Let’s be honest… Separating spouses are not running to line up for any process to commemorate the death of their relationship. The separating spouse is usually in pain, angry, confused, scared and hopeless.

She is wanting to run away from the ruins of her marriage. She is not volunteering for anything at this stage of her life.

As an aside, the most satisfied client of mine, after thanking me for providing them with excellent and compassionate legal representation, follows the compliment with “I hope I never need to use you again.”

When we use the term ‘voluntary’ we must recount the context… not from our perspective (we meet hundreds of separating spouses, whereas the client meets one Family law lawyer and we are in and out of courthouses almost daily, which does not cause us anxiety, whereas the very presence of a separating spouse in a courthouse causes tremendous stress and anxiety for her), but from the perspective of the client who never planned for this, wishes the pain would stop and feels helpless.

Can a person in this emotional state really be acting with volition and intent ?

When a spouse finds herself in this situation, she speaks to her friends and family, makes inquiries of what to do next and, eventually, lands in the office of a professional (therapist, lawyer and/or mediator) who guides her to the next step.

When this person ‘volunteers’ for mediation as a ‘process’, she is usually choosing the least of all poisons. The other alternatives are not available (reconciliation), not affordable (litigation) or impractical (doing nothing).

Another way to look at it stems from my observations on Wednesdays at the Family Court of the Superior Court of Justice in Newmarket. Wednesdays is motions day. Between 30 to 50 motions are on the docket each Wednesday. There is no limit placed on this list. There is no case management. There is no planning. It’s a free for all. Each Wednesday, separating spouses and counsel line up at 10:00 a.m. to seek judicial intervention. There is a problem in the lives of these spouses. They could not resolve them. Their lawyers could not resolve them. They are nervous, worried and anxious…but hopeful. They hope that the motions’ judge will hear their problem and declare a solution.

That can’t happen. Why ?

One motions’ judge cannot solve 30-50 domestic problems between 10:00 a.m. and 4:00 p.m. S/he may be able to help a few families. This of course starts after those spouses who have given up, failed to confirm their court attendance in advance, failed to attend court that day or have already resolved their dispute, are managed by the court. This usually takes 30 to 90 minutes. That is when the motions’ judge announces that the remaining time in the day is not adequate to help the many remaining spouses in waiting.

Now for the notion of ‘volunteering for mediation’.

The motions’ judge announces that this court location offers mediation services. It is free and available. The judge reminds everyone that, regrettably, s/he cannot help most of those in the room.

So the spouses and counsel, in utter disappointment, consider the alternatives (leaving court with no solution, coming back next Wednesday and hoping to be heard, booking a fixed motion date in 4 months or… ‘volunteering for mediation’).

It is arguable that in these situations a person is acting under duress or desperation when opting for mediation.

Don’t get me wrong. Mediation may be the very best option for this family. It may preserve the relationship… ensure mutual respect… permit the discovery of a cooperative solution… end the conflict… and save money.

But I query whether mediation was voluntary.

Before mediation begins, the spouses will decide whether the mediation will be open or closed. In open mediation, the mediator may be asked by either spouse to write a full report on what happened during the mediation including the reasons why it was not successful. If the mediation is not successful and the case proceeds to court, the report may be considered by the judge. Also, the mediator may be required by either spouse to testify in court. In closed mediation, the information exchanged by the spouses is confidential. The mediator’s report will only mention whether an agreement was reached, but will not provide any details of why an agreement was not reached. In closed mediation, neither spouse can compel the mediator to testify in court.

A Parenting Coordinator (‘PC’) helps separated parents resolve parenting disagreements. PC’s are usually social workers and psychologists, although there are a growing number of lawyers now working as PC’s. PC’s receive their authority from a Parenting Plan, Separation Agreement, Court Order or Arbitral Award. That is, the types of disputes that PC’s resolve relate to the implementation of a parenting schedule – not the creation of such a schedule. That is why section 59.7(2) of the Family Law Act refers to this service as a ‘secondary arbitration’. By definition, a secondary arbitration “means 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.”

Before arbitration is invoked, PC’s use a variety of tools to help parents solve their disagreements ranging from parent education, to coaching, to mediation. Only if the parents still cannot agree upon a solution, do PC’s resort to arbitration. That is, PC’s have the power to arbitrate parenting disputes, but usually after education and mediation have failed. The idea is that the PC attempts to enable the parents to problem-solve and develop the skills to better communicate and arrive at mutual decisions regarding their children. However, if such efforts have been exhausted, the PC renders an arbitral decision, which must be followed by the parents, as if ordered by a judge.

The implementation of Parenting Coordination varies among jurisdictions. In Ontario, a judge cannot order parties to use a Parenting Coordinator, as that would constitute a delegation of authority. The consent of both parties is required.

In 2012, the Ontario Court of Justice in Sehota v. Sehota [2012] O.J. No. 835, took judicial notice of PC’s and specifically the 2005 Guidelines for Parenting Coordination, which were produced by the Association of Family and Conciliation Courts.

The court stated:

The Guidelines suggest that the Parenting Coordinator has considerable authority, albeit about only minor issues. A list of the types of issues that might be addressed by a Parenting Coordinator is as follows:

1): Minor changes or clarification of parenting time/access schedules or conditions including vacation, holidays and temporary 2): variation from the existing parenting plan;
3): Transitions/exchanges of the children including date, time, place, means of transpiration and transporter;
4): Health care management including medical, dental, orthodontic, and vision care;
5): Child-rearing issues;
6): Psychotherapy or other mental health care including substance abuse assessment or counseling for the children;
7): Psychological testing or other assessment of the children and parents;
8): Education or daycare including school choice, tutoring, summer school, participation in special education testing and programs or other major educational decisions;
9): Enrichment and extra-curricular activities including camps and jobs;
10): Religious observances and education;
11): Children’s travel and passport arrangements;
12): Clothing, equipment, and personal possessions of the children;
13): Communication between the parents about the children including telephone, fax, e-mail, notes in backpacks, etc.;
14): Communication by a parent with the children including telephone, call phone, pager, fax, and email when they are not in that parent’s care;
15): Alteration of appearance of the children haircuts, tattoos, ear and body piercing;
16): Role of and contact with significant others and extended families;
17): Substance abuse assessment or testing for either or both parents or a child, including access to results; and
18): Parenting classes for either or both parents.

Parenting Coordinators have become a critical component of matrimonial law, post-separation family counseling and dispute resolution. Family court judges value the work of such professionals for their help in easing many of the difficulties parents face, in a manner that protects the interests of children. PC’s help parents put their children’s interests first, help them understand how conflict hurts children and teach them how to communicate and cooperate so as to achieve the very best outcomes for children of divorce.