Jirova v Benincasa: A Parenting Coordinator’s Take on an Important SCJ decision
SCJ Justice pens important decision showing clear understanding of PC process
by, Marianne Cuhaci, FDRP PC, co-chair FDRIO PC section
In Jirova v. Benincasa (2018 ONSC 534), Madame Justice Audet described parenting coordination in the context of Family Disputes, pointing out that it is:
“…a way for parents to settle parenting disputes with cost-efficiency, procedural flexibility and expeditiousness.” (par 12, p 5).
Acknowledging that the “…requirements of equality, fairness and procedural fairness set out in s. 19 of the Arbitration Act” must be met at all times, (Paragraph 18, page 8), Justice Audet highlights some of the variations and exclusions “…which allowed the PC to depart from the provisions of the Act with regards to rules of procedure and evidence…” (par 16, page 6).
A summary of a few of the variations the judge refers to are:
That the PC process is non-confidential and that the PC may issue a report to the parties, their lawyers and the Court. (p 6)
That arbitration may be conducted in a hearing and/or by written submissions only, and that as such, the parties are waiving their rights under section 26 (1) of the Arbitration Act with respect to their right to a hearing (p 6)
That the PC may rely on any information she received during the non-decision making phase of the PC process, when acting as an arbitrator but that notwithstanding this, that the parties must provide their full submissions for arbitration purposes. (p 7)
That the information the PC receives from the children or the children’s therapist is only disclosed to the parties with the children’s consent, or at the PC’s discretion, despite the fact that this provision may not satisfy the requirements of the Arbitration Act. (p 7)
That the parties waive the right to have a reporter present at an arbitration, unless the arbitrator determines otherwise. (p 7)
It is this very “departure” from some of the provisions of the Act which attract consumers to PC. Without these variations, there would be little point in retaining a PC! Despite their advantages, these provisions can also at times create some practice and procedural challenges.
Written Submissions vs Live Hearing:
It is fairly standard for PC clients to “give up” their right to a live hearing. Most PC clients prefer arbitrations by written submissions only because they are more cost efficient and the parties feel more comfortable and emotionally safe. That said, there are times when one or both parties may request a hearing, or circumstances are such that a hearing is the only option.
Notwithstanding this provision, PCs should think twice before denying a party a hearing if they ask for one, regardless of the provisions in the PC Agreement.
Some issues to be considered are:
Time-sensitivity of the matter in dispute.
The magnitude of the issue. All things being equal, the more “major” the issue, the greater the formality, recognizing that there are several factors to consider other than the magnitude of the issue.
The dynamics between the parties, including possible power imbalances
The wishes/input of the parties and their lawyers.
Costs
In this particular case, it appears that notwithstanding the provision in paragraph 36 of the parties’ PC Contract, the PC made the wise decision to grant the appellant a hearing when he requested it.
Other Issues Addressed in the Decision:
Screening For Domestic Violence and Power Imbalances:
Despite the apparent discrepancies in the dates the PC signed the Declaration, the judge seemed satisfied that Ms. Claridge did fulfill the requirements of the Family Statute Law Amendment Act.
In recent years, there are more examples of parties raising some aspect of screening as a ground of appeal. It seems to be the latest “technicality” being raised in the conflict industry.
This means that PCs must add clarity to their PC Agreements with respect to the purpose of screening, how and when it is conducted confidentiality of the screening, the limits of same, and other details (see FDRIO’s PC Screening Guidelines).
Regarding the Matter of When to Screen:
Some PCs schedule the confidential intake meeting with each party (which includes screening) before the PC Contract is signed, and others screen after it is signed. There are clear advantages to screening before the parties sign the PC Agreement, since this allows them with a thorough opportunity to learn more about the PC process, for the PC to satisfy herself that the parties are well informed before they consent to it (Standard III , FDRP PC Standards of Practice), and to assess whether the parties are “governable”, i.e. able and willing to follow a (PC) process.
In addition, the PC may screen the parties out of the PC process altogether, and/or determine that she must make adjustments to her process for safety or other reasons.
ILA:
Madame Justice Audet referred to s. 59.6 of the Family Law Act, which “requires that the parties obtain independent legal advice prior to signing such an agreement for any resulting award to be enforceable”. (par 14, p 5).
PCs generally do require that PC clients receive ILA by requesting certificates of same. However since PCs conduct Secondary Arbitrations, ILA is not a mandatory requirement (see 59.7 Family Law Act) (but screening is) and therefore this is more of a “best practice” requirement than a statutory one.
“The Respondent Partner’s Participation/Interference in the Hearing”:
Some factors for a PC to consider when determining whether to allow a third party or support person to attend a hearing are: the impact of the person’s attendance on the process, whether the other party objects to such attendance, and the reasons for such objection. Another important issue to clarify would be whether that “support person” is attending as a witness, or truly as a “support person”, and whether the party does in fact legitimately require that support. That said, allowing a support person may be risky in the context of an arbitration, particularly if the other party objects.
Justice Audet concluded that the PC was correct in this case to allow the respondent’s partner to provide his input.
PC’s” Refusal” to Consider the Custody and Access Assessment
Justice Audet pointed out that the appellant did not produce this document in the context of the arbitration. It appears that he may have had the impression that the information he provided the PC during the intake may be used as evidence in an arbitration.
This issue serves as a reminder that, prior to any arbitration, the parties should be reminded that any information received by the PC during the screening remains confidential, and that they must re-submit any evidence the PC may have received during the non-decision making phase of the PC process if they wish the PC to consider it, this is despite the fact that the PC may rely on information she may have received during the non-decision making phase, i.e. before the arbitration.
PCs Being Held up to Standard of Trial Proceedings:
Justice Audet noted the test in Kainz v. Potter, (2006), which held that while Dr. Leonoff was expected to conduct his arbitration in a fair and equal manner, he was not necessarily expected to “….know nor to conduct his hearings as if he knows the minute and intricate details of trial proceedings, in Rules of Civil Procedure and the rules of evidence. He is not held up to that standard nor should he be.” (par 67, p 20).
Regardless, this is good news, since most PC clients choose PC as an Alternative rather than Additional Dispute Resolution Process! Despite these comments, it cannot be emphasized enough that arbitration in any context requires significant training.
It certainly begs the question of whether a PC who is a lawyer would be held to a higher procedural standard.
Conclusion:
Taking into account the consumers’ unqualified rights, the hybrid role of the PC and the specific provisions in the parties’ PC Agreement, Justice Audet determined that the appellant’s rights had not been violated.
It is refreshing to read a decision which addresses the legal grounds put forward by the appellant, in the unique context of the Parenting Coordination (PC) process.