This Appeal considered the limits of a Trial Judge in a high-conflict family law dispute. Following a 27-day Trial over 23 months, the Parties could not agree on the final terms of the Order despite a detailed parenting plan and terms contained in the Judgment (the “Order”). Thus, the Trial Judge prepared the Order for them. The Order required the Parties to retain a parenting coordinator with powers to arbitrate day-to-day parenting plan conflicts or decision-making conflicts. The Order also limited the circumstances in which the Parties could apply to vary the child support.

Citing new developments since the closing of evidence, the father successfully applied under Rule 9.13 to vary the terms of the Order. Rule 9.13(b) states that “At any time before a judgment is entered, the Court may … on application, and if the Court is satisfied there is good reason to do so, hear more evidence and change or modify its judgment or order or reasons for it”. Rule 9.13 Applications are decided by the Judge or Applications Judge who granted the original Judgment or Order.

After the Trial Judge varied the Order under Rule 9.13, the mother appealed it on the grounds that arbitration was imposed on the Parties without their consent, and that the Order improperly restricted the Court’s jurisdiction to vary the child support for the Parties. The Court of Appeal allowed the Appeal.

Writing for the Court, Kirker J.A. noted that despite the Trial Judge’s noble intention to discourage ongoing litigation, a Judge does not have the jurisdiction to order Parties to arbitrate their disputes, unless the Parties agree or are required to do so by statute. There was no agreement and no statutory requirement for the Parties to use a parenting coordinator to arbitrate their parenting disputes. 

Lastly, the Court of Appeal noted that neither the Divorce Act, RSC 1985, c 3 (2nd Supp) nor the Federal Child Support Guidelines, SOR/97-175 authorized the Trial Judge to limit the circumstances in which the Parties could apply to vary the child support.