SUPERIOR COURT OF JUSTICE - ONTARIO
RE: M.D., Applicant
AND:
C.S., Respondent
BEFORE: The Honourable Justice L. Madsen
COUNSEL: Anna Towlson, Counsel for the Applicant
Viktoriya Terentyeva, Counsel for the Respondent
HEARD: November 18, 2022
ENDORSEMENT
This Endorsement arises out of a binding judicial dispute resolution process [“JDR”], in which, as anticipated, the parties resolved most issues and the court decided minor remaining disagreements.
While strictly speaking this endorsement is not necessary, the parties agreed, given that at this time JDR remains a pilot project, that an endorsement might help other families decide whether this would be a useful process for them.
I thank M.D. and C.S., who asked to be referred to as Monet1 and Chloe (not their real names), herein. They selected JDR to help them resolve parenting issues that had divided them for some time and participated fully and with commitment to resolution. It was a pleasure to work with both of them. They were assisted by capable and committed lawyers who supported and guided them throughout.
Brief Overview of the Process
JDR is a court process that is intended to provide separated families with a faster, simpler, less acrimonious and more cost-effective way of resolving family law issues, as compared with a trial. In the Ontario Superior Court of Justice, JDR is currently being offered as a pilot program in certain courts, operating under local Practice Directions. This endorsement arises from the first JDR in the Kitchener Unified Family Court.
A JDR hearing combines initial settlement discussions with the benefit of a decision-making component by the presiding judge about any issues that the parties are not able to resolve on consent.
The process has been designed to be practical and efficient, and to help families craft their own resolutions if at all possible. It is more interactive and less adversarial than a trial. The intention is that the parties, counsel and the judge work together to craft a consent final Order, that day. Because the parties have the benefit of receiving input from the presiding judge about the outstanding issues, most parties resolve their issues themselves without a ruling. Any remaining issues are likely to be narrow, so that the adjudication stage of the hearing is relatively focused.
The JDR process is voluntary, and accessible only where a judge agrees that the case is appropriate. This could be determined at any court attendance, such as a case or settlement conference, trial management conference, or by 14B motion. Initially, the process is being introduced for cases with only a few issues and which are not complex, where credibility is not a significant concern, and where disclosure is complete. Cases that lend themselves will include parenting arrangements, select child support issues, or select property issues.
If a judge gives the “green light”, the parties then file a signed “Consent” document to the court in which they request participation in JDR. That document provides, among other things, that the parties:
a. commit to keeping their financial disclosure up to date;
b. agree to provide to the other party and the court a comprehensive settlement proposal in the form of a draft Order, that can be used during the JDR process;
c. agree to have their case decided without a trial, in an expedited and less formal manner;
d. waive any right to the strict application of the rules of evidence;
e. acknowledge that the court may rely on reports prepared by professionals including agents of the OCL, without the attendance of those individuals at the JDR; and
f. agree and request that the same judge will preside over both portions of the process.
Parties must each serve and file brief affidavits, to which they may attach exhibits. In addition, all statements made during the process, whether during the settlement discussions or the adjudication phase of the hearing, are evidence that may be relied on if the court is required to adjudicate. Parties are sworn in, or affirm, at the outset of the process.
In Kitchener, JDR’s are presently scheduled for a half day, with the afternoon available for the preparation of a brief decision if necessary. Locally, the intention is that between 90 minutes and two hours be allocated to the negotiation phase, during which the judge helps the parties identify their interests, consider options, and reach resolution. The judge may express opinions, and this does not preclude determination of the issues. In fact, this is one of the main benefits of the JDR process. Parties have an opportunity to discuss with the judge who is deciding their case, what that judge's approach to the issues will be, and to receive guidance regarding the strengths and weaknesses of their respective positions. Equipped with that information, parties can usually craft their own resolution.
If an adjudication phase becomes necessary, that too would be allocated between 90 minutes and two hours. There is no formal procedure required, but the judge would usually provide each party with an opportunity to supplement the information and evidence already before the court, and give the parties or counsel an opportunity to present their arguments about why the orders requested by the party should be made. The judge may elicit further information directly from the parties and, although there is no formal right of cross-examination, the parties may raise questions that they think would be helpful for the judge to ask the other party before making a final decision.
The process is flexible, so the judge may reallocate the negotiation and adjudication time as she or he finds most helpful to the parties.
To the extent that the court is required to decide some or all of the issues, it is the intention that reasons be brief and focused, and the goal is that whether through settlement or a decision, parties have an “answer” to their issues by the end of the day or shortly thereafter.
The goal is to help the parties achieve resolution efficiently, and the court therefore discourages adjournments. As a significant block of court time has been set aside for the hearing, it should be treated with the same respect as a trial. Parties should be prepared and ready to proceed on all issues to achieve a final completion of their matter on the scheduled day.
This Case
Monet and Chloe’s case was perfect for this process.
Monet and Chloe are the parents of an eight-year-old girl, whom I will call Alex. Monet and Chloe have been separated for over six years, and, although they have an established parenting routine, they have experienced a great deal of conflict.
They attended several conferences at court, and although they came close to resolution on several occasions, discussions would fall apart when it came to the “finer points” of the settlement. They had agreed, for example, that Alex would live with them on an equal basis, but exactly what the schedule would look like, when transitions would be, and how the holiday schedule would be implemented, would never quite get resolved, notwithstanding the fine efforts of their lawyers.
In the traditional process, the next step would have been a trial management conference, and it had been anticipated that this would be a five-day trial. Yet, both parties and both lawyers clearly saw that a trial would be expensive and only make things worse between these parents, and that there is little law to assist in distinguishing between the options the parents were considering.
When the JDR process was announced in Kitchener, both counsel and both clients requested the process and were patient with the court as we got it up and running.
While Chloe and Monet also have some issues regarding child support, the consensus was that if they could resolve parenting issues, the child support issues would likely fall away. The support related issues were thus not part of the JDR.
The parties each completed their affidavits and Consent and provided detailed draft orders as required.
The issues that were brought to the JDR process included the following:
a. Transition times in the regular 5/5/2/2 schedule (mornings or afternoons);
b. How exactly to articulate the principle that major decision-making authority over health or education (the parties having already agreed to parallel parenting) does not directly implicate related section 7 expenditures, for which consent is still required;
c. How to allocate vacation time between them equally, but also in a manner that shares most holidays rather than alternates them, and recognizes that in a 5/5/2/2 schedule, one parent by default has all Mondays (and therefore long-weekend Mondays) while the other has Fridays (when most PD days fall) which are alternated, creating an imbalance;
d. How to best address Mother’s Day where, as here, there are two mothers;
e. Travel provisions within Ontario, within Canada, and internationally;
f. Whether the parties should apply for citizenship and a passport for the child where she is also entitled to EU citizenship, where one parent felt this provides opportunities and the other has an underlying fear about the child’s possible removal from Canada;
g. Who should keep which of the child’s documents (birth certificate, passport, social insurance number, and health card); should this be alternated, or should each parent have two of them;
h. Logistics regarding exchanges of the child; and
i. Whether the parents should be permitted to attend at extra-curricular activities while in the other parent’s care.
As is immediately evident from the list above, the best interests’ principle, as articulated in the Children’s Law Reform Act and the extensive caselaw thereunder, offers little guidance on such issues. Really, what was required was a full discussion of underlying concerns, and an effort to tailor language that could meet those concerns in a nuanced way. A trial would not have added much and could have made matters worse between Monet and Chloe.
To assist the parties, I indicated at the outset that if I were ultimately asked to resolve any of the issues, I would be guided by principles including the following, all of which speak to “best interests” under the CLRA:
Minimizing Alex’s exposure to conflict;
Simplicity in implementation (which also helps reduce conflict);
Consistency and routine for Alex;
A consideration of the existing arrangements (the status quo);
Consideration of Alex’s age and stage of development; and
Ensuring consistency of school attendance.
In addition, I stated that I would be alive to the parents’ commitment to a balanced and equitable schedule.
In this case, it was clear that while the discussions were not easy, they were productive. The parties moved through the issues, each hearing the other and making a range of compromises to arrive at a resolution on most issues.
In this case, the settlement “phase” was longer than the anticipated two hours, as discussions were moving productively, and the parties were arriving at their own solutions.
Almost all issues were resolved on consent.
Issues for the Court to Decide
- At the conclusion of the settlement discussions, the following narrow issues required judicial determination:
a. The language required to ensure that final decision-making on an issue does not obligate the other in terms of section 7 expenses;
b. Exchange locations;
c. Whether both parents may attend at the child’s extra-curricular activities, whenever scheduled.
- Throughout the process and through the affidavits, I heard from both parties and their lawyers what their perspectives were on each issue. Ultimately, counsel, the parties, and I also reviewed draft language in a combined draft Court Order (helpfully colour-coded by counsel), in order to distill the areas of disagreement. There was no cross-examination but I asked a range of questions and a full airing was given to the issues.
Issue # 1: Language regarding decision-making not implicating expense sharing
On this issue, the parties’ goals were the same but they and counsel got stuck at the wordsmithing stage.
I find the following sentence shall be added after paragraph 1(c) as follows:
Para 1(d)
In exercising final decision-making on major health issues or major education issues, neither party shall make a final decision that would cause a financial implication for the other party, absent that party’s prior written consent, such consent not to be unreasonably withheld.
By way of example, if Monet is of the view that Alex requires physiotherapy and wishes Chloe to contribute to the uninsured cost, she must seek Chloe’s prior written consent, such consent not to be unreasonably withheld. Similarly, and also by way of example, if Chloe is of the view that a private educational assessment is required and she wishes Monet to contribute to the uninsured cost, she must seek Monet’s prior written consent, such consent not to be unreasonably withheld.
I find that the above language achieves the stated goal of the parties on the issue and will reduce conflict going forward.
Issue # 2: Exchange locations
The parties agree that where possible, transitions between their homes should take place at school, at the childcare location, or camp. They are not on the same page, however, about where exchanges should take place when that is not possible.
Monet proposed that she do all of the drop offs and pick-ups at Chloe’s home, and that if for some reason they have conflict, the location be moved to a specific Tim Hortons. Her experience is that from time to time she and Chloe have conflict and she wishes to reduce Alex’s exposure to that. Transitions at Chloe’s home is also what Alex is used to as this is what was done throughout the pandemic.
Chloe proposes that the parents share the pick-ups and drops offs and says that a back-up location in the event of conflict is not necessary. In her view, they have not had conflict on pick-ups or drop offs for quite some time. She is prepared to share the driving.
One of the most important gifts the parties can give Alex is to not expose her to conflict. Conflict, of course, can be overt or not. Children are alive to their parents’ conflict whether it is at the surface or lurking underneath. That Chloe feels there is no conflict does not mean that Monet experiences their relationship the same way. It is likely that Alex is aware of tension.
In all of the circumstances transitions shall be as follows:
Para 14
a. Transitions shall be at school, camp or at the childcare provider where possible;
b. When that is not possible the transitions shall take place at Chloe’s home with Monet being responsible for the transportation;
c. Both parties shall make every effort to ensure that transitions are conflict-free;
d. In the event that either parent provides the other with notice (by text or App) that she would prefer a public location, transition will take place at the Tim Hortons at 385 Frederick Street, Kitchener, unless the parties jointly choose another mutually agreeable location, until the parents agree to resume transitions at Chloe’s home;
e. In the event that either parent moves from her current home, the parties will review the pick-up and drop off arrangements.
Issue # 3: Attendance at extra-curricular activities
Monet and Chloe do not agree on whether both parents and extended families should be able to attend Alex’s extra-curricular activities, whenever scheduled.
Monet would like both parents, and their families, to be able to attend such activities because it is good for Alex to see both parents cheering her on and supporting her.
Chloe says that both parents should be able to attend IF the scheduled parent invites the other parent/extended family. She is concerned about potential conflict and points out that with respect to transitions (discussed above) it is Monet who still sees enough conflict to warrant a back-up transition location.
Again, the core concern from the perspective of “best interests” is the reduction or conflict to which Alex is exposed. And again, the experience of conflict is subjective, children being attuned to the interactions of their parents.
While I see great value, generally, in both parents being present for a child’s recreational activities, in my view the circumstances are not yet there for this to be the default for Alex. Monet and Chloe should work towards this, and hopefully they will arrive at a place where they routinely invite one another to such activities.
However, presently, I find that the following is appropriate, and this term has been added to the draft Order provided by counsel:
Para 33
In order to ensure that Alex is not exposed to parental tension or conflict, the parties shall not attend Alex’s extra-curricular activities scheduled on the other parent’s time unless invited to do so, by the scheduled parent. Each party shall encourage their own extended family members to adhere to this term.
Conclusion
In the result, I have amended the joint draft Order provided by counsel to reflect the minor issues I was ultimately asked to decide.
I thank counsel for their significant efforts to assist Monet and Chloe reach resolution.
I commend Monet and Chloe for their efforts during the JDR. It was clear, at times, that it was not easy, but they each tried to hear the other, gave on a range of issues, and ultimately jointly put their beloved Alex first.
Alex is a fortunate girl to have parents who have worked so hard to develop a nuanced plan for her. It is my hope that having this plan – even if they don’t love each and every clause – will give Monet and Chloe a measure of peace, so that they can both move ahead.
Certainly, I wish them – and Alex – every happiness, as they move forward.
Other
- This process resolved all parenting issues in the court proceeding between Chloe and Monet. The parties hope to address the balance of the issues, including costs, through further discussions.
L. Madsen, J.
Date: November 29, 2022