14 August 2020
Parenting Coordination and fee equity: What’s fair?
I’m not quite sure if this is a blog or a rant – or perhaps it’s something in between? In any case, it’s about how parents, lawyers, and indirectly the courts, determine the allocation of fees shared by parents who work with a Parenting Coordinator.
A Parenting Coordinator (PC) acts as a neutral third party, helping to resolve ongoing parenting disputes using mediation (consensus building). When agreements cannot be reached, a PC can make binding decisions on certain issues that are then enforceable by the courts.
PCs like myself typically work with higher conflict parents, and so one of our goals is to reduce or minimize both their sources of conflict and the anxiety which comes not only from dealing with potential conflict at all hours of the day or night but the anxiety arising from having to pay for it as well.
Financial insecurity looms large on the anxiety index for divorced parents, particularly if they have been involved in longer-term litigation and the financial and emotional costs associated therewith.
Each time I am asked about fee-sharing for PC clients, I promote the sharing of fees as though they were an expense pursuant to s.7 of the Child Support Guidelines (based on the parents’ incomes). Note that I said “as if” they were a s.7 expense. They don’t qualify as special expenses, but there is nothing to stop the court from ordering, or the parents from agreeing, that the fees will be shared in proportion to the incomes of the parties as defined by the Child Support Guidelines.
While unequal sharing of the fees is inconvenient for the PC from an accounting perspective, the unequal sharing of the fees is, in my mind, a much fairer way to manage the cost of working with a PC.
As with mediation in general, power balancing can be an important element of the work of a PC. Power balancing in the context of PC work involves being aware of costs and who is generating them.
If the fees are being shared equally and there is a significant income disparity between the parents, it can be financially abusive for the parent with “the deeper pockets” to overuse the process driving up costs for the other parent who may then, in a worst-case scenario, feel the need to compromise when it may not be in the best interests of a child to make such a compromise.
If, on the other hand, the fees are being shared based on the s.7 formula, the parent with less income may not feel the same pressure to compromise contrary to the best interests of a child since each parent is paying based on (generally speaking) their relative ability to do so.
The BC Parenting Coordinators Roster Society does include provisions in its model agreement which allow PCs to reallocate the distribution of fees if they feel one parent is undermining the process or creating issues that are primarily intended to cause anxiety. In other words, we have some discretion with which to leverage consequences to those we believe are intentionally creating roadblocks. However, reapportioning fees causes me…anxiety, as it can introduce a new issue to an already fraught situation. Consequently, it’s my preference that the starting point is the s.7 option for sharing fees.
The distribution of fees is only one consideration for counsel in negotiating settlements, but it is worthy of careful consideration where a PC is being considered because, in the longer term, it can be a significant equity issue for parents… and who needs more anxiety?
Craig Neville, K.C. is a Associate Counsel in our Family Law Group and has over 35 years of experience advocating for families in transition.