Other than proceeding with a court action, family law litigants have options to resolve their divorce matter through mediation, arbitration, or other alternative dispute mechanisms. Some of these options may be more cost-effective and suitable depending on the dynamics between the parties. In some cases, however, such as highly contentious matters, the parties may only be able to proceed with the court after other alternative dispute mechanisms have not assisted. Also, even after a trial, there may be continuing issues involving parenting or other contentious matters.
In a recent Alberta Court of Appeal decision, SSG v SKG, 2022 ABCA 379, the Court of Appeal found that a trial judge could not order the parties to arbitrate, as the courts remain an open avenue for the parties to pursue their claims. In this article, we will discuss the SSG case to consider when a court may find an order to arbitrate inappropriately.
The case involved the parents of two children aged 10 and 8 at the time of trial. The trial began after five years of disputes between the parties, primarily regarding parenting and child support issues. The parties were involved with years of case management. Their trial was originally set for 10 days but was ultimately 26 days over 14 months, as the trial was interrupted by COVID-19, with 300 pages of written submissions. The parties also had an assessment report that recommended shared parenting of the children, and the trial judge ultimately made the same conclusion.
Both parties were seeking shared parenting on different schedules. At the trial’s beginning, the mother sought primary parenting and decision-making because the father was perpetuating family violence, involving emotional, psychological, and financial abuse through coercive control over the mother and children. After the trial continued after the COVID-19 pandemic, the children suddenly told their therapist that they did not want anything to do with their father. There were also concerns that the mother was coaching the children to provide answers to assist her litigation strategy.
The court found that while the mother argued that she was more suitable and had more time to care for the children, it was not in the children’s best interests for the mother to be the primary parent for the children, as there was a risk that she would damage the children’s relationship with the father. Ultimately, the court ordered a week-on/week-off schedule so that the children could spend sufficient time with each parent. The court ordered a detailed Parenting Plan to ensure clarity and limit conflict, which the parents could vary by consent.
After separation, both parties wanted to remain in the family home. The mother did not have family in Calgary, where the parties stayed, and she was not working. She was, therefore, the children’s primary parent for a period of time. When the father sought shared parenting, the mother threatened to move back to Vancouver with the children, and the father was concerned about losing his relationship with the children.
The parties obtained an assessment report, which recommended shared parenting, as the children had good relationships with each of the parents when spending time with them separately. An update to the report confirmed that the mother prompted the children to provide a negative account of their time with their father.
Conflict over parenting continued while the parties lived in the same home. They were unable to compromise through mediation or resolve matters through arbitration. The parties also obtained a parenting coordinator by court order. The trial judge ordered that with consent from both parties, they could retain a Parenting Coordinator with arbitration powers who could resolve conflicts regarding the parenting plan or decision-making. The parties could apply to the Parenting Coordinator to review parenting decisions.
Ultimately, the parties did not agree to retain a Parenting Coordinator with the ability to arbitrate but were ordered to do so at a subsequent hearing.
The parties were also not permitted to apply to vary the amount of child support as follows:
“ After setting out the ongoing amount of child support payable by the father to the mother pursuant to s. 9 of the Guidelines, the Order also directed that:
78. The parties shall not bring any application to vary this amount unless the Father’s line 150 income deviates upwards or downwards by more than 20%, or if the Mother’s income increases by more than 50% from its 2020 level of $184,348.00.
79. The Mother shall not be permitted to bring an application for variation of this amount based on a decrease in her income.”
On appeal, the court found that the parties could not be ordered to arbitrate their matter with a Parenting Coordinator without their consent. The court found that a party could bring any dispute before the court based on the principle of access to justice. The court needs the ability to compel the parties to resolve their matter through a private adjudicator. The court can delegate its power to private arbitrators if legislation allows it to do so.
In the SSG case, the parties had no agreement to submit to a parenting coordinator with the ability to arbitrate.
Also, according to the Divorce Act, the court is required to consider a variation application where there has been a material change in circumstances. The Court of Appeal found that while the trial judge was well-intentioned in trying to limit litigation and conflict between the parties, limiting the parties’ ability to vary child support based on specific changes to either party’s income was not appropriate, given the legislation.
While it may be suitable in some cases to retain a parenting coordinator to deal with parenting conflicts, the court cannot compel parties to arbitrate with a parenting coordinator. The courts remain an open avenue for dispute resolution, and the court cannot limit the parties’ ability to apply for child support if there is a material change in circumstances.
In high-conflict situations, as in SSG, especially regarding parenting issues, courts cannot order alternative or out-of-court dispute resolution without their consent. In high-conflict cases, there may be no choice but to proceed with the court if no compromises can be made to progress with mediation, arbitration, etc.
Even if both parties are found to be capable and loving parents, co-parenting can be a highly contentious matter. In high-conflict divorce cases, it may be necessary to proceed with trial if alternative dispute mechanisms have failed to progress the case. Our family law lawyers at Mincher Koeman are experienced in assisting parties with high-conflict parenting issues. Our Calgary family law lawyers are dedicated to finding the best resolution for you and your children after divorce.
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