Resolving Parenting Disputes with Cooperative Solutions

A court battle is not the best approach for resolving most parenting disputes and parenting arrangements. Not for separated parents – not for extended family members, and most of all – not for children!

Litigation pits parents against each other in family law disputes. While parents were happy to see the children enjoy the company of the other parent when they were together, after separation, they come up with every allegation they can think of to criticize and keep that same parent away from the children. They “shoot at” each other in their affidavits and in their oral evidence at trial, intensifying family law disputes. They attempt to assassinate each other’s character. Children see themselves as part of each parent, and most children want to love and feel close to both parents. The court process harms children who are caught in the middle of family law disputes.

In a 2020 decision of our Ontario Superior Court, Justice Kurz tried his best to caution lawyers who too often fan the flames of parents who choose litigation at a vulnerable time, when they feel angry, hurt, betrayed, and anxious about their future. He had some serious words of warning for lawyers:

The famous American trial lawyer, Louis Nizer, once wrote, “when a man points a finger at someone else, he should remember that four of his fingers are pointing at himself.” This was directed at lawyers who pride themselves on their aggressive family law advocacy.

Justice Kurz also echoes what many parents discover too late:

Often high-conflict parents and their lawyers forget that once the war is over, the financially and emotionally drained family still has to pick up the pieces. And the children whose best interests are the central concern can leave their field of battle scarred for life.

Given the destruction to the family: financially, and emotionally, with lengthy delays in reaching a conclusion, we remain hopeful that good lawyers will help parents find a resolution to their disputes without going to court.

After practicing law for over 30 years, I welcome more cooperative options. In collaborative law or mediation, parents can be educated and encouraged to separate from each other while preserving their children’s emotional and spiritual well-being. While recent changes to The Divorce Act and our Ontario family law legislation require family lawyers to educate their clients about out-of-court options, they do not require a lawyer to encourage such approaches – even in appropriate cases.

Key Factors in Choosing a Cooperative Approach: Some questions to ask yourself?

• What Families are Appropriate for a more Cooperative Approach?

o Couples who can put their children’s needs ahead of their own hurt feelings.
o Couples who do not have a history of violence, threats to their safety, or the safety of other family members.
o Individuals who can speak freely about their needs and proposals for the children without fear can engage in a respectful, even if difficult, conversation.

• What are the Benefits to Parents and Children of a Non-Adversarial Option?

o Reduces the negative emotional impact of separation on children.
o Reassures children that both parents will continue to remain engaged in their lives.
o Allows both parents to participate in a meaningful way in their children’s development.
o Often reaching a resolution faster, at less cost, and that is designed to fit your family’s unique needs.

• What Skills are important for Parents to Succeed?

o A recognition is that almost all children require a healthy relationship with both parents and a caring extended family.
o An effort to put aside personal hurt, disappointment, and anxiety about the future in the hope of finding a more positive outcome that benefits the family.
o A willingness to listen respectfully to the other person, without necessarily agreeing.

• What are examples of Out-of-Court Options?

o Mediation: Couples resolve issues with the assistance of a neutral family professional
o Collaborative Law: 2 Lawyers and a team of financial and child specialists assist in resolving issues.
o Mediation-Arbitration: An effort is made to resolve as many issues as possible in mediation and for those that cannot be resolved, the neutral professional makes a binding decision.

• What Professionals offer such Out-of-Court Options?

• Mental health professionals, lawyers, financial professionals, and others who receive special training.

• How do such Options compare in Cost, Time, and Success rate to litigation?

o Most cases are resolved in a fraction of the time, at considerably less cost and with a very high success rate. Couple create their own resolution with professional assistance, not one that is imposed on them by a judge.

Thanks to all family professionals who are advocating non-adversarial options. Let’s hope we can work together to better protect children of separating families from what can be an emotionally stressful transition. The benefits will be felt by the entire family.

Adapted from an article originally published in Law 360 by Tom Dart, June 28,2023.
Tom is a Family Mediator, Arbitrator and Lawyer.

Dr. Barbara Landau is President, Separation Pathways and a Family Mediator, Arbitrator, Lawyer and Psychologist.