Court File and Parties
COURT FILE NO.: 269/05
DATE: 20051221
SUPERIOR COURT OF JUSTICE - ONTARIO
DIVISIONAL COURT
RE: R.S. (applicant) v. A.S., philip m. epstein, q.c., joyce epstein and attorney general for ontario (respondents)
BEFORE: Justice Then
COUNSEL: Michael Charles, for the Applicant
Evelyn Rayson, for the Respondents
HEARD: November 10, 2005
E N D O R S E M E N T
[1] The Applicant wife moves under subrule 61.16(5) to set aside the order of the Registrar dismissing for delay the application for judicial review pursuant to rule 68.04.
[2] The Applicant, R.S., and the Respondent, A.S., are the mother and father of D.N.S who is their four year old son. The parents were separated in August 2003 and entered into two separation agreements as a result of mediation/arbitration agreements dated October 31, 2003, where Philip Epstein and Joyce Epstein were appointed arbitrators.
[3] The first agreement provided for custody and access whereby the child would live with his mother in Israel in circumstances where the child would visit the father in Canada and the father would visit the child in Israel as scheduled for a period of 2-3 weeks.
[4] The child visited the father in Canada as scheduled in January 2005 but sometime after this visit complained to his mother, his teacher and to others that he had been sexually abused by the father. Consequently, the Applicant refused to allow the child to visit the father in Canada for the scheduled Passover visit in April 2005.
[5] On April 20, 2005 the mother moved before the Israeli Court ex parte and obtained an order appointing a psychologist to investigate the allegations and an order preventing anyone from removing the child from the mother’s custody.
[6] On April 22, 2005 the father sought to convene an arbitration hearing and the arbitrators assumed jurisdiction.
[7] The arbitrators made the following award:
The mother is to return to Toronto with D.N.S before May 4, 2005.
Jewish Family and Child Service is to be notified in anticipation of the mother’s return to Toronto and asked to investigate the allegations made by the Mother and take such steps as are appropriate.
The father’s access to D.N.S is suspended pending an investigation and report from Jewish Family and Child Service as to the suitability of resuming access.
Jeffrey Wilson will be appointed to represent D.N.S and take such steps as are necessary to advance and protect D.N.S’s interest, and that the parties contribute equally to this cost.
[8] Prior to any application for judicial review the Respondent father brought a motion under s. 50 of the Arbitration Act, S.O. 1991, c. 17 to incorporate the terms of the arbitrators award into an order of the Superior Court.
[9] As the Applicant had done nothing to challenge the arbitration award either by way of appeal under the Arbitration Act or by way of judicial review, on June 13, 2005, Nelson J. issued his judgment incorporating the arbitration award granted by Philip and Joyce Epstein on April 22, 2005 into an order of the Superior Court.
[10] The Applicant appealed this order to the Court of Appeal by Amended Notice of Appeal dated October 17, 2005.
[11] The grounds of appeal are as follows:
The learned Trial Judge, having found that the child, D.N.S., born […], 2001 (hereinafter referred to as “D.N.S”), was not habitually resident in Ontario, erred in subsequently finding that the Court continued to have jurisdiction over the child pursuant to section 22(1) of the Children’s Law Reform Act.
The learned Trial Judge failed to give due consideration to the definition of habitual residence as set out at paragraph 22(2) of the Children’s Law Reform Act.
The learned Trial Judge, having found that D.N.S was not habitually resident in Ontario, failed to satisfy himself as to the cumulative criteria enumerated at section 22(1)(b) of the Children’s Law Reform Act.
The learned Trial Judge exceeded his jurisdiction by reading into section 22(1) of the Children’s Law Reform Act that a Court may find jurisdiction based upon the parties’ intentions on the issue of jurisdiction.
The learned Trial Judge erred in holding that the parties intended that the Arbitrators, and thus the Ontario Superior Court of Justice, continued to have jurisdiction after D.N.S moved to Israel with his mother.
The learned Trial Judge erred in that he did not conduct an analysis into the forum conveniens of the investigation into the allegations of physical and sexual abuse of D.N.S.
The learned Trial Judge failed to consider whether the Arbitrator had discharged his obligation to conduct the Arbitration in accordance with principals of equality and fairness pursuant to section 19 of the Arbitration Act.
The learned Trial Judge did not give adequate consideration to the Arbitrators’ lack of adherence to the principals of natural justice and procedural fairness pursuant to the Statutory Power Procedure Act, R.S.O. 1990, Chapter S. 22 as amended, and the common law.
The learned Trial Judge failed to dispose of the relief requested in the Appellant’s Notice of Cross-Motion.
[12] The appeal is scheduled to be heard on January 11, 2006.
[13] On July 11, 2005 the Applicant, R.S., who is the mother of the child D.N.S, issued and served an application for judicial review of the decision of the arbitrators which was rendered on April 22, 2005.
[14] On October 20, 2005, the Registrar dismissed the application for judicial review for delay having found that the Applicant had not perfected the application pursuant to the rules within the time prescribed by rule 68.06(3).
[15] The Applicant then moved under subrule 61.16(5) to set aside the order of the Registrar pursuant to rule 68.06(4).
[16] It is common ground that the three-fold test which the Applicant must meet has been correctly stated by Benotto J. in Chiu v. Financial Water Technology Inc., [2004] O.J. No. 4048 as follows:
(i) show a bona fide intention to appeal
(ii) give a reasonable explanation for the delay; and
(iii) demonstrate that the justice of the case requires the extension
[17] Given the view I take of this motion I propose at this stage to deal only with the third aspect of the test outlined above.
[18] The grounds for the application for judicial review alleging jurisdictional errors are as follows:
(i) the Decision failed to consider and apply section 19 of the Arbitration Act concerning procedural rights to which the Respondent was entitled;
(ii) the Decision was reached through denial of the principals of natural justice pursuant to the common law and the Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22, as amended;
(iii) several findings of fact made by the Arbitrators were based on no evidence or arbitral notice without substantiation tantamount to no evidence;
(iv) the Decision contained no consideration of the relevant conflict of laws principles or the impact of the jurisdiction assumed by the prior Decision of the Tel Aviv District Court dated April 20, 2005;
(v) the Decision failed to consider section 22 of the Children’s Law Reform Act.
[19] It would appear to me that whatever the merits of the issues raised in the application for judicial review, all of the issues raised by the application for judicial review will be expeditiously dealt with by the Court of Appeal on January 11, 2006 by way of appeal of the order of Nelson J. I can see no useful purpose in raising the same issues by way of judicial review and thereby risking further delay in the resolution of these issues if the Applicant pursues this course. Under such circumstances I cannot accept that either the justice of the case or judicial economy requires that the judicial review be reinstated by setting aside the Registrar’s order at the present time even if the other aspects of the test for setting aside the Registrar’s order are met. This case cries out for prompt resolution and that will be accomplished by the Court of Appeal on January 11, 2006.
[20] In my view, it is not in the interests of justice to reinstate the judicial review at this time and accordingly the motion to set aside the order of the Registrar is dismissed without prejudice to renew the motion once the decision of the Court of Appeal is rendered.
[21] It is appropriate in the circumstances to adjourn the present motion sine die pending the decision of the Court of Appeal so that the present motion may be renewed on 7 days notice before a judge of the Divisional Court in the unlikely event that the Court of Appeal does not dispose of all the issues raised by the application for judicial review in the context of the appeal from Nelson J. It is also appropriate to order that the Applicant not be prejudiced by any delay from the time of the initial application to this court for a reinstatement of the judicial review and the decision of the Court of Appeal in the appeal from the order of Nelson J. insofar as any further application for a reinstatement of the application for judicial review is concerned.
[22] If the parties cannot agree on the issue of costs, brief written submissions should be filed within 30 days of this decision.
Then J.
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