McFarland v. McFarland, 2015 ONSC 3379

COURT FILE NO.: 607/13

DATE: 20150526

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Wendy Elizabeth McFarland, Applicant

AND

Cameron James McFarland, Respondent

BEFORE: Mr. Justice Timothy Minnema

COUNSEL: Mark S. LaFrance, for the Applicant

Hilary F.E. Warder, for the Respondent

HEARD: May 26, 2015 (In Chambers)

ENDORSEMENT

[1] I have received counsel’s joint submission to address my questions of April 9, 2015. At that time I indicated that I would make the order requested directing the parties to engage in secondary arbitration, as it was on consent, but had questions about the specific terms.

[2] Regarding the first two questions, the parenting coordinator here will be one and the same as an arbitrator under the legislation, and there is a certification process. Regarding questions 3 and 4, the process for determining the parenting coordinator is unlikely to be problematic in this case, and obtaining the required confirmations from him or her once selected is the only practical way to proceed. The sixth question had to do with the following proposed term relating to domestic violence and power imbalances screening, and was based on a misunderstanding: “Should the parenting coordinator determine that by reason of screening, this process is not suitable or no longer suitable, this determination shall be reduced to writing following which either party may remit the issue before the Court for determination”. Reading “the issue” as being the suitability of the arbitration process, I asked why that would be put to the court. Counsel’s submissions made it clear that the intent, rather, was that “the issue(s) in dispute can be placed before the Court for adjudication.”

[3] The fifth question was related to the appropriateness of the parties requesting an order that they “execute an Agreement in the form and manner acceptable to the Parenting Coordinator”. The concern was enforceability.

[4] Counsel, with experience in this area, explained the process. If a parenting coordinator is needed, he or she “will have the parties review a Stand-alone Agreement”. It is apparent that this will be a “family arbitration agreement” under the Family Law Act, subject to the various requirements of that Act and the Family Arbitration regulation under the Arbitration Act. As the actual agreement will be individualized by parenting coordinators - there is no standardized form - the parties are therefore consenting to an order requiring them to sign an agreement having a general understanding of its operation and provisions but before knowing all that it will contain. If a party thereafter refused to sign – it is critical to note that independent legal advice is mandatory before doing so – the actual issue or issues in dispute would be remitted back to the court. It would result in a “failure in the first instance of the alternate dispute resolution process” and the court can assume jurisdiction.

[5] So the requested order is not enforceable. Still, it will set out what is expected, the parties do not anticipate a problem, and it is but one small part of a larger agreement that resolves their entire court proceeding. The law is clear that the court can make an order requiring the parties to attend mediation/arbitration where they consent: M. v. F., 2015 ONCA 227 at paragraph 43. The provision in question addresses that process; it provides the parties with the means by which the secondary arbitration is to be implemented. They understand its limitations.

[6] Given the above, I have signed the Consent Order and thank counsel for their assistance.

Mr. Justice Timothy Minnema

Released: May 26, 2015