Making appropriate parenting arrangements when there has been a history of family violence can be challenging but, for many families, that is just the first step: once an agreement or court order is in place, the parents must then find ways to make it work, sometimes for many years.
This is not easy, as many abusers continue to engage in harassing, threatening and violent behaviours, using arrangements for the children as their weapon. Legal bullying can carry on long after formal legal proceedings have ended and the abuser may refuse to comply with court orders or attempt to manipulate the details (for example, picking up or returning children outside the ordered schedule, making decisions about issues that are not theirs to make). These kinds of behaviours are part of the abuser’s campaign to prove that they are still in charge of the family.
Parenting coordinators (PCs) can assist parents who are having difficulties implementing their parenting plan and/or following a court order while minimizing conflict. A PC can help people with problem solving, communication, conflict resolution and reaching compromise solutions.
While a PC cannot make major changes to parenting time or decision making responsibility or when there is a dispute about relocation of the children, they can – if the parents are not able to come to an agreement themselves – make decisions that bind the parents about other matters as long as they reflect the best interests of the child.
Like other forms of family dispute resolution (FDR), PCs can play an important role even when family violence (FV) is present. However, there are a number of special considerations in those cases. Following are some tips for family law legal advisors who may be considering suggesting PC for a client.
If you are representing a survivor of family violence, do your own FV screening, using the Department of Justice HELP toolkit as your guide.
In particular, pay attention to the kinds of family violence your client is dealing with. Both the Divorce Act and Ontario’s Children’s Law Reform Act include a comprehensive definition of family violence that includes coercive control, which is further explained in the toolkit as “a pattern of cumulative behaviours aimed at dominating or controlling a partner.” Exposure by children to family violence constitutes family violence in and of itself.
Remember that family violence – including coercive control and psychological abuse – almost always continues post-separation, often peaking in frequency and seriousness in the first months after the partners have split. This ongoing abuse can include legal bullying, which escalates as family court matters unfold, and often includes a refusal by the abuser to follow court orders coupled with threats to take away parenting time from the other parent.
Your client may be experiencing trauma because of the abuse. As a result, she may have trouble concentrating, find decision-making difficult, not be able to regulate her emotions, be disengaged/appear to be uncooperative and/or have difficulty expressing herself freely and fully. Before making a referral to a PC, consider how her trauma may affect her ability to engage effectively with that process.
Are there immediate safety issues that could affect the appropriateness of working with a PC?
Is the abuser someone who may be able to charm the PC into seeing his perspective over your client’s?
Before you make a referral, check out any potential PCs. Do they have proper training on family mediation and family violence/power imbalances? Have they had experience with cases involving FV? Do they subscribe to a standard of practice (for example, FDRIO’s Standards for Parenting Coordination in Ontario)? What safety mechanisms do they use in their work?
Even if you think a PC could be helpful, if your client does not, listen to her and don’t push her into something she is not comfortable with. She knows better than anyone what to expect (and fear) from her ex-partner.
If your client is someone against whom a finding of FV has been made in family court, ask yourself whether they will use the PC as intended or be inclined to try to manipulate that process to their own advantage. Will they try to deplete their former partner’s finances by insisting on turning to the PC unnecessarily or will they refuse to engage with the PC when their partner needs them to?
Encourage your client to participate in programming to address their past FV, which should include opportunities for them to acknowledge what they have done as well as learn new ways of behaving, including how to de-escalate at times of conflict.
Remind them of the importance of staying focused on what is best for the children and discourage them from using the PC to repeatedly raise issues that have already been settled or to intimidate or belittle their former partner.
PCs can play an important role in helping parents manage raising their children even when FV is a factor. However, as the HELP toolkit notes: “Abusive ex-partners may use FDR [including PC] as an opportunity to threaten or control their ex-partner.”
Parent coordination is not for every family, and family lawyers have an important role to play in determining what is best for their client.
This article was originally published by The Lawyer’s Daily, part of LexisNexis Canada Inc.