Parenting coordinators
There is a specific reference to the use of parenting coordinators by way of section 14 which reads as follows:
14 A person meeting the requirements set out in the regulations may be a parenting coordinator.
Section 14 establishes that requirements to be a parenting coordinator will be set out in the regulations.
Parenting coordination is a relatively new dispute resolution mechanism that is being practised in British Columbia. Parenting coordinators help high-conflict families implement agreements or orders respecting parenting arrangements using a mediation-arbitration approach. It is being used in many other jurisdictions in North America and originated in the United States.
Section 15 sets out when a parenting coordinator may assist and reads as follows:
When parenting coordinators may assist
15 (1) In this Division, "parenting coordination agreement or order" means a written agreement or an order to use a parenting coordinator.
(2) A parenting coordinator may assist only
(a) if there is a parenting coordination agreement or order in place, and
(b) for the purpose of implementing an agreement or order respecting parenting arrangements, contact with a child or other prescribed matters.
(3) A parenting coordination agreement or order may be made at the same time as, or after, an agreement or order respecting parenting arrangements, contact with a child or other prescribed matters is made.
(4) A parenting coordinator's authority to act ends 2 years after the parenting coordination agreement or order is made, unless the parenting coordination agreement or order specifies that the parenting coordinator's authority is to end on an earlier date or on the occurrence of an earlier event.
(5) Despite subsection (4), a parenting coordination agreement or order may be extended by a further parenting coordination agreement or order, but each extension may be for no more than 2 years.
(6) Despite subsection (4), a parenting coordination agreement or order may be terminated at any time as follows:
(a) in the case of an agreement, by agreement of the parties or by an order made on application by either of the parties;
(b) in the case of an order, by an order made on application by either of the parties;
(c) in any case, by the parenting coordinator, on giving notice to the parties and, if the parenting coordinator is acting under an order, to the court.
Section 15 establishes the general rules respecting when parenting coordinators may act, how long the parenting coordinators may act for, and how parenting coordination ends.
Parenting coordinators do not assist the parties in coming to agreement about their parenting arrangements; they help parents carry out their already determined parenting arrangements.
A parenting coordinator may become involved by way of a written agreement or court order.
This section allows judges to order parenting coordination whether or not the parties consent. It is important to give judges the authority to require attendance because the couples who benefit most from this process usually have high levels of conflict and are unlikely to agree to attend.
The term of a parenting coordination process is limited because it not designed to be permanent but to end when parents become able to resolve disagreements on their own.
This section limits the jurisdiction of parenting coordinators to circumstances in which there is already a parenting arrangement in place. The powers of a parenting coordinator are different from those of other family dispute resolution professionals. As a result, parenting coordinators will not be authorized by the FLA to help create parenting arrangements. Nor do parenting coordinators have the jurisdiction to make decisions that will fundamentally change a governing agreement or order. The role of the parenting coordinator is not to replace judges, but to manage ongoing parenting issues that are not suited to the court process. Some examples include scheduling summer holidays, choice of extracurricular activities, and bedtimes. (See P. (S.L.) v. P. (C.W.), 2007 BCSC 1963.)
The powers of the parenting coordinator depend on the terms of the appointment. Some appointments are more limited (to mediate and cajole), whereas others allow the parenting coordinator to make determinations on issues, provided the issue is within his or her jurisdiction.
The court has appointed parenting coordinators without the consent of both parties. The scope of authority varies, but has included decision-making powers. (See Hunter v. Hunter, 2008 BCSC 403, P. (G.) v. P. (M.J.R.), 2009 BCSC 659; Betz v. Joyce, 2009 BCSC 1199; McClaughry v. McClaughry, 2009 BCSC 501; T. (B.) v. L. (B.), 2010 BCSC 1813; J. (E.P.) v. E. (A.P.), 2010 BCSC 1121 (para 42); R. (S.) v. E. (B.), 2011 BCSC 1586; and Sukul v. Sukul, 2011 BCSC 507.)
The language in the Act does not draw a distinction between interim agreements or orders and consequently it would appear to be the intention of the Legislature that a parenting coordinator could be appointed, or agreed on, to implement interim parenting arrangements pending trial or final agreement of the parties.
Section 15(4) of the Act limits the parenting coordinator's term to two years. Experience in British Columbia and other jurisdictions has led practitioners to try to ensure a long enough term of appointment to enable the parenting coordinator to acquire knowledge of the family dynamics, the parties themselves, and their children. The risk of a short term of appointment is that one or the other of the parents may not be successful when a determination is made under an agreement or court order; whereas in a longer appointment, it is more likely that disagreements will have been resolved by consensus or determinations will have been made that hopefully lead to both parties feeling their needs are being addressed.
It is important, given the potential two-year duration of the appointment, that the agreement or court order provide for sufficient financial resources to enable the two-year mandate to be fulfilled. A lack of provision for financial resources will generally limit the involvement of the parenting coordinator.
Section 15(6) discusses termination of the parenting coordination agreement. At the date of publication there are no reported cases on applications to terminate the appointment of a parenting coordinator.
Section 16 sets out when a party must provide information to a parenting coordinator and reads as follows:
Information sharing for parenting coordination
16 A party must, for the purposes of facilitating parenting coordination, provide the parenting coordinator with
(a) information requested by the parenting coordinator, and
(b) authorization to request and receive information, respecting a child or a party, from a person who is not a party.
Section 16 ensures that parenting coordinators will be able to obtain the information they need to make determinations.
Information may be obtained from non-parties such as teachers, therapists, family justice counsellors, police officers, medical doctors, coaches, and others. Given the principles of natural justice as they will apply to determinations made under s.18 of the Act, it remains to be seen how input from those persons will be managed in the parenting coordination process. Absent any power to compel providing information from those who are not parties to the parenting coordination, there may be reluctance to produce information that is sensitive and may negatively impact one of the parties or children involved in the parenting coordination process.
Section 17 deals with what a parenting coordinator may assist with and reads as follows:
Assistance from parenting coordinators
17 A parenting coordinator may assist the parties in the following manner:
(a) by building consensus between the parties, including by
(i) creating guidelines respecting how an agreement or order will be implemented,
(ii) creating guidelines respecting communication between the parties,
(iii) identifying, and creating strategies for resolving, conflicts between the parties, and
(iv) providing information respecting resources available to the parties for the purposes of improving communication or parenting skills;
(b) by making determinations respecting the matters prescribed for the purposes of section 18 [determinations by parenting coordinators].
Section 17 establishes that parenting coordinators may resolve issues that arise in implementing parenting agreements and orders in two ways. They may help the parties negotiate a resolution and, where resolution through agreement is not possible, they may, within a limited scope, make a binding decision for the parties. The limited scope is set out in s. 18.
For example, if the parenting arrangements say that dad will pick up the children on Thursday, but the parents cannot agree where the pickup will be, the parenting coordinators could decide and the parties would be bound by that decision.
Consensus building involves the use of mediation, negotiation, and collaborative law principles, the characteristics of which set them apart from determination making. The parenting coordination process is not without prejudice. The determination making potential of the parenting coordination process under s. 18 of the Act requires that all input relied on by the parenting coordinator be available such that the discussions or documentation produced in the consensus building process be with prejudice.
The potential impact on families of the determination making power is such that adherence to the principles of natural justice is required and there must be clarity at the point where the consensus building phase ends and the determination making process outlined in s. 18 commences.
Section 18 deals with what a parenting can determine and reads as follows:
Determinations by parenting coordinators
18 (1) A parenting coordinator
(a) may make determinations respecting prescribed matters only, subject to any limits or conditions set out in the regulations,
(b) must not make a determination respecting any matter excluded by the parenting coordination agreement or order, even if the matter is a prescribed matter, and
(c) must not make a determination that would affect the division or possession of property, or the division of family debt.
(2) In making a determination respecting parenting arrangements or contact with a child, a parenting coordinator must consider the best interests of the child only, as set out in section 37 [best interests of child].
(3) A parenting coordinator may make a determination at any time.
(4) A parenting coordinator may make an oral determination, but must put the determination into writing and sign it as soon as practicable after the oral determination is made.
(5) Subject to section 19 [confirming, changing or setting aside determinations], a determination
(a) is binding on the parties, effective on the date the determination is made or on a later date specified by the parenting coordinator, and
(b) if filed in the court, is enforceable under this Act as if it were an order of the court.
Section 18 establishes the rules relating to determinations made by parenting coordinators.
Parenting coordinators may only make determinations respecting implementation of an agreement or order respecting parenting arrangements, contact with the child, or other matters which are included in the regulations. They may not make any decisions respecting property.
Providing for the possibility of allowing parenting coordinators to determine other matters by way of regulations provides flexibility to make changes as the practice evolves.
The scope of the matters for which a parenting coordinator may resolve or determine must be set out in the agreement or included in an order.
Section 18 provides that, in making determinations, a parenting coordinator must consider only the best interests of the child.
A parenting coordinator may make determinations at any time, including without having attempted consensual resolution first, if appropriate.
The section allows for oral determinations, but they must be put in writing as soon as practicable.
A determination is binding on the parties from the date it is made, or another date specified by the parenting coordinator.
If filed in the court, a parenting coordinator's determination is enforceable as though it were an order. This is the same way agreements respecting parenting arrangements are treated in the Act.
Section 18(1)(b) contemplates a separate regulation regarding "prescribed matters" since the wording of this section suggests orders or parenting coordination agreements may be more limited than the list of prescribed matters. "Prescribed matters" are not defined in the Act and have not to date been identified by regulation which is contemplated by s. 245(1)(g) of the Act.
The jurisdiction of the parenting coordinator will not, in any event, exceed what is going to appear on the list of prescribed matters. A parenting coordination agreement will not be permitted to go beyond the prescribed matters but can be more limited than the prescribed matters.
Section 18(4) should be interpreted as exceptional in that only where time limitations dictate should oral determinations be pronounced, given the enforceability of determinations as court orders under subsection (5).
Because they may be reviewed by the court under s. 19, determinations should be formalized, not only with written reasons for the determination, but also in a format appropriate for filing with the court registry. No format has been mandated to date by either the Legislature or the courts.
Section 19 sets out the grounds by which a court may change or set aside a determination by a parenting coordinator and reads as follows:
Confirming, changing or setting aside determinations
19 (1) On application by a party to a determination made by a parenting coordinator, the court may change or set aside the determination if satisfied that the parenting coordinator
(a) acted outside his or her authority, or
(b) made an error of law or of mixed law and fact.
(2) If the court sets aside a determination, the court may make any order that the court may make under this Act to resolve a dispute between the parties in relation to the subject matter of the determination.
(3) If the court does not set aside a determination, the court may make any order that the court may make under this Act to enforce compliance with the determination.
Section 19 allows parties to ask a court to review determinations made by parenting coordinators.
This section limits the grounds on which the court may change or set aside determinations made by parenting coordinators in order to enhance the success of out-of-court settlement processes.
These limits are similar to those covering family law arbitration awards.
"Acting outside his or her authority" will be determined based on whether the limitations on the jurisdiction of the parenting coordinator are based on the "prescribed matters" or something more narrowly defined by either the court order or the parenting coordination agreement.
Where to find a parenting coordinator
If the court does not appoint a parenting coordinator, parties can locate one at the following website of the BC Parenting Coordinators Roster Society:
http://www.bcparentingcoordinators.com/