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Posts from the ‘Parenting Coordinator’ Category

Can Mom’s New Partner Participate in “Family” Counselling if He’s Subject to a Restraining Order?

 

Can Mom’s New Partner Participate in “Family” Counselling if He’s Subject to a Restraining Order?

The father and mother, now separated, had two children together.  The father, who worked as a taxi driver, had full custody of them and received no child support from the mother.

The mother had a new partner, Mr. V., who had apparently been abusive not just toward her and the children, but towards the father as well.  As the Court put it, the litigation record was “replete with allegations of abuse perpetrated by Mr. V.” against the father, mother and their children.

On two occasions, the father refused to let the mother have access to the children, despite a Court Order requiring him to do so.  In the face of those two incidents, the mother went straight to court and successfully obtained another Order which held the father in contempt.   The Order also included a provision requiring the mother, father, and children to participate in counselling, and – quite unusually — added that Mr. V. was to participate in the counselling as well.  Moreover, the father was ordered to fully co-operate with all recommendations made by the counselor, and in connection with Mr. V’s participation as well.

Among other grounds, the father successfully appealed the stipulation as to counselling, in part.

Firstly, the Appeal Court observed that in requiring the mother’s current (and allegedly abusive) new partner at the counselling, the trial judge had likely not considered the children’s best interests.   But even from a practical standpoint, that term of the Order was untenable because Mr. V. was the subject of a restraining order, which had been folded into the Order that granted the mother access to the children.  That restraining order prohibited Mr. V from being within 500 meters of where the mother was exercising her access rights. The Court found it was an actually an error in law to order counselling that involved Mr. V.  in the face of an order that restrains his ability to be anywhere near the children.

The Court therefore set aside the part of the Order relating to Mr. V’s involvement, and merely directed that the father was ordered to “attend and co-operate with the counselling process.”

In other words:  The Court concluded that it was a bad idea to have the mother’s new boyfriend at the fractured family’s counselling sessions – particularly since he was alleged to be abusive to everyone else attending, and since he was subject to a restraining order. Perhaps not a surprising outcome.

For the full text of the decision, see:

Ralhan v. Singh

At Russell Alexander Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at RussellAlexander.com

 

Parenting Coordinators – Can Courts Delegate to Them?

delegation

Parenting Coordinators – Can Courts Delegate to Them?

I have written before about Parenting Coordinators, and the role they can play as part of a child-focused dispute resolution process. Typically trained as social workers, family therapists or psychologists, and lawyers, they help separated and divorcing parents focus on the needs of their children. In particular, their special mediation training allows them to assist parents to:

1) successfully implement the court-approved Parenting Plan that governs their rights and responsibilities in connection with their child; and

2) develop better problem-solving and communication skills.

But how far does their role go? Can courts delegate actual judicial decision-making functions to Parenting Coordinators, in order to by-pass the need to repeatedly bring parenting-related disputes back before the court?

Two fairly recent Ontario cases say the answer is “No”. In both Marques v. Raulino and McCall v. Res, the courts addressed a number of main issues between the parties, but each touched briefly on what is nonetheless an important question: The extent to which a Parenting Coordinator is entitled to resolve disputes about legal custody, mobility, parenting schedules, or anything other than minor or temporary issues.

In the Marques v. Raulino case, the parents never married but had a child together. They had a difficult relationship, and this certainly did not improve after their separation. In particular, the mother claimed the father was impossible to deal with because he had a bad temper, would routinely yell and belittle her, and frequently smoked marijuana. The father countered by saying that the main source of their arguments related to the mother’s messiness and disorganization, and her failing to provide a safe environment for the child. On a few occasions, the police had to be called.

Although the court had made various orders to give structure to the parents’ care and custody of the child, the concern remained that they would be able to resolve any day-to-day disputes. A report by the Office of the Children’s Lawyer had recommended that they should consult with a Parenting Coordinator, “if they are unable to jointly make a parenting decision.” The father brought a motion for a temporary order asking the court to formally implement that recommendation in those terms.

The court decided that it could not do so. To the extent that this purported to give the Parenting Coordinator final decision-making authority, it was an impermissible delegation of the court’s judicial role. If the parties did not agree on an issue, they had no choice but to return to the court for its resolution.

Similarly, in McCall v. Res the court came to the same conclusion. There, the mother had asked the court to appoint a Parenting Coordinator, and suggested that he or she could help both parents address, out of court, any issues that might arise between them. This way, according to the mother, they could resolve those issues more expeditiously and more cost-effectively than having to return to court each time.

The father objected, claiming that a Parenting Coordinator would merely add another “layer” to the process, and it was better that the parents in this case communicate directly with each other.

The court concurred with the father’s general concerns, but granted the mother’s request to appoint a Parenting Coordinator nonetheless. It stated that he or she could certainly help the parties reach agreement on their issues if possible, but emphasized that the Parenting Coordinator “will not have final decision-making authority” in the event that is was not. That role was to be left in the court’s hands.

While it’s a worthy goal to try to keep parties’ disputes out of court to the extent possible, these cases confirm that broadening the Parenting Coordinator’s role is not the way to do it. Besides, it’s always better that couples try to avoid reaching an impasse in the first place, especially those that call for third-party intervention in the form of a court, mediator, Parenting Coordinator, or other.

For the full text of the decisions, see:

Marques v. Raulino, 2013 ONCJ 477 (CanLII)

McCall v. Res, 2013 ONCJ 254 (CanLII)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com

Parenting Coordinators Are Still a Good Idea … But the Court Declines to Force It

 

 order

Parenting Coordinators Are Still a Good Idea … But the Court Declines to Force It

A few weeks ago, I talked about Parenting Coordinators, and their increasingly important role in Ontario family law. Couples in dispute on certain minor issues relating to parenting time, access schedules, the management of a child’s health care, religious and educational instruction, and general communication between parents, can be referred by a court to a Parenting Coordinator who can assist with the resolution.

However, the recent Ontario case called Varcoe v. Varcoe shows that courts can only go so far in forcing or even encouraging parents to avail themselves of this valuable dispute-resolution resource.

In that case, the parents had been to court to try to determine their various issues relating to custody of and access to their children. However, they went back to court because resulting court order neglected to address one of the items that the mother requested – specifically that the father should be forced to sign a Parenting Coordination Agreement submitted by the proposed Coordinator. The use of a Coordinator was one of the items the parents had agreed to in their Minutes of Settlement; however in making its subsequent order based on those Minutes, the court had incorrectly assumed the issue was abandoned.

The mother indicated that she had already provided the necessary “paperwork” to the proposed Parenting Coordinator as required, but the father had not done so. She therefore asked the court to order the father to do so within five days.

The court declined to order the father to submit his paperwork and sign. The court explained that the material the mother had filed with the court was deficient; most notably she had neglected to file the Parenting Coordination Agreement itself and did not state how long the father had been in default of his negotiated obligation to sign it. There was also nothing to suggest that there was some immediate crisis concerning the children that mandated the intervention by the chosen parenting coordinator.

Instead, the court pointed out that if the father was refusing to sign the Parenting Coordination Agreement then this amounted to a straightforward breach of a prior court order, for which the mother had other established procedural remedies at her disposal, including bring a motion to strike the father’s pleadings entirely. The court would not force the father’s hand in this case.

For the full-text of the decision, see:

Varcoe v. Varcoe, 2014 ONSC 328 (CanLII) http://canlii.ca/t/g2qpw

See also related decision:

Varcoe v. Varcoe, 2014 ONSC 1162 (CanLII) http://canlii.ca/t/g3rnl

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.

Is a “Parenting Coordinator” Right for You?

parenting coordinator

Is a “Parenting Coordinator” Right for You?

In Ontario family law, “Parenting Coordinators” are an increasingly-popular concept; a quick search for that term on CanLII, the Canadian Legal Information Institute’s website containing court judgments from across Canada, shows almost 150 Ontario instances in which a judge has referenced that term, almost all within the past 5 years.

So what are Parenting Coordinators? And what do they do?

Generally consisting of individuals trained as social workers, psychologists and sometimes lawyers, Parenting Coordinators are appointed to help separated parents resolve any disagreements they have over the parenting of any children they share. Their mandate embraces a broad range of topics, but is relegated to the more minor issues that may crop up between disputing parents, such issues around: established parenting schedules (such as drop-off times, parenting and access time, and vacations); decisions relating to health care (including medical, dental, and therapy or counselling); and educational decisions (such as choice of school, tutoring, summer school, enrichment and extra-curricular activities, and religious instruction). Perhaps most importantly, a Parenting Coordinator can assist couples to communicate better with each other and with the children, by essentially serving as arbitrators.

Parenting Coordinators are appointed under a Court Order, or else by way of a Parenting Plan, Separation Agreement, or Arbitration Award. Their role is to help with the implementation of existing orders and agreements – not to help create them. They employ an arsenal of tools to help parents resolve their disagreements, including education, coaching, and mediation. If these problem-solving methods fail, then a Parenting Coordinator has the authority to act as an arbitrator.

In Ontario, a judge is not authorized to order parents to use a Parenting Coordinator; rather, both parents must agree and give their consent. But once that consent is in place, a court may order one or both parents to execute paperwork or otherwise comply with the underlying contract that gives the Parenting Coordinator his or her authority and mandate to help resolve their disputes.

Do you have questions about Parenting Coordinators, and whether they might be right for your situation? We can help.

At Russell Alexander, Family Lawyers our focus is exclusively mily law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.