Law Times

Page 12 February 26, 2018 • Law Times www.lawtimesnews.com Designation for parenting co-ordinators will add stability BY MICHAEL MCKIERNAN For Law Times A new professional des- ignation for parenting co-ordinators will help bring certainty to the growing field for both consum- ers and practitioners, says a se- nior member of the group that created it. "It was in many ways a bit of a Wild West in Ontario be- fore," says Hilary Linton, vice president of the Family Dispute Resolution Institute of Ontario, which began offering its new certified specialist program in parenting co-ordination in 2017. The technique is generally used to deal with disagreements between the parties after a final parenting agreement has been reached or a court order is al- ready in place. Even after settling some of the big-picture issues in litigation, Linton explains, dis- putes over smaller details such as school choices, vacation plans, after-school activities and many others can drag on for years. Parenting co-ordinators trace their roots to certain states south of the border in the early 1990s, according to Linton, who adds that Ontario lawyers and judges began embracing the concept more than a decade ago. Although FDRIO's voluntary program is not a prerequisite for the acceptance of retainers in Ontario, Linton says it boosts the options for parenting co- ordinators in the province who want extra training. "There was a lot of existing material out there, but nothing was specific to Ontario. This sets a pretty solid standard and has a community of supportive profes- sionals behind it," she explains. "This is very challenging work, and it didn't seem right to me that professionals out there doing some of the most difficult jobs in family law had the least amount of guidance to support them." Linton says the need for spe- cific guidance was enhanced be- cause the evolution of parenting co-ordination in Ontario has followed an idiosyncratic route compared with other jurisdic- tions. While many U.S. states refer- ence the process specifically in their family law legislation, On- tario law makes no mention of it. Instead, private contracts between parents and parenting co-ordinators dictate the terms of the process. Parenting co-ordinators in Ontario will generally try to me- diate a settlement over the issues before making a binding decision via arbitration if one is required, which is in turn recognized as a form of secondary arbitration under the Family Law Act. "The other thing we noticed was a growing amount of case law evidencing the need for edu- cation," Linton says. In some cases, she says, dis- puted decisions indicated the parenting co-ordinator had an inadequate grasp of the arbitra- tion process, while others sug- gested the parents lacked under- standing of the agreements they were getting into. In the recent case of Jerova v. Benincasa, the father of a four- year-old child appealed a par- enting co-ordinator's decision to side with the mother on the issue of which elementary school their young boy should attend. The appellant argued, among other things, that the parenting co-ordinator was biased against him and ignored evidence. "I get the clear impression that the appellant and his coun- sel, during the arbitration por- tion of the PC process, insisted on a very strict adherence to the rules of procedure and evidence that one would expect in a court proceeding. Unfortunately for the appel- lant, that is not the dispute resolu- tion process that he agreed to en- gage in," Ontario Superior Court Justice Julie Audet wrote in her decision dismissing the appeal. "The role of this Court, in the context of this appeal, was to en- sure that he was treated equally and fairly, and that he had an op- portunity to present his case and to respond to the respondent's case within the procedural framework clearly set out in the PC Agreement. I find that he did," she wrote. Elizabeth Hyde, a former chairwoman of the Ontario Bar Association's ADR section and an instructor of the FDRIO pro- gram, says the legal intricacies of Ontario's particular brand of parenting co-ordination may have contributed to the growth in demand for practitioners who are also qualified as a lawyer. Historically, she says, parenting co-ordination was conducted predominantly by social workers. "We tend to spend a bit less time on the mediation and con- sensus-building phase. The last people who came to me told me they wanted a lawyer who could interpret the law and make a quick decision so that they could move on with their lives," Hyde says. "That's easier for lawyers be- cause of the greater level of com- fort we have with the arbitration process." Linton says the individual needs of the parents in dispute will inform their choice between a parenting co-ordinator with a legal or social work background. "Every case is different, and some people respond better to a therapeutic approach," she says. "When you have greater clini- cal issues at play, it's going to be more valuable to have a person with experience in that area. "The most important thing is that everyone understands what they're getting into right from the very start," Linton adds. Elizabeth Hyde says the legal intricacies in Ontario may have contributed to the growth in demand for practitioners who are also qualified as lawyers. 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