A recent decision of Justice Lene Madsen highlights many of the issues addressed daily by family mediators, arbitrators and parenting coordinators, and also confirms that the courts have no jurisdiction to order parenting coordination in Ontario.
Here is a summary of the decision:
- It is a 159 paragraph decision resulting from a motion to change the residential schedule of a 13 year old, change child support, order retroactive child support and finalize an incomplete pension transfer. The hearing took 10 days and heard from 11 witnesses. Mr. Evans was self represented.
- The parties separated over ten years ago, and had a final order for parenting and support among other things. The conflict between them had not abated in that time.
- The decision is helpful for arbitrators looking for a good template for addressing witness credibility. Justice Madsen makes her credibility findings at the very start, noting that she preferred Ms. Evans’ evidence to Mr. Evans’ for reasons set out.
- Mr. Evans sought to change decision-making from shared to sole; Mr. Evans sought to keep shared decision-making but obtain a more effective dispute resolution mechanism and asked the court to amplify the existing provisions for parenting coordination to make them more robust. (The parents had tried parenting coordination twice already without success.)
- The court reiterated the long-established principle that shared decision-making is not appropriate where the absence of clear decision-making authority will lead to interminable power struggles, impasse and paralysis.
- Madsen J. provides a careful analysis of the factors to consider when changing the terms of a parenting order. She puts her conclusions first—that there has been a material change affecting parenting, that the parents have been unable to effectively make joint decisions for the child and instead they have been locked in conflict, and that the evidence shows that Mr. Evans’ communications have been angry, insulting and destructive. Other factors she considered were:
- The court noted that Mr. Evans consistently misinterpreted the final order’s terms and would not relinquish his flawed interpretation; he routinely scheduled activities for the child on Ms. Evan’s parenting time; he is not always child-focused but rather focused on being ‘right’ and Ms. Evans being ‘wrong’, and on getting his way; and he regularly put the child squarely in the conflict between the parents. The child’s counsellor gave evidence that the child expressed upset and sadness about this.
- As well, Justice Madsen references how Mr. Evans becomes angry and belligerent rather than trying to resolve conflicts peacefully, and that there is a history of threatening behaviour that has left Ms. Evans anxious and fearful in Mr. Evans’ presence.
- Of note to family mediators, Madsen J. notes that the Divorce Act authorizes her to order parties to mediation, but she declines to do so noting that this is not an appropriate case for mediation given the facts. She notes that Mr. Evans had used prior dispute resolution attempts to bully Ms. Evans, and that Ms. Evans expressed fear and anxiety about dealing with him directly. “He has not shown that he can work positively to resolve issues through a discussed-based process.”
- She also clarifies that she has no jurisdiction to order parenting coordination, given the language of s. 2 of the Divorce act, which includes ‘negotiation, mediation and collaborative law’ but not ‘parenting coordination’. “In my view, this is for good reason, as those processes include a decision-making component. This court cannot delegate its decision-making authority without the consent of the parties”. The court cited L. v. M.F., 2023 ONSC 2885, M.(C.A.) v. M.(D.), 2003 CanLII 18880 (ON CA), 67 O.R. (3d) 181 (O.C.A.), K.M. v. J.R., 2022 ONSC 111), and Michelon v. Ryder 2016 ONCJ 327. Some further analysis on the facts of this case would have been helpful given the parties’ order already included a provision for parenting coordination and they have used the process in the past. It is not clear whether the parties have a signed parenting coordination agreement, nor whether the statutory requirements for parenting coordination (family violence screening, etc) were met. In any event, the court’s ruling that parenting coordination cannot be ordered by a court without the consent of both parents is welcome.