Enforcing Agreements and Determinations in Parenting Coordination

Enforcing agreements and orders, those relating to parenting anyway, is difficult enough in family law disputes. Enforcing agreements and determinations in the context of parenting coordination, whose users are preternaturally predisposed to conflict, is another problem of another magnitude altogether.

In general, agreements reached in the parenting coordination process can be enforced like any other family law agreement, either under the law of contracts, which can be a bit cumbersome, or under whatever specific provisions may be available under the local family law legislation for the enforcement of agreements. (In most cases, agreements filed in court can be enforced as if they were court orders.) Determinations are enforced under either the local arbitration legislation, using the general scheme applicable to the enforcement of arbitrators’ awards, or the family law legislation, in those jurisdictions lucky enough to have explicit statutory provisions for parenting coordination. (In most cases, determinations can be enforced either as if they were court orders or through a judgment for enforcement granted upon application.)

None of these alternatives are particularly efficient or particularly effective, as most family law lawyers are painfully aware. Being able to file agreements or determinations on parenting issues isn’t much help when the remedies available for the enforcement of orders on parenting issues are grossly inadequate to begin with. (For an overview of lawyers’ complaints about the enforcement of parenting orders across Canada, see my 2013 article “Enforcing Orders for Access: The Views of the Family Law Bar” at 32:2 Can Fam L Q 117.) As a result, a parent dedicated to ignoring inconvenient agreements and determinations can easily frustrate the parenting coordination process, much to the annoyance of the other parent and that of the hapless parenting coordinator, with little by way of personal consequence.

In this article, I’ll discuss two partial solutions to the problem of enforcement in parenting coordination: building the ability to report to the court into the parenting coordinator’s retainer agreement; and, creating a process for the enforcement of agreements and determinations through the reallocation of the parenting coordinator’s fees. (A third partial solution is used in Ontario, issuing costs awards when a dispute must be resolved by a determination, and I’ll briefly mention why I’m not a fan of the approach.) If other workable remedies exist, I’d love to hear about them; please send me an email or describe them in a comment to this article.

Reporting to the court

I expect that one of the factors motivating many trial judges to send certain litigants off to parenting coordination is a completely understandable wish to have nothing further to do with them. That’s fair enough. However, counsel should carefully consider the extent to which the trial judge should be allowed to slip free of future involvement with the family; the court’s supervisory function can provide invaluable assistance in the parenting coordination process.

It may be prudent to ask the trial judge to seize themself of the parenting aspects of the file in two circumstances: where parents have demonstrated a significant inability to work together as well as a willingness to either flout or creatively reinterpret interim orders; and, where the parenting arrangements resulting from trial are untested and substantially depart from the pre-trial status quo, and therefore constitute a bit of a risk. In such cases, the order appointing the parenting coordinator should:

1. stipulate that the trial judge remains seized of specific issues, usually issues relating to the implementation of, and the parties’ compliance with, the parenting plan and the agreements and determinations made in the parenting coordination process;

2. provide that the parenting coordinator either may report to the court as and when the parenting coordinator deems appropriate, will report to the court at specific intervals, or will report to the court at the request of the judge;

3. describe the potential subject matter and content of the parenting coordinator’s reports; and,

4. address responsibility for the professional fees likely involved in the reporting process.

(While the second and third points can and should be covered in the parenting coordinator’s participation agreement, it will be helpful to have all terms included in the appointing order so that the parents are on notice that their post-trial conduct is under scrutiny by not just the parenting coordinator but by the judge who heard their trial, and that there may be financial consequences should the court’s involvement be required.)

The point of this exercise is to provide a direct path from non-compliance and other misconduct to the desk of a judge, and not just any judge but a judge who knows the parties and the factors stimulating conflict in the case, and is therefore more likely to be willing to enforce the trial order, as well as the agreements and determinations made in the parenting coordination process. Ultimately, reporting requirements are intended to result in speedier enforcement at lesser provocation, while encouraging the parents toward better day-to-day behaviour generally.

Reallocating the parenting coordinator’s fees

It is often helpful to have an enforcement mechanism available within the parenting coordination process itself so that the parties can avoid filing agreements and determinations in court or paying their parenting coordinator to report to the judge. Without taking special steps to create such a mechanism, however, parenting coordinators are singularly powerless to enforce the agreements and determinations made in the process. Finger-wagging, stern lectures and other chastisements are rarely effective with people so superlatively devoted to conflict, and parenting coordinators can hardly suspend a decision-making power, limit parenting time or revamp a communication protocol to punish a party for their misbehaviour.

Money, on the other hand, provides an almost universal point of leverage. Especially when an expense to one comes at a corresponding savings to the other.

Most of the parenting coordination participation agreements I am familiar with contain a provision giving the parenting coordinator the discretion to depart from the equal allocation of their fees between the parties in certain circumstances. An agreement from Ontario, for example, provides that:

Notwithstanding the terms of this Agreement with respect to payment for services as stated above, the Parenting Coordinator may modify this allocation if it is found that one parent is using the services disproportionately and, as a result, is causing the other parent greater expense. In addition, either parent may request that the fees be reallocated at any time during the PC’s tenure. Any decision will follow the same process as that required for the arbitration function of the parenting coordination.

In addition to reallocating fees, the Parenting Coordinator shall have the authority to impose an award of costs if required to arbitrate any issue.

(Note the provision for awards of costs.) A participation agreement from British Columbia says this:

Except as the Authorizing Instrument otherwise provides, the Parents will share the Parenting Coordinator’s fees, disbursements and other charges equally and the Parenting Coordinator has the discretion to reapportion the payment of fees, disbursements and other charges between the Parents where the Parenting Coordinator concludes it is appropriate.

My parenting coordination agreement provides that:

The parties agree that they are each responsible for paying one-half of the Parenting Coordinator’s accounts, and that the Parenting Coordinator may from time to time adjust the sharing of the cost of particular services between the parties if in his opinion it would be unfair that the parties be equally responsible for the cost of those services as a result of the behaviour of a party.

I have recently begun using this term of my agreement as the foundation of a process that can be triggered by a party and may result in the reallocation of my fees from the presumptive equal apportionment, in fixed amounts ranging from $50 to $250, as the parties may in advance agree.

The process begins when one party reaches the conclusion that the other has breached an agreement or determination made in the larger parenting coordination process or, sometimes, the final order itself. The party sends a complaint to me by email, copied to the other party, that (a) states the specific term of the specific agreement or determination the complaining party believes the other party to have breached, (b) clearly describes how the other party has breached the specific term of the agreement or determination, and (c) provides evidence of the other party’s breach, including, in the case of breaches concerning written communications, a copy of the communication with the offending passage or passages clearly indicated. The purpose of these threshold requirements is to:

1. ensure that the parties must put actual effort into making a complaint, thereby diminishing the volume of frivolous complaints;

2. place as much of the factual burden on the complaining party as possible (I really don’t want to have to pore through emails to find the offending passage or hunt through pages of agreements and determinations to guess which term of what is said to have been breached);

3. force the complaining party to be as specific and as clear as possible in stating the nature of their complaint; and,

4 . encourage the complaining party to reflect on the gravity of the alleged breach and the fundamental merits of their position when gathering the evidence to prove their complaint.

I then review the complaint and the evidence provided in support of that complaint, and, after consulting with the other party, determine whether the other party has likely breached the specific term of the agreement or determination as described by the complaining party. The purpose of this step is to give the other party a limited opportunity to explain themselves and produce any countervailing evidence, satisfying my obligation to provide fundamental justice while still allowing me to make a prompt decision resolving the complaint.

If I conclude that the other party has likely breached the specific term of the agreement or determination as described, I summarize my conclusions about the breach in an email sent to both parties. If the breach is the other party’s first breach of the specific term of the agreement or determination, I explain how the agreement or determination was breached, clarify any misunderstandings that may have played a role in the breach, and issue a warning against future breaches. If the breach is not the other party’s first breach, then I reallocate the fees in my next statement of account by the fixed amount previously agreed to.

Here’s what I like about this process:

1. it provides an expedient means of addressing non-compliance that is triggered at the request of a party;

2. it places responsibility for enforcement on the shoulders of the parties themselves, and thus mitigates any misperception that I somehow have the time to oversee day-to-day observance of the agreements and determinations that are made;

3. it empowers the parties to take corrective action within a defined, limited and simplified framework, and thereby bleeds off some of the discontent caused by feelings that the parenting coordination process isn’t fast enough, agile enough or responsive enough;

4. the outcome is consistent and predictable, which is what I feel is often lacking when punitive costs awards are made in the parenting coordination process; and,

5. it reduces frivolous complaints by requiring a modest degree of evidentiary rigour.

It is critically important that the parties understand that the process is revenue neutral and that the parenting coordinator therefore lacks a financial incentive to decide that breaches have occurred. If my statement of account comes to $1,000, for example, each party would normally be required to pay $500 as their one-half share. However, if one of the parties has been found to have breached an agreement or determination, a $100 penalty would be added to their share while being deducted from the share owed by the other party, resulting in the guilty party being required to pay $600 of my $1,000 bill and the complaining party having to pay $400.

As I mentioned at the outset, if other workable remedies exist, I’d love to hear about them; please send me an email or describe them in a comment to this article.