent incurs additional day care expenses asa result of the other parent failure to pick up the child(ren) ontime, then the Parenting Coordinator shall have the authorityto require that parent to compensate the parent who incurredthe expense. Or, for example, if one parent has to cancel a sched-uled trip for the child(ren) that was pre-paid, as a result of theother parent’s default of any terms of the Agreement or thebreach of an arbitral award (e.g., delivery of the notarized per-mission letter), then the defaulting parent shall reimburse theother parent for any loss=expenses occasioned by the default orbreach.

GRIEVANCES

61. If either parent has a grievance about the way the ParentingCoordinator is dealing with him=her or any issue, he=she (andwith their lawyer if they prefer) shall discuss their concern inperson with the Parenting Coordinator before pursuing it inany other manner. If, after discussion, the parent is not satisfiedthat the grievance has been dealt with satisfactorily, then he=she


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shall submit a written letter detailing the grievance to theParenting Coordinator, to the other parent and to any lawyersrepresenting the parents and=or child(ren). The ParentingCoordinator shall provide a written response to the parentsand lawyers within twenty (20) days.

62. The Parenting Coordinator shall then meet with the complainingparent and his=her lawyer to further discuss the matter.

63. If the grievance is not resolved after this meeting, the complain-ing party may file a motion on notice to the other parent withthe Court to remove the Parenting Coordinator as per theArbitration Act. The motion shall proceed on the writtendocuments submitted by both parents and the ParentingCoordinator, unless the Court Orders a hearing.

64. The Court shall determine if the Parenting Coordinator shouldbe replaced and shall determine who shall be responsible forany portions of the Parenting Coordinator’s time and costs spentin responding to the grievance and the Parenting Coordinator’slawyer’s fees, if any.

65. An award shall be implemented and adhered to during thetime the grievance process is in effect. Either party may applyto the Court to obtain a consent Court order implementing orinterpreting the terms of the Parenting Coordinator’s Awards(via Form 14C).

66. Neither party shall complain about the Parenting Coordinatorto the Parenting Coordinator’s licensing board without alsocomplying with the above-noted grievance procedure.

WAIVER OF PARENTING COORDINATOR’S LIABILITY

67. The parties waive any claim or right of action against theParenting Coordinator for any matters arising out of the in goodfaith functions performed by her under this Agreement.

INDEPENDENT LEGAL ADVICE

68. Each of the parties confirms that he=she has received inde-pendent advice. Attached to this Agreement is the certificate of


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independent legal advice that was provided to each party undersubsection 59.6(2) of the Family Law Act.

69. Both parties:a. understand their rights and obligations under this Agreement

and the nature and consequences of this Agreement;b. acknowledge that they are not under any undue influence or

duress; andc. acknowledge that they are both signing this Agreement

voluntarily.

Dated: ______________ __________________ ______________Solicitor for Mother Mother

Dated: ______________ __________________ _______________Solicitor for Father Father

CERTIFICATE OF INDEPENDENT LEGAL ADVICE

I, ______, Barrister & Solicitor, have reviewed the attached Parent-ing Coordination Retainer Agreement (the ‘‘Agreement’’) and havefully explained to my client______ the meaning and intent of theAgreement and have given the client independent legal advice priorto the Agreement being signed. I have also explained to my client thatthe Agreement is a ‘‘domestic contract’’ within the meaning of theFamily Law Act, and as such a court may set aside the Agreementunder various circumstances about which I have informed my client.In my opinion, my client understands the nature and consequences ofthis Agreement, and is not signing this Agreement as a result of anyundue influence placed upon the client by any person. I hereby con-firm that I am satisfied that my client is fully able to participate in theParenting Coordination and is signing the Agreement voluntarily.

________________________ ______________________Date Lawyer

DECLARATIONS OF THE PARENTINGCOORDINATOR=ARBITRATOR

I, [Parenting Coordinator’s name] confirm the following matters:


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(a) I shall treat the parties equally and fairly in the arbitration, assubsection 19(1) of the Act requires.

(b) I have received the appropriate training approved by theAttorney General.

Check either (c) or (d):(c) The parties were separately screened by me for power imbal-

ances and domestic violence and I have considered the resultsof the screening and shall do so throughout the arbitration, ifI conduct one.

(d) The parties were separately screened for power imbalances anddomestic violence by someone other than me and I have con-sidered his or her report on the results of the screening andshall do so throughout the arbitration.

________________________Date

________________________ __________________________Witness Parenting Coordinator=Arbitrator


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parenting coordination in canada: an overview of legal and practice issues

Documents