Court Information

Ontario Court of Justice 491 Steeles Avenue East, Milton, ON L9T 1Y7

Court File No.: 340/11 Date: May 24, 2016

Parties

Applicant: Amanda Carole Michelon Counsel: Steven Benmor

Respondent: Timothy John Ryder Jr. Counsel: Self-represented

Endorsement

Background

[1] The parties to this proceeding have reached a comprehensive agreement on a final order following a case conference. That result is an excellent one for all involved. It meets the primary objective of the Family Law Rules, as set out in Rules 2(2)-(5). For this reason the court takes no pleasure in questioning two of the paragraphs of the draft order agreed to by the parties.

[2] Paragraph 44 of the consent draft order compels the parties to appoint a parenting coordinator. It reads as follows:

The parties shall appoint Jared Norton as their Parenting Coordinator in accordance with section 59.7 of the Family Law Act and the Arbitration Act for a period of 2 years. Each party shall pay for his or her intake session with the Parenting Coordinator. Each joint session with the Parenting Coordinator will be a shared expense. The Parenting Coordinator shall facilitate communication of the parties and have the authority to resolve by mediation or arbitration only the enumerated issues set out on paragraph 45 herein in accordance with a "secondary arbitration" as defined in section 59.7 of the Family Law Act. If a dispute arises that cannot be resolved with the agreement of the parties and where the Parenting Coordinator is asked to render an arbitral award, the Parenting Coordinator will determine costs for each such award. The parties shall enter into the Parenting Coordinator's standard agreement within 30 days. Neither party objects to the parenting Coordinator acting as arbitrator based on section 35 of the Arbitration Act.

[3] The following paragraph of the draft order sets out a list of 14 issues that the parenting coordinator will have the jurisdiction to address.

[4] The draft order incorporating those terms was submitted to me by way of an in-chambers 14B motion. When I reviewed the draft order, I questioned this court's jurisdiction to include a term requiring the parties to submit to secondary arbitration in an order. I asked Mr. Benmor to explain my jurisdiction to make such an order.

[5] Mr. Benmor submitted an affidavit in which he stated:

Since the introduction of section 59.7 of the Family Law Act ("secondary arbitrations"), the family bar has embraced Parenting Coordination and such clauses have been included in hundreds of consent orders and Separation Agreements.

[6] Mr. Benmor then offered me the following authorities and/or arguments in support of his position:

a. In Sehota v. Sehota, Rogers J., in Mr. Benmor's words, "…validated the use of Parenting Coordination when she stated 'the services of parenting coordinators have become an important part of the family law system.'"

b. Section 4(2) of Ontario Regulation 134/07, entitled Family Arbitration, promulgated under the Arbitration Act, 1991, states that:

An arbitrator who conducts one or more secondary arbitrations under a separation agreement, court order or family arbitration award, shall create a record containing the following matters …

c. Section 28(1) of the Children's Law Reform Act ("CLRA") sets out the powers of the court to make custody or access orders. It grants the court the jurisdiction to make what Mr. Benmor described as "in personam orders". They include, at s. 28(1)(b), "…any aspect of the incidents of the right to custody or access."

d. Section 3 of the Family Law Act ("FLA") empowers the court, in an application under that act, to "… appoint a person whom the parties have selected to mediate any matter that the court specifies."

e. The absence of a prohibition in "the legislation" that prohibits a consent order under s. 59.7 of the Family Law Act.

Discussion

[7] In M.(C.A.) v. M.(D.), the Ontario Court of Appeal was clear in stating that a court has "no authority" to delegate its power to determine custody or access to a third party. That position was recently affirmed in D.D. v. H.D., where the court emphatically stated: "…there is no statutory authority to delegate decision-making as to access to a third party."

[8] In Reid v. Catalano, Justice Margaret A. C. Scott of the Superior Court of Justice found, with regret, that she lacks the power to order parties to counselling and parenting coordination. She stated:

99 As circumstances such as disclosed in this case, when litigation has been so frequent, extended, and ineffective to facilitate the best interests of the children, the court should have within its jurisdiction every device to require the parents to develop and maintain civil communication, self-discipline, and a proportionate response to concerns related to the children's health, development, and educational issues. It is most regrettable, on the analysis of the evidence in this case, that the court lacks jurisdiction to order the parents to jointly retain a parent co-ordinator with appropriate expertise to facilitate the parties' communication, assist in decision-making, and arbitrate if necessary, the very specific issues that challenge the attaining of these particular children's best interests.

100 A court is always mindful of the danger of delegating its authority but legislative change ought to be implemented to provide the court with this reliable effective resource to assist parents in complex cases where the children's best interests are at stake. It is time to acknowledge that while the court is prepared to exercise its contempt power in appropriate cases, the evidentiary burden necessary to be met makes the analysis then required not speedy or accessible enough to ameliorate problems in the daily routine of the children's lives, or to continuously monitor, assess, deconstruct if possible, and immediately sanction if necessary, the entrenched and toxic communications between parents that have become systemic in nature. This court urges these parents, who express such commitment to their children, to immediately retain a parent co-ordinator with sufficient authority essential to assist them to stop repeating the failures of the past and to learn positive communication techniques that will advance the best interests of their children in the future. [emphasis added]

[9] In Imineo v. Price, Justice Rosalyn Zisman of this court adopted Justice Scott's "insightful observations". In Hsiung v. Tsioutsioulas, Justice Harvey Brownstone of this court found it necessary to reject the "rather appealing request" for an order that the parties retain a parenting co-ordinator. He found that he was not "empowered" to make such an order because "…courts are not permitted to delegate decision making powers in this way."

[10] Considering that I am bound by the doctrine of stare decisis, the comments set out above should be the complete answer to the issue. But since Mr. Benmor raised a number of other arguments, I will briefly respond to them.

[11] It is true, as Justice Sherrill M. Rogers comments in Sehota, that:

The services of parenting coordinators have become an important part of the family law system. The court values the work of such professionals for the vast potential it holds for easing many of the difficulties litigants face. In particular, the court usually sees the children being benefitted by the help of a parenting coordinator because that person can help the parents to put their children's interests first, to understand how conflict hurts children and to cooperate in spite of their past sorrows and hurts.

[12] In Sehota, Rogers J. was not asked to rule on the court's jurisdiction to make an order appointing a parenting coordinator. The issue before her was whether a report by a parenting coordinator should be accepted as an expert report.

[13] Section 4(2) of the Family Arbitration regulation does make reference to an arbitrator conducting "one or more secondary arbitrations" under a court order. However, as the authorities above demonstrate, nothing in the applicable legislation grants courts the right to order that custody or access decisions be made through arbitration.

[14] Similarly the definition of the term "secondary arbitration" under FLA s. 59.7(2) contains wording similar to those of s. 4(2) of the Family Arbitration regulation. It defines a secondary arbitration as:

… a family arbitration that is conducted in accordance with a separation agreement, a court order or a family arbitration award that provides for the arbitration of possible future disputes relating to the ongoing management or implementation of the agreement, order or award.

[15] But once again, as set out above, the FLA does not contain a grant of the right to delegate a court's jurisdiction to third parties. In fact, the definition section for Part IV of the FLA (Domestic Agreements) found at par. 51, makes reference to the terms "family law arbitration" and "family arbitration agreement". But it contains no reference to a family arbitration order.

[16] Further while s. 3 of the FLA allows the court to "…appoint a person whom the parties have selected to mediate any matter that the court specifies…" that grant of authority is far different than the jurisdiction to appoint an arbitrator.

[17] The CLRA is the Ontario legislation which governs custody and access. As stated above, CLRA s. 28(1)(b) allows the court to make an order with regard to "… any aspect of the incidents of the right to custody or access." The Oxford Canadian Dictionary definition of the term "incident" includes the following definitions:

… a privilege, burden, etc., attaching to an obligation or right…naturally connected with or forming an expected part of something…

[18] The power of the court to determine any feature connected to the right to custody or access is not the same as the right to delegate that decision making power. In other words, delegation of the power to make decisions about custody or access is not "… any aspect of the incidents of the right to custody or access."

[19] Mr. Benmor's final argument is that s. 59.7 of the FLA lacks an express prohibition to a consent secondary arbitration order. Section 59.7 of the FLA defines and sets out certain rules for secondary arbitrations. Nothing in that provision implicitly grants the jurisdiction of this court to make an order for a secondary arbitration. Once again the Ontario Court of Appeal's comments in C.A.M. v. D.M. and D.D. v. H.D. and those of Justices Scott, Zisman and Brownstone are definitive and determinative.

Conclusion

[20] In considering all of the above, it is clear that the Ontario statutory framework for the use of arbitration to settle family law disputes requires consent, as expressed in an arbitration agreement, in order to commence the process. That agreement can call for further reference to secondary arbitration to settle disputes that may arise from time to time down the road. However, absent statutory change, the gateway to the arbitration process can only be traversed voluntarily. Court orders, even those on consent, do not contain a shortcut across the arbitration gateway.

[21] That being said, nothing prevents the parties to this proceeding from signing the arbitration agreement contemplated in par. 44 of the draft order. They have already agreed to do so. It just means that the court cannot order them to do so.

[22] For the reasons set out above, I approve the draft order as submitted, other than paragraphs 44 and 45. I ask that Mr. Benmor resubmit the draft order with those paragraphs deleted. There is no order as to costs.

[23] I apologize to the parties for the delay in releasing this decision. Unfortunately a fair bit of research was necessary before it could be completed.

Justice Marvin Kurz