Challenging a Parenting Coordinator’s Authority

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In two recent British Columbia cases the scope of a parenting coordinator’s authority has been the subject of judicial scrutiny. As parents across Canada recognize the value of utilizing a parenting coordinator, clarification of their role and the ambit of their jurisdiction is likely to continue.

For the uninitiated, a parenting coordinator is a highly skilled professional, usually a lawyer or a psychologist/counsellor who is trained in mediation, family violence, arbitration, and family law principles and whose mandate is to assist separated couples in working together in the best interests of their children. It takes a special individual to work with high-conflict parents and mediate and adjudicate disputes in a highly emotional context. My hat goes off to professionals who take these cases on.

In AKS v. ALES 2019 BCSC 419 the parties agreed in a consent order on a parenting schedule and chose a parenting coordinator to work with them. The order provided for a gradual increase in parenting time to the father, working up to a 50/50 parenting schedule by the time the child attained the age of 8 years old. All of the recommendations, accepted by the parties and contained in the consent order were based on the professional opinion of well-regarded child custody psychologist Robert Colby.

However, when it came time to implement the equal parenting schedule, the child’s mother resisted, explaining that she did not understand the provisions she had agreed to and had not received adequate legal advice.

After Mr. Colby provided an updated custody assessment, again recommending equal parenting, and much to’ing and fro’ing between the parties’ respective counsel, the mother dug in her heels, refused to agree to shared parenting, and requested that the parenting coordinator resign.

Meanwhile, the father asked the parenting coordinator to make a decision based on the Colby reports, and the submissions and letters from both counsel to her over the past several months. She agreed to do so and rendered a written determination implementing equal parenting.

Relying on s. 19(1) of the Family Law Act, the mother sought to set aside the determination:

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,

The stumbling block to any success for the mother, was a provision in the consent order which read:

“In the event that the parties are unable to resolve the issue of the September 1, 2018 variation to the claimant’s parenting time by agreement, the Parenting Coordinator will have the authority to resolve that issue by way of a determination.”

The Court refused to set aside the determination holding that the consent order provided the parenting coordinator to make the determination. The Court also rejected the mother’s criticisms of the parenting coordinator and her suspicions of bias.

The Court considered whether the consent order provision was subjugated to a clause in the Parenting Coordinator Agreement:

“The Parenting Coordinator will not make determinations in respect of:

(d) a substantial change to the parenting time or contact with a child;”

After finding that the expansion of parenting time to the father amounted to a 4% increase, the Court held that the increased parenting time did not constitute a “substantial change”.

Also, while ascribing no fault to the parenting coordinator, the Court acceded to the mother’s request for the appointment of a new parenting coordinator, remarking that further determinations by her could well end up in more legal proceedings.

Lawdiva aka Georgialee Lang

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