COURT FILE NO.: FS-09-350341-0001

DATE: 20121002

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Sheri Lynn Patricia Steels, Applicant

AND:

Victor Anthony Butrimas, Respondent

BEFORE: Czutrin J.

COUNSEL:
Dana Rotenberg (Appearing as Agent), for the Applicant
Chad Brown , for the Respondent

HEARD: September 4, 2012

ENDORSEMENT

[ 1 ] The Ontario Office of the Children’s Lawyer (“O.C.L.”) has agreed to intervene in this case.

[ 2 ] I advised counsel that pending the O.C.L. reporting, except for the issue of striking parts of the Respondent’s material, all other issues are adjourned until a date to be fixed by me based on the O.C.L.’s timetable. No other motions may be brought without leave.

[ 3 ] I considered the Applicant’s motion to strike portions of the Respondent’s motion to change information form.

[ 4 ] As submissions unfolded, the Respondent submitted that he would be content that I strike the portions requested so long as there was no cost ordered as a consequence of the striking. As will be outlined below, I have determined that costs are appropriate.

[ 5 ] When the parties settled, a consent order was granted by Goodman J. on June 9, 2011. This order is the subject of the current motions to change.

[ 6 ] The June 9, 2011 order included an order for appointment of a parenting coordinator and a statement that the first issue to be determined by the Parenting Coordinator shall be “the issue of whether or when each child is ready for additional time with the Respondent father”. The Parenting Coordinator shall mediate-arbitrate this issue.

[ 7 ] Paragraph 1(a) of the Divorce Order specified that the Parenting Coordinator was to be Dr. Barbara Fiddler, “assuming that she will accept the appointment”. If she was unwilling or unable, and the second choice (Linda Popielarczyk) was similarly unavailable, the parties were to agree upon another Parenting Coordinator. If the appointment could not be agreed upon, the court was to appoint a Parenting Coordinator.

[ 8 ] Paragraph 1(g) provided that the parenting coordination process was to be open.

[ 9 ] In spite of the above order, the parties were unable to get a Parenting Coordinator except on a closed process basis. On December 23, 2011the parties agreed to engage Ms. Christine Kim of Riverdale Mediation as their parenting coordinator. Ms. Kim would only agree to act as a Parenting Coordinator if it was a “closed” process.

[ 10 ] This brings us to the issue of the motion to strike. The sections sought to be struck from the Respondent’s Change Information Form included a portion of sub-paragraph 15 (d), commencing with the third sentence, and sub-paragraph 15 (e), as the information disclosed violates the agreement between parties and the parenting coordinator that it would be a “closed” parenting coordination process.

[ 11 ] The Respondent’s counsel submitted that because the June 9, 2011 order called for an “open process”, and the closed process violated the court order and therefore it was open to the Respondent to disclose what occurred. This is an unjustifiable position.

[ 12 ] The court cannot delegate decision making power to a parenting coordinator. This delegation comes instead from the consent of the parties. In this case, as in other cases where a court provides for the use of parenting coordinator, the court does so because of the parties’ agreement and consent to such an order as a term and condition of the parenting order. If the parties consent, the parenting coordinator is granted mediation and arbitration powers. The parenting coordinator’s involvement requires not only the consent of the parents, but also that of the parenting coordinator, agreeing to act. The court cannot compel any person to take on the parenting coordinator role without their consent.

[ 13 ] The parenting coordinator role is a secondary arbitration governed by the Arbitration Act . Secondary arbitration is defined 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” ( Family Law Act , s. 59.7 (2)). An agreement to this effect must be signed by the parties and the appointed parenting coordinator. In this case, the parties agreed to a closed process, at the request of the parenting coordinator. Since the power of the parenting coordinator is rooted in the parties’ consent, I do not accept the Respondent’s excuse for violating the closed process agreed to. His remedy, if he was opposed to a closed process, was to return to court; however, the court could not compel a person to take on a parenting coordinator role as an open process if the parenting coordinator would not agree to.

[ 14 ] The paragraphs, which violate the closed process that the parties consented to, are therefore struck. I have determined that costs are appropriate. I will fix quantum on return.

[ 15 ] While the Applicant’s counsel asks that I stay the Respondent’s request to change due to his failure to pay costs ordered by Kiteley J. on September 20, 2011, and his failure to provide documentation to satisfy paragraph 9 of the June 9, 2011 Divorce Order, I will consider the Applicant’s request when the motion returns, but the Respondent is to provide proof of compliance with the previous order and also provide evidence demonstrating his efforts to pay the costs ordered and an explanation for why costs remain unpaid. This shall include proof of income since the 2011 order, bank records, credit card statements (since the date of the order to return of the motion) and his 2011 Income Tax Return.

[ 16 ] This case appears, once again, to require case management. I instruct counsel to advise whether they are content to have Goodman J. case manage, and for me to do all motions.

[ 17 ] Upon return, I am to be advised as to what the parties have agreed to or alternatively receive submissions as to next steps.

Czutrin J.

Released: October 2, 2012