What happens when parents have joint custody of a young child, and can’t communicate regarding major parenting issues? Often, parties will agree to a dispute resolution process of mediation, followed by arbitration if there is no resolution through mediation.

In the recent case of Wainwright v. Wainwright (2012 Ont. S.C.J.), the judge was quite concerned about the inclusion of such a clause in a final order, even though both parties consented to it.

The parties were the parents of a four-year-old girl. They separated when she was one year old, following an incident when the father was charged with assault. He subsequently pleaded guilty.

Both parties had been having significant time with the child since separation. They had not spoken since separation. They had very different views regarding the child’s schooling and other major issues. The judge said that this case was characterized by

an overwhelming lack of trust of the other one on the part of both parties, significant level of fear on the part of Mrs. Wainwright in relation to Mr. Wainwright and an inability to communicate with each other directly on any issue.

The parties’ attempts to use a communication book were not successful and there was no communication by text or email.

At trial, the parties consented to a clause whereby any parenting issues where there was no agreement would be resolved through a process of mediation, followed by arbitration if necessary.

The judge had concerns about the extent of the mother’s fear of the father and the father’s difficulty in focusing on the needs of the child when they conflicted with his own needs. She ordered that the parties consult with each other regarding any major decision regarding the child’s health, education or welfare. With respect to where the child was to attend school, if there was no agreement, the mother was given final decision-making authority.

However, if the parties were unable to agree on other parenting issues, they were required to attend an intake for mediation. If mediation did not proceed, or if it did proceed and was unsuccessful, the parties could either proceed to arbitration or commence a court process.

Despite the fact that the parties had agreed to a dispute resolution clause requiring them to mediate and then arbitrate any disputes, and that they reached such an agreement through experienced counsel, the judge found that she was not bound to include that dispute resolution clause in her order, as such a clause was not in the best interests of the child in these circumstances.

The inclusion of such a clause could stop the parties from going to court to deal with disputes involving the child.

The evidence in this case regarding the power imbalances left the judge with serious concerns about whether it was appropriate to include mandatory mediation and arbitration. The power imbalances could lead to the case not being appropriate for mediation or arbitration.

Mediators accredited by the Ontario Association for Family Mediation (OAFM) are required to screen for power imbalances, and either adjust their processes accordingly, or decline mediation where indicated. Arbitrators are required by the Ontario Arbitration Act to screen for power imbalances.

It was appropriate to require an intake for mediation, but if the power imbalances at that time or about that issue indicated that mediation was not appropriate, the best interests of the child required that the parents have recourse to the court process.

The judge struck a balance between the parties’ expressed desire to address issues through alternative dispute resolution processes and the child’s need to have decisions made, in the event that power imbalances made such processes inappropriate.