One of the most challenging aspects of a separation can be coming to an agreement about custody and parenting time: where the children will live, how decisions will be made, where they will go to school, how holidays will be spent and the list goes on. When parents don’t agree about how decisions should be made or what living arrangements should be in place, the conflict can take over and take hold. With each parent firmly believing he or she is right, positions can become entrenched and it can be difficult to move past a stalemate. When this happens, what options are available to parents to help them move forward?
Below are some of the options available both in and out of the court process. Every situation is unique and will require its own solution based on all of the factors in the case but hopefully these suggestions can provide a starting point for frustrated parents looking for a way through.
Office of the Children’s Lawyer
If your matter is in court, you can ask for the Office of the Children’s Lawyer (“OCL”) to be appointed. If the court agrees, both parents will have to complete an Intake form for the; the OCL will review the Intake and decide if the Office will become involved.
If the OCL does elect to become involved, they will either provide a clinical investigator to conduct a family assessment or a lawyer to represent the views of the children, depending on the ages of the children and the issues of the case.
If an assessment is to be completed, the investigator will meet with both parents and the children, if appropriate. The investigator may also seek information from others involved with the children, such as school officials, medical professionals, daycare providers etc. Once the assessment is completed, the investigator will hold a disclosure meeting and will review the information collected and his or her recommendations about custody and access. If no agreement is reached, a report will be prepared. The report will be provided to the court and the investigator can be called to give evidence.
If a lawyer is appointed to represent the views of the children, the lawyer will meet with the parents and children as well as others involved with the children. The lawyer will attempt to determine the wishes of the children and make recommendations to the parents on ways to resolve the issues. If the matter cannot be resolved, the lawyer will take a position before the court that will consider the children’s wishes and other information about the family. No report is filed with the court.
More information can be found here about the Office of the Children’s Lawyer.
Custody and Access Assessments
If the parents are not in court or the OCL does not become involved in the matter, they can hire someone to conduct a private custody and access assessment. This can be done by a social worker, psychologist or other mental health professional. The parents will be required to pay the fees of the assessor, which will vary based on the assessor’s background and the scope of the assessment to be completed. It is important that the assessor who is hired has the appropriate skills and expertise to deal with the issues involved in the particular matter.
The process of a private assessment will be similar to that undertaken by a clinical investigator with the OCL. The assessor will meet with the parents and children, along with other individuals involved with the children and family. He or she will seek information that will be helpful in determining what custody/access arrangements are in the best interests of the children. The assessor will prepare a report with his or her recommendations about custody and access. If the parents cannot agree, the report can be filed with the court as evidence.
Collaborative Family Law
Collaborative Family Law is a process which is aimed at resolving the issues in a non-confrontational, constructive, and healthy way. This suggestion may seem counter-intuitive; I’ve described a situation in which the parents are fighting, not communicating and clearly not collaborative. If, however, each parent is willing to participate, the collaborative process can have the effect of de-escalating the conflict. With the use of family professionals to assist the parents communicate about difficult situations, parenting schedules and arrangements that haven’t been considered may be discovered. Options that have been discussed and rejected can be adjusted into a workable solution. The Collaborative process is not just for parents who “get along” and may in fact be even more important in cases where the parents are in conflict.
For information about Collaborative Lawyers in Ottawa, please click here.
Mediation and Arbitration
Mediation is a process during which a neutral third party will assist parents to reach a negotiated solution. The mediator will listen to both parents to understand their point of view and help the parties to find a solution that both parties will agree to. It is important to note that the mediator does not make the decision.
In Arbitration, the parties will hire a trained Arbitrator to resolve the dispute. Each parent will put forward his or her case, similar to the way they would in a court process. The Arbitrator will then make a decision. This may be a particularly helpful process if the parents aren’t in agreement over a particular aspect of custody or access, such as where a child will attend school.
In cases where parents are having difficulty implementing a parenting plan in a Court Order or Separation Agreement, a Parenting Coordinator is an individual who can assist to resolve disputes around parenting. Generally, the use of a parenting coordinator is appropriate when other methods of dispute resolution have been unsuccessful and communication between the parents is difficult. The role of the Parenting Coordinator is to assist parents to successfully implement their parenting plan and to help the parents become more effective communicators and problem solvers. If the parents cannot agree about a particular aspect of the Parenting Plan, for example, a holiday schedule, a Parenting Coordinator will try to mediate the dispute. If the parents still can’t agree the Parenting Coordinator will make the decision. Parenting Coordinators usually are retained to work with parties for a specified time period.
Please note that the above is not legal advice, and is only meant to provide you with general information. If you have questions about custody and access, or any other family law matter, please do not hesitate to contact our Family Department.