Judges don’t want to make parenting decisions: Simpson

By Jennifer Brown, Senior Editor

Divorce is difficult for everyone in a family, but when parents can’t agree on matters related to their children, it can be beneficial to call on the services of a mediator or parenting co-ordinator, says Toronto family lawyer Erin Simpson.

There are generally five areas where spouses disagree the most when it comes to parenting their children after divorce, and judges don’t want to be the final arbiter on those matters, Simpson tells

“Whether it’s a major issue around custody or scheduling activities for the kids, I always encourage resolution outside of court. Judges do not want to hear parenting issues,” says Simpson, founder of Erin Simpson Family Law.

“I always say if you can go to parenting mediation, do it. You have more control over the process, and you choose the mediator. You can’t select the judge if you go to court.

“Parties have to realize they are going from a romantic partnership to what is essentially a business relationship, and that takes some getting used to and a different way of communicating. I find it does not benefit the kids to see you arguing if you’re communicating in a way that’s hostile or disrespectful.”

The top five areas of dispute Simpson sees most often with parents include:

1. Residential schedules

Arriving at a schedule concerning where the children will live can be fraught with complications, says Simpson.

“I’m seeing this more and more with my clients. While they are able to come up with a schedule, the parties are still counting days, hours and minutes to make sure it’s all equal,” she says. “I also have clients who don’t have regular 9-5, Monday to Friday work schedules, so we have to be creative in coming up with a residential schedule.”

2. Decision-making

Simpson says parents often disagree about major issues such as religion, education and health.

In a case earlier this year in Toronto, the parents could not agree on vaccinating their children and ended up before an arbitrator who sided with the mother who was opposed to having the children vaccinated.

While an arbitrator can help sort things out, the decision is binding, so consider the repercussions before moving forward, says Simpson.

3. Where the children attend school

The dispute may be about one parent wanting the children to attend private versus public school, or whether the school can meet a child’s academic or physical needs, says Simpson.

“There could also be a financial reason, but more often than not the school’s location is just not convenient for one parent,” says Simpson.

“I had two instances recently where the issue had to go to court. In one, the judge actually said to the parties: ‘Why am I making this decision? Why am I deciding where your children should go to school?’ But at the end of the day, they needed the judge to step in.”

4. Scheduling of activities

Deciding which after-school activities the children will do, during whose allocated custody time, and who will pay for it can all be contentious issues, says Simpson.

In this situation, a parenting co-ordinator — a neutral third party who can help minimize conflict and help parents learn effective communication skills — may be able to help, she says.

Even if you are in the court process, independent parties can get involved to help resolve issues, says Simpson.

“I was in court recently over activities for the children, and the judge said: ‘What do the children want?’ One child was telling mom one thing and dad another thing. So we got a Voice of the Child report where a neutral party speaks to the kids to find out if they really want to do swimming,” she says.

5. Basic communication

Simpson says how the parents communicate with each other can contribute to disagreements.

“When a couple has been through the court process, they often become so polar opposite in their positions that they need a judge to make a decision — and that means someone is going to walk away not as happy,” she says.

“If you can’t re-establish the trust lost in the separation, it doesn’t matter how you try to resolve it, you’re set up for failure. I always suggest parties look into a parenting co-ordinator, even just to work on communication.”

A mediator or parenting co-ordinator can help overcome roadblocks that parents have when speaking to each other, and give them tools they can use in future disputes, Simpson says.

“A mediator will listen to your concerns and what works for you and your family, and then try to help you come up with a middle-ground plan that both sides can live with,” she says. “It’s a time- and cost-effective way to reach a resolution without litigating in court. It empowers the parties because they have a say — they take control of the process more so than you do in court.”

A parenting co-ordinator can assist when there is a particular dispute or a recurring pattern of failing to communicate efficiently, says Simpson. They can teach techniques to co-parent or communication techniques to avoid disputes in the future and help develop a parenting plan.

“The earlier you can resolve the parenting issues, the better. That’s why I tell clients to get into mediation now and get working on a parenting plan. Let the lawyers work out the financial and other issues, but you guys work on the parenting plan now and try to stay out of court,” she says.

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