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Coordinator in the Province of Ontario
of the Parenting Coordinator as a referee for separated or divorced parents in
conflict. Particularly of value in high conflict situations, the Parenting
Coordinator provides an alternate dispute resolution mechanism to the constant
return to lawyers or the Court.
process of resolution involves two components; a non-decision making phase and
in view of an impasse, a decision making phase. Due to these two components,
Parenting Coordination is also referred to as “med-arb” as in the
combination of “mediation” and “arbitration”. Typically parents will
attempt to mediate their dispute with the help of the Parenting Coordinator
before implementing the arbitration phase wherein the Parenting Coordinator is
empowered to make binding decisions.
response to issues raised with concern to religious tribunals, the Arbitration
Act of 1991, was amended in 2006 with an implementation date of May 1, 2007.
Effectively, for a family arbitration to be enforceable now, it must be
conducted in accordance with the law of Ontario or of another Canadian
jurisdiction. Further family arbitrations, agreements and awards must also be
consistent with the Family Law Act, which shall prevail in case of conflict.
particular importance to family arbitration in the Province of Ontario is the
distinction between primary and secondary arbitrations.
arbitrations occur where there is no prior agreement to arbitrate. Further,
primary arbitrations are otherwise “unenforceable unless the arbitration
agreement is entered into after the dispute to be arbitrated has
arisen” (Family Statue Law Amendment Act 2006, S. 59.4). A party cannot be
held to arbitrate if the agreement to arbitrate predates the issue to be
arbitrated even if the parties had agreed to do so. Thus setting out arbitration
as a mandatory alternate dispute resolution mechanism in a marriage contract or
cohabitation agreement in view of separation is no longer enforceable under the
new legislation. Further, parties subject to primary arbitrations are required
to obtain Independent Legal Advice (ILA); someone other than the arbitrator must
screen them separately for power imbalances and domestic violence; and they must
make full financial disclosure.
arbitration agreements entered as a result of a separation agreement will be
treated as secondary arbitrations and are subject to different conditions. Here
the matters to be arbitrated are identifiable and can be set out in the
separation agreement, if only in broadly stated terms. Given the secondary
arbitration flows from the separation agreement and ILA was obtained then, this
is no longer required at the outset of a secondary arbitration. Further, while
the parties still must be screened for power imbalances and domestic violence,
the arbitrator may carry this out.
role of the Parenting Coordinator likewise flows from separation agreements
where there is a mutual agreement to arbitrate disputes as they arise
thereafter. Still, it seems, that in the Province of Ontario, Judges cannot
order Parenting Coordination without consent of the parties.
regard to the screening for power imbalances and domestic violence, the Act is
silent on the course of the arbitration in the event there are positive
findings. However, the arbitrator is to consider the results of the screening
throughout the arbitration process.
addition to the above, changes in legislation exclude the parties subject to
family arbitration from opting out of certain clauses, and in particular, equity
and fairness (s.19) and application of law and equity (s. 31) to name but a few.
However, to enable Parenting Coordination to exist, the parties must opt out of
s.35, Mediation and Conciliation where opting out thus permits both the
mediation, the non-decision making component, to pre-exist the arbitration, the
secondary arbitrations can proceed on the basis of ILA obtained when signing the
separation agreement, good practice suggests parties should still obtain ILA
regarding the actual Parenting Coordinator's agreement.
There will likely be significant variations between the terms of
reference of Parenting Coordinator agreements.
in all, the changes to the Arbitration Act usher in a new era of Parenting
Coordination where parties, lawyers and service providers must clearly specify
the terms of the Parent Coordinator Agreement.
To view my Parent Coordinator Agreement, go to and see link at bottom:
Direnfeld, MSW, RSW
For information on Direnfeld's book, Raising Kids Without Raising Cane, click here.
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