A Good Case for Family Mediators: Justice Sherr in L.B. and P. E.

As family mediators, we work “in the shadow of the law”. Our job is to help parties reach agreements that are better for them than their alternatives… meaning mediators must know what a court would do with a given situation.

We also must put the interests of children first, and decline to mediate parenting outcomes that we believe will not operate in the best interests of the child, based on the facts and the case law.

This requires us to stay current in the law and read decisions of judges.

Photo by Hilary Linton

One useful recent case was written by Justice Sherr in L.B. and P. E. (March , 2021).

This was a trial about parenting and child support for a 6 year old.

Justice Sherr writes about the new language in the Children’s Law Reform Act, replacing “custody” with “decision making” and “access” with “parenting time”. The decision cites the important parts of the legislative changes mediators should be familiar with.

In the decision, the court describes the litigation history of the case, which is typical of many cases, and good for mediators to know about. For instance, the parties had appeared before the case management judge several times before their trial, obtaining among other things a detailed order for transitions for the child and parental communication. The trial judge notes how helpful this kind of detail was for the parents in reducing conflict between them.

The decision is written in plain language, making it a good guide for mediators to follow in their own writing styles. Justice Sherr describes the evidence of both parties and explains why he believes one over the other. It is always helpful for mediators to see how the courts assess credibility. Factors that mediators also pay attention to are important in assessing who is the more compelling witness: how detailed the evidence is, the emotionality and demeanour of the witness, and how the parties interacted together in the court process, and how compliant they were with court orders and procedural requirements.

Justice Sherr provides extensive reference to the evidence he relies on to find that one parent is more believable than the other, and mediators should read this part of the decision carefully to understand how the court might assess a matter.

The decision also addresses the impact of domestic violence, including verbal and financial abuse, on findings of credibility and also on substantive decisions about parenting.

The case law analysis is extremely useful for mediators, who are often mediating parenting issues. Justice Sherr recites the case law that makes clear that mutual trust and respect are basic requirements for joint decision-making responsibility to work effectively. There must be a reasonable measure of communication and cooperation so that the best interests of the child can be ensured. Likewise, financially supporting one’s children is an important part of being a parent, and the failure to do so mitigates against joint decision-making.

The court reviews all the key cases on shared parenting, including where parallel parenting can be useful tool for settlement, namely where both parents sincerely want to be involved with their children for the benefit of the children. The court also notes the limits of this model:

“However, a sad reality of family law is that there is a certain group of parents who seek such orders for the purpose of asserting control over their former spouse and children. These parents tend to be rights-based, overly litigious, unbending and the best interests of the children can be secondary considerations. For such parents, a parallel-parenting order can be a recipe for disaster. It can become a springboard for that parent to assert control and make the lives of their former partner and children much more difficult”.

Justice Sherr goes on to apply the facts to the law, finding that shared decision-making would not operate in the best interests of the child in this case, granting the mother sole decision-making responsibility.  He also applies the best interests test to the parenting time schedule, detailing all the factors that should be analyzed when applying that test and establishing a parenting time plan that increases the time that the child spends in the care of his father.

The decision is very helpful for mediators in understanding how courts analyse requests for retroactive child support. Again, there is a useful review of the legal test for retroactive support—including the reasons for the delay in asking for support, the conduct of the payor parent, circumstances of the child and the hardship that a retroactive award may entail for the payor. The full section is well worth reading to gain an appreciation for these factors— which will be very familiar to mediators.

Finally, the case is a useful reference for mediators if a party is seeking to have income imputed to the other. Because the implications of getting it wrong are so significant—for parties and children– we generally discourage the mediation of imputing income. The court analyses the legal considerations for imputing income, referencing s. 19 of the Child Support Guidelines, the key case law and the facts before it. The court declined to impute income to the payor where he was already, a payor has no obligation to earn additional income doing that work if he no longer wanted to do it. Likewise, income was not imputed to him on the basis that he could rent out part of his house. This is an easy-to-read decision that will provide mediators with an up-to-date resource of some of the issues we mediate the most.

About Hilary Linton

Hilary Linton is a Toronto lawyer, an accredited family mediator, an experienced family arbitrator and an alternative dispute resolution trainer.