The (Unique) Perils of The PC Process

The parenting coordination process is a difficult one for both clients and PCs. Invariably there is one parent who is more committed; or is driving the process. In addition, once the arbitration phase of the process has been utilized, the losing parent usually disengages altogether. Throw in the fact that many parents have not been fully educated on the process before committing to it in writing and you have the makings of an unsuccessful process. Lawyers, judges and parents need to ensure they fully understand the PC process, whether the named PC does open versus closed PC and the details of the named PC’s agreement before the commitment is made to a process with a one to two-year time commitment.

The case law in the area of mediation-arbitration in general and PC specifically adds to the confusion. In the recent Ontario Superior Court of Justice case Lopatowski v. Lopatowski, Justice Gray was faced with two parties who had committed to the PC process in final Minutes of Settlement and a court order incorporating the Minutes of settlement. Both parties had counsels who were familiar with the PC process. Three PCs were named from which the parties were to select one. Neither the PC Agreement, nor any of the terms outlined at Section 59.7 of the Family Law Act formed part of the Minutes of Settlement. After the first PC advised she did not take arbitration files, a motion was brought by the husband as the wife would not agree to another PC. A second order provided for the choice of two PCs and the chosen PC provided her PC agreement for review. At the point the wife determined she would not proceed with the process and the husband moved for contempt. Counsel for the wife argued the consent orders referring the parties to PC were invalid and unenforceable. Although Justice Gray determined the wife was in the wrong court and that the matter was for the Court of Appeal, he then went on to comment that the court did have jurisdiction to make the Orders on consent for the parties to engage in the PC process. Justice Gray referred to Michelon v. Ryder where Justice Kurz stated there is no express statutory authorization to allow a court to include a term requiring arbitration of disputes even on consent and respectfully disagreed with that conclusion. Justice Gray also cited the decision of Justice Nelson in Horowitz v. Nightingale where in it was found that Minutes of Settlement do not constitute an arbitration agreement as it is really just an agreement to agree and that every secondary arbitration must contain the provisions set out in the regulations of the Arbitration Act. Justice Gray again respectfully disagreed with this approach and stated the parties had fundamentally agreed that parenting disputes would be dealt with by a PC, both parties had counsel and counsel would have understood the terms of the PC agreement which are widely used in Ontario.

As the PC process becomes more popular with lawyers, judges and clients, it is incumbent on those of us who practice in this area to ensure that it moves forward as a successful process for high conflict families following separation. On November 20, 2018 FDRIO will be holding the Inaugural Parenting Coordination Institute. This daylong conference will be Day 2 of the annual FDRIO conference. We have gathered experienced practitioners from across Canada to speak on best practices, varying practices and processes, new ways of doing PC in British Columbia and PEI and the ins and outs of arbitrating PC issues. We are hoping that this day will attract counsel and practitioners to dialogue about the PC process as it is now and ways to make it a more effective experience for high conflict families.

 

The above article was also featured on the Ontario Bar Association (OBA) website, under their “Recent Articles” section (September 18, 2018).

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