Court File and Parties
COURT FILE NO.: FS-20-19879 DATE: 20220107
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: RANDI JOY COGAN SHINDER, Applicant AND: NEIL ALLEN SHINDER, Respondent
BEFORE: Kimmel J.
COUNSEL: GARY JOSEPH and KIRA BECK, for the Applicant DARYL GELGOOT and VANESSA AMYOT, for the Respondent
HEARD: December 9, 2021
Appeal Endorsement
[1] The applicant/appellant appeals two arbitration awards of Arbitrator Alfred Mamo (the “arbitrator") dated October 1, 2020 and October 13, 2020 (individually, the “Award” and collectively, the “Awards”), on the grounds that he:
a. had no originating jurisdiction to hear and determine any of the issues raised in the proceedings before him because there was no family arbitration agreement signed in compliance with the prescribed form, rendering both Awards a nullity; or
b. exceeded his jurisdiction under the agreement to arbitrate by hearing and deciding issues relating to the parties’ obligations with respect to expenses incurred in relation to their former matrimonial home (the “Forest Hill property”) prior to its sale, and the appellant’s holdback of funds from the respondent’s share of same (the “Forest Hill property expense accounting”), which were not expressly identified in the agreement to arbitrate as a dispute that would be subject to the dispute resolution process and referred to arbitration, rendering the October 1, 2020 award relating to that issue a nullity; and/or
c. in the alternative to (b) above, made palpable and overriding errors in his findings and failed to act on cogent evidence that the appellant asserts clearly contradicted his award on the Forest Hill property expense accounting issue; and/or
d. exceeded, or misconstrued, his jurisdiction under section 7 of the parties’ June 25, 2012 separation agreement as amended and supplemented by their February 27, 2014 minutes of settlement (collectively, the “agreement to arbitrate”) by hearing and deciding certain of the claims relating to the children’s expenses that the appellant asserts were not within the expressly identified categories of the children’s expenses that were subject to reimbursement and that would be subject to the dispute resolution process and referred to arbitration under the agreement to arbitrate.
Factual Background
[2] The parties, Randi and Neil Shinder (referred to as “Randi” and “Neil” in various previous awards and memoranda), were married on July 28, 1996 and separated on September 9, 2009. They were subsequently divorced. They have two adult children, Samantha aged 23 and Benjamin aged 22.
The Relevant Agreements
[3] The parties entered into three agreements, the latter two of which are relevant to the outcome of this appeal:
a. A marriage contract dated January 28, 2005;
b. A separation agreement dated June 25, 2012; and
c. Minutes of Settlement dated February 27, 2014.
[4] Section 6 of the separation agreement contained a dispute resolution clause, requiring the parties to negotiate and then mediate their disagreements arising from that agreement, to be followed by an arbitration (with the same person appointed to mediate) if no resolution was achieved. Specifically, paragraph 6.1 states: “Except as otherwise provided in this Agreement, if Randi and Neil disagree about a term(s) of this Agreement which provides for resolution by way of dispute resolution, they will try to resolve the issue(s) through negotiation,” and if they are not able to resolve the issue(s), negotiation was to be followed by mediation (para. 6.2) and then arbitration (para. 6.6).
[5] Certain issues were specifically referred to mediation/arbitration under these dispute resolution provisions if the parties could not agree. These issues include, without limitation, paragraph 5.5, which provides that, “If the parties are unable to agree as to whether an expenses [sic] should be shared, they will resolve the issue pursuant to the dispute resolution section of this Agreement.”
[6] Paragraph 18.11 of the separation agreement requires that any amendments to it must be in writing, signed by the parties, dated, and witnessed.
The Children’s Expenses
[7] Section 5 of the separation agreement deals with child support. The parties agreed in paragraph 5.2 to “equally share all of the Children’s expenses which include: the housekeeper expenses for the Children which are mutually agreed upon, tutor, music lessons for Samantha, orthodontic expenses, the Children’s cell phones and plans and other expenses for the Children that the parties agree upon in writing (including by way of email and text messages).” They further agreed to reconcile these expenses at least quarterly, and clarified that they were not to include housing and day-to-day expenses of the Children in each party’s home. Disputes about the sharing of these expenses were (by virtues of paragraph 5.5) among those specifically identified for dispute resolution.
[8] The dispute resolution provisions contained in section 6 of the separation agreement did not provide for, or contemplate, that the parties would execute a further, separate mediation/arbitration agreement. Mr. Alfred Mamo was subsequently agreed upon by the parties as the mediator/arbitrator. No separate mediation/arbitration agreement was signed by the parties appointing him, but his appointment was confirmed through an exchange of correspondence between counsel.
[9] The February 27, 2014 minutes of settlement were entered into as part of a mediation that the parties attended under the separation agreement. They varied, replaced, and/or expanded upon some of the terms of the separation agreement (in particular, those contained in section 5 of the separation agreement relating to child support and expenses), and clarified many of the specific children’s expenses that were to be shared proportionally between the parties.
[10] Specifically, paragraph 7 of the minutes of settlement provides as follows:
The parties will equally share the following children's expenses:
a. Medical and dental expenses, not covered by a plan held by either party;
b. Tutoring;
c. Cell phones;
d. Purchase or lease of a car and car insurance, gas and repairs for the children on their own car;
e. Camp and camp related purchases;
f. High school tuition, school trips, computer and books;
g. All expenses relating to the children exploring, choosing and applying to University;
h. University tuition, residence (or equivalent living expenses re: rent), meal plan, textbooks and trips to and from school;
i. Extracurricular activities (including hockey, soccer, football and singing) and equipment;
j. Any other expense agreed upon in advance in writing;
k. March of the living and other vacations taken by the children on their own; and
l. Any clothing purchased by Lina or by the children directly.
[11] The minutes of settlement provide at paragraph 12 that “paragraphs 5.2 to 5.5 of the separation agreement are no longer in force and effect and are replaced with paragraphs 7 to 11 herein.”
[12] The minutes of settlement provided at paragraph 11 that "[i]f the parties are unable to agree as to whether an expense should be shared pursuant to paragraph 7, they will resolve the issue through summary arbitration with Alfred Mamo". These minutes of settlement did not provide for, or contemplate, that the parties would execute a further, separate arbitration agreement. No separate written arbitration agreement was signed by the parties when their dispute regarding the children’s expenses was submitted to him for arbitration.
The Forest Hill Property Expense Accounting
[13] Paragraph 9 of the separation agreement provided that each party would be equally responsible for all costs associated with the Forest Hill property not covered by any rental income received for that property. Randi was responsible for preparing, on a semi-annual basis, a schedule of ongoing expenses (excluding the interest on the mortgage for which she was to be solely responsible for the ongoing expense of). Neil was required to reimburse Randi for 50% of these expenses.
[14] The minutes of settlement set forth the parties’ agreement in paragraph 5 thereof, that “[t]here will be no adjustments between the parties with regard to the Forest Hill Home expenses. For clarity, neither party owes the other any funds pursuant to paragraphs 9.08, 9.16, 9.17(e) and 9.18 to 9.20 of the Separation Agreement. Randi confirms that she is solely responsible for the payment of all expenses for the Forest Hill property up to and including the day it was sold that remain outstanding.”
[15] Paragraph 20 of the minutes of settlement provides generally that “[i]f there are any disputes arising from the terms of these Minutes, they will attend for Mediation with Alfred Mamo to resolve.” There was no specific agreement to refer any dispute relating to the Forest Hill property expenses to arbitration.
The Arbitrator’s Memoranda and Awards to Date
[16] Over a period of seven years after their execution of the separation agreement and the minutes of settlement, the parties engaged in an ongoing process of mediation/arbitration with Mr. Mamo to address a number of issues arising from the breakdown of their marriage. In total, Mr. Mamo issued sixteen arbitration memoranda and five arbitral awards (including the two Awards under appeal) as follows:
a. Arbitration Award dated March 31, 2015;
b. Arbitration Memo dated October 13, 2015;
c. Arbitration Memo dated January 11, 2016;
d. Arbitration Memo dated January 18, 2016;
e. Arbitration Award dated January 18, 2016;
f. Arbitration Memo dated April 7, 2016;
g. Arbitration Memo dated April 15, 2016;
h. Arbitration Memo dated June 4, 2016;
i. Arbitration Memo dated September 3, 2016;
j. Arbitration Memo dated July 8, 2018;
k. Arbitration Memo dated December 17, 2018;
l. Arbitration Memo dated February 7, 2019;
m. Arbitration Memo dated May 24, 2019;
n. Arbitration Memo dated September 6, 2019;
o. Arbitration Memo dated November 13, 2019;
p. Arbitration Memo dated December 17, 2019;
q. Arbitration Memo dated December 23, 2019;
r. Arbitration Memo dated January 15, 2020;
s. Arbitration Award dated January 27, 2020;
t. Arbitration Award dated October 1, 2020;
u. Addendum Arbitration Award dated October 13, 2020.
The Process Leading to the Awards Now Under Appeal
[17] Early on in the process, Randi believed that Neil had been breaching various terms of their separation agreement, minutes of settlement, and an interim award made by Mr. Mamo in 2015 regarding the children’s expenses. The first arbitral award issued by the arbitrator, dated March 31, 2015, dealt with oral motions of the parties arising out of the implementation of the minutes of settlement, including certain of the children’s expenses. The parties thereafter engaged in a lengthy period of dispute over various issues, including the children’s expenses, that morphed, after a number of delays and missteps, into the parties’ motions that were heard by the arbitrator on February 20, 2020 and the Awards that are now under appeal.
[18] Each party sought reimbursement from the other with respect to expenses incurred on behalf of the children. Motions were brought (Randi’s amended motion was dated May 22, 2019 and Neil’s motion was dated February 6, 2019). The parties agreed that their respective motions would be heard and decided by Mr. Mamo, and they submitted their motions to him for determination. These motions were the subject of the Awards now appealed from.
[19] The motions proceeded based on a written record, supplemented by oral submissions by counsel for each party who appeared, with the parties, before the arbitrator. In the course of these submissions, the Forest Hill property expense accounting issue was also raised for the arbitrator’s consideration.
[20] After receiving the Awards, the appellant changed counsel and appealed them.
The Standard of Review on Appeal
[21] The appellant relies upon the Supreme Court of Canada’s decision of Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, paras. 50 – 55 that dealt with administrative tribunals in the context of labour and employment law. At paragraph 51, the Supreme Court held that questions of fact, discretion, and policy as well as questions where the legal issues cannot be easily separated from the factual issues generally attract a standard of reasonableness while many legal issues attract a standard of correctness.
[22] The appellant contends that the standard of review when dealing with an arbitrator's decision relating to jurisdiction is the standard of correctness, where no deference is paid to the arbitrator's decisions. The Supreme Court stated the following at paragraph 50 of Dunsmuir:
[I]t is also without question that the standard of correctness must be maintained in respect of jurisdictional and some other questions of law. This promotes just decisions and avoids inconsistent and unauthorized application of law. When applying the correctness standard, a reviewing court will not show deference to the decision maker's reasoning process; it will rather undertake its own analysis of the question. The analysis will bring the court to decide whether it agrees with the determination of the decision maker; if not, the court will substitute its own view and provide the correct answer. From the outset, the court must ask whether the tribunal's decision was correct.
[23] The Supreme Court of Canada released its decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th) 1, that updated the standard of review that courts should apply to decisions of administrative tribunals, including arbitration awards. The new test is more flexible but does not change the “correctness” standard of review on questions of jurisdiction, which are the main focus of this appeal. There is a debate in the jurisprudence on the impact of Vavilov on statutory appeals from arbitral awards. It is unclear how Vavilov impacts earlier jurisprudence for example, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633, and Teal Cedar Products Ltd. v. British Columbia, 2017 SCC 32, [2017] 1 S.C.R. 688, which both emphasize the importance of deference to arbitrators decisions.
Issues to be Decided
[24] This appeal raises the following issues for the court’s determination:
a. Did the arbitrator have the jurisdiction to make an arbitration award or are the Awards a nullity?
b. If he did have jurisdiction, did he exceed his jurisdiction:
i. By dealing with the Forest Hill property issue, which is not covered by the arbitration provisions of the parties’ agreement to arbitrate?
ii. By misconstruing and/or misinterpreting the scope of the issues to be arbitrated as provided for in the agreement to arbitrate with respect to certain of the competing claims for reimbursement of the children’s expenses?
c. If he did have jurisdiction to deal with the Forest Hill property issue, did he make palpable and overriding errors in his determination of that issue?
Summary of Outcome
[25] For the reasons that follow, the appeal of the arbitrator’s October 1, 2020 Award dealing with the children’s expenses is dismissed and the appeal of the arbitrator’s October 13, 2020 Award dealing with the Forest Hill property expenses is allowed.
Analysis of Issues
[26] I will address the issues that have been identified for the court’s determination in order as the outcome of some issues impacts the outcome of others, and also impacts the extent to which the court should deal with, in particular, some of the alternative arguments.
The Originating Jurisdiction of the Arbitrator
[27] This has been framed as an appeal under s. 45 of the Arbitration Act, 1991, S.O. 1991, c. 17 and the appellate standard of review therefore applies.
[28] The appellant’s primary argument on this appeal is that the arbitrator had no originating jurisdiction to hear the motions and make the Awards, or to make any of his earlier awards and directions, because the parties did not ever sign a “family arbitration agreement” in the prescribed form under s. 2 of Family Arbitration, O. Reg. 134/07 made under the Arbitration Act (the “Regulation”). As discussed above, the standard of review is correctness on a question of jurisdiction, which is a question of law and/or legal principle: Vavilov, at paras. 63 – 64 and Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. The arbitrator was not asked to rule on his originating jurisdiction, so the court’s review of his jurisdiction for purposes of this aspect of the appeal will be a de novo review and the presently unresolved question of whether any deference would need to be afforded to a decision on his originating jurisdiction does not arise.
Threshold Question of Waiver
[29] As a preliminary matter, the respondent questions the appellant’s ability to challenge the arbitrator’s jurisdiction, relying heavily on s. 17(3) of the Arbitration Act, which provides that a party who objects to an arbitrator's jurisdiction must raise the objection by no later than the beginning of the hearing. Relying upon the cases of The Piazza Family Trust v. Veillette, 2011 ONSC 2820, at paras. 69 – 73 and Nasjjec Investments Ltd. v. Nuyork, 2015 ONSC 4978, at para. 152, the respondent argues that the appellant has waived her right to object now on appeal to the arbitrator’s originating jurisdiction, which she only challenged for the first time in the context of the appeal. [^1]
[30] The difficulty with this position is that these cases, decided outside of the family law context, appear to be inconsistent with s. 4 of the Arbitration Act, which provides, more generally, as follows:
Waiver of right to object
4 (1) A party who participates in an arbitration despite being aware of non-compliance with a provision of this Act, except one mentioned in section 3 [contracting out], or with the arbitration agreement, and does not object to the non-compliance within the time limit provided or, if none is provided, within a reasonable time, shall be deemed to have waived the right to object. [Emphasis added.]
Exception, family arbitrations
(2) Subsection (1) does not apply to a family arbitration.
[31] Non-compliance with a provision of the Arbitration Act, or more specifically its Regulation, is precisely the basis of the appellant’s objection to the originating jurisdiction of the arbitrator in this case. There can be no “deemed waiver” of the appellant’s right to object to what the parties agree in this case was a “family arbitration” by virtue of s. 4 of the Arbitration Act, so it would be incongruous to conclude that a failure to object to the jurisdictional failure said to arise from this very same non-compliance could nonetheless lead to a s. 17(3) waiver. The cases relied upon by the respondent were not decided in the family law context and this potential inconsistency was not discussed.
[32] In the context of the family arbitration in this case, I am not satisfied that the s. 17(3) requirement to object early can be construed as a waiver of the right to object to the arbitrator’s jurisdiction on appeal or that it could cure an absence of originating jurisdiction if that were to be the court’s determination. The potential relevance of s. 17(3) and the nature and extent of any jurisdictional objections that may have been raised by the appellant, will be revisited later in this endorsement in the context of the Forest Hill property issue.
[33] Since the arbitrator was not asked to rule on his originating jurisdiction, because the appellant did not raise the issue before him, this court’s consideration of the arbitrator’s originating jurisdiction will start from first principles.
The Source of the Arbitrator’s Jurisdiction
[34] The appellant is correct that, when we are dealing with the originating jurisdiction of an arbitrator, he/she either has jurisdiction or does not. There is no middle ground. As the Court stated in J.N. v. Durham Regional Police Service, 2012 ONCA 428, 284 C.C.C. (3d) 500, at para. 25:
The law has long been clear […] that jurisdiction is fundamental to a court or tribunal's authority to deal with a matter. Jurisdiction is not optional, cannot be conferred by consent, cured by attornment, or assumed voluntarily just because there is an interesting and significant issue to be considered. [Citations omitted; emphasis added.]
[35] An order made without jurisdiction is a nullity regardless of whether the parties consent to jurisdiction or otherwise seek to attorn. See Rothgiesser v. Rothgiesser, 46 O.R. (3d) 577 (C.A.), at paras. 18 – 20; Leonard v. Booker, 2007 NBCA 71, 321 N.B.R. (2d) 340, at para. 24. Although these cases were decided in the context of a determination of whether the originating jurisdiction existed under a statutory regime, whereas by definition, the originating jurisdiction of an arbitrator is typically conferred by agreement of the parties and therefore can be impacted by the parties’ conduct (including conduct that in another context might be characterized as consent or attornment), I accept the basic premise from these cases to be applicable in the arbitration context, in that the originating jurisdiction must be found to exist.
[36] An arbitrator’s originating jurisdiction would typically come from the agreement of the parties who appointed them. The appellant acknowledges that the source of the arbitrator's authority in this context is the agreement, and does not flow from a statute: see: Blustein v. Blustein, 2011 ONSC 1888, at para. 5; Kucyi v. Kucyi (2005), 206 O.A.C. 113 (S.C.D.C.)
[37] The appellant relies upon the following recent decision of Shore J. on a motion for leave to appeal an arbitration award and for a stay pending appeal, in A.A. v. R.R., 2021 ONSC 2984, at para. 31, wherein she stated:
An arbitrator's authority and powers stem from the arbitration agreement. If there is no signed arbitration agreement, there is no jurisdiction to arbitrate a case. The arbitrator's authority is limited to deciding only those questions that are set out in the arbitration agreement.
[38] The comments in that case about the necessity for a “signed arbitration agreement” were obiter. That was a case in which there was a signed arbitration agreement and a corresponding consent order, and the issue was whether leave to appeal on a question of law (jurisdiction) should be granted. The reliance placed by the appellant on this case begs the question of what constitutes an arbitration agreement for purposes of conferring jurisdiction on an arbitrator.
The Parties Did Execute an Arbitration Agreement
[39] An “arbitration agreement” is defined in s. 1 of the Arbitration Act to be “an agreement by which two or more persons agree to submit to arbitration a dispute that has arisen or may arise between them.” Section 5 of the Arbitration Act allows for an arbitration agreement to be oral or written and provides that it can be part of another agreement.
[40] The parties did sign an agreement to arbitrate (the separation agreement, as amended and expanded by the signed minutes of settlement) that contained a dispute resolution provision that provides for arbitration of certain disputes. This agreement to arbitrate is a valid and binding arbitration agreement within the meaning of the Arbitration Act. [^2] Mr. Mamo was appointed by the parties to mediate/arbitrate certain disputes arising under those agreements. The existence of the agreement to arbitrate within the separation agreement and minutes of settlement is not disputed. The appellant’s challenge is a technical one, namely that there was no separate signed “family arbitration agreement.”
The Parties Did Not Execute a Family Arbitration Agreement in the Prescribed Form
[41] A “family arbitration” is defined in s. 1 of the Arbitration Act to mean an arbitration that,
a. deals with matters that could be dealt with in a marriage contract, separation agreement, cohabitation agreement or paternity agreement under Part IV of the Family Law Act, R.S.O. 1990 c. F.3, and
b. is conducted exclusively in accordance with the law of Ontario or of another Canadian jurisdiction.
[42] A “family arbitration agreement” and “family arbitration award” have meanings that correspond to the meaning of “family arbitration”: Arbitration Act, s. 1.
[43] I find that the agreement to arbitrate is a family arbitration agreement, the arbitration was a secondary family arbitration, and the Awards were family arbitration awards. Section 2.1(1) of the Arbitration Act provides that “[f]amily arbitrations, family arbitration agreements and family arbitration awards are governed by this Act and by the Family Law Act.” Pursuant to subsection 2.1(2), if there is a conflict between those two statutes, the Family Law Act prevails.
[44] The parties’ separation agreement clearly falls within the definition of a separation agreement under ss. 51 and 54 of the Family Law Act. The disputes that were the subject of the Awards under appeal involved matters that were dealt with in a separation agreement. The arbitration of disputes relating to the ongoing management or implementation of matters covered by a separation agreement is considered to be a “secondary arbitration” under s. 59.7(2) of the Family Law Act. More precisely, the dispute resolution provisions of the separation agreement come within the meaning of a mediation-arbitration agreement under s. 1 of the Regulation, because it is a family arbitration agreement that provides that:
(a) a mediation between the parties is to be conducted before any arbitration is conducted; and
(b) if the mediation fails, the mediator shall arbitrate the dispute and make a binding resolution of it.
[45] Section 2 of the Regulation sets out standard provisions that must be included in a signed family arbitration agreement (or more particularly in this case, a secondary mediation-arbitration agreement), which shall:
a. Require that the arbitration be conducted in accordance with the laws of Ontario (or another Canadian jurisdiction) and the applicable laws of Canada;
b. Permit an appeal either in accordance with s. 45 of the Arbitration Act, or on any one or more of:
i. A question of law,
ii. A question of fact, or
iii. A question of mixed fact and law.
c. Name the arbitrator; and
d. Provide the arbitrator’s confirmation:
i. To treat the parties equally and fairly in the arbitration, as s. 19 of the Arbitration Act requires;
ii. That they have received the appropriate training approved by the Attorney General; and
iii. That the parties were separately screened for power imbalances and domestic violence and the results of the screening have been considered and will be throughout any arbitration conducted.
[46] The agreement to arbitrate signed by the parties in this case deals with family law matters but does not contain these prescribed standard provisions. The appellant points to a line of authority in which the court declined to imply the prescribed standard provisions under the Regulation into an existing arbitration agreement: such as Horowitz v. Nightingale, 2017 ONSC 2168, para. 45. In Horowitz, the court concluded that the parties clearly contemplated that there would be a further secondary document called an “agreement to arbitrate,” and they envisaged a circumstance in which such an agreement might not be reached: at para. 48. See also Magotiaux v. Stanton, 2020 ONSC 4049, paras. 20 – 23 and 30, in which the court declined to stay a court application in favour of an arbitration that was contemplated by a parenting agreement that did not contain the prescribed standard provisions under the Regulation, and which the court found could not be implied into the parenting agreement.
[47] I have not been asked to, and agree that I should not, imply the prescribed standard provisions under the Regulation into the parties’ agreement to arbitrate.
[48] The appellant contends in her Notice of Appeal that the arbitration (and the Awards) are, thus, a nullity for lack of jurisdiction and should be set aside under s. 45(6) of the Arbitration Act. On appeal, s. 45(5) of the Arbitration Act allows the court to, among other things, confirm, vary, or set aside the award. I do not agree with the appellant’s submission. There is no specific provision of either the Arbitration Act or the Family Law Act, or the regulations under these statutes, that renders the Awards a nullity simply because the secondary family arbitration in this case was not conducted pursuant to a family arbitration agreement in the prescribed form.
Can the Arbitrator’s Originating Jurisdiction Come from the Arbitration Agreement Where There is no Signed Family Arbitration Agreement?
[49] The only specified consequence under the Family Law Act and Regulation for failing to include the prescribed standard provisions in a family arbitration agreement is that, under s. 59.6(1)(a) of the Family Law Act, a family arbitration award can only be enforced by the court if the family arbitration agreement complies with the Regulation.
[50] According to s. 50.1 of the Arbitration Act, family arbitration awards are enforceable only under the Family Law Act. Subsections 59.6(1)(a) of the Family Law Act makes it clear that a family arbitration award is enforceable only if: “the family arbitration agreement under which the award is made is made in writing and complies with any regulations made under the Arbitration Act, 1991.”
[51] Section 46(1)(10) of the Arbitration Act permits, but does not require, the court to set aside a family arbitration award if it is not enforceable under the Family Law Act. This provision of the Arbitration Act is not in conflict with the Family Law Act. Reading the two statutes together and harmonizing them leads to the conclusion that an award made pursuant to the family arbitration agreement that does not contain the prescribed standard provisions under the Regulation, while not enforceable by the court, is not necessarily a nullity as it remains within the discretion of the court to determine whether to set it aside under s. 46(1)(10).
[52] If a non-enforceable family arbitration agreement could never confer jurisdiction on the arbitrator, then there would be no reason to leave it within the discretion of the court to decide whether or not to set aside an award that is not enforceable. This is consistent with the starting point of the analysis of the originating jurisdiction, which must come from an arbitration agreement. As has already been determined, the parties did execute a valid and binding arbitration agreement that is contained in their agreement to arbitrate (which consists of their separation agreement/minutes of settlement).
[53] The jurisprudence to date dealing with the implications of an arbitrator proceeding without an agreement that meets the regulatory formalities of a family arbitration agreement has involved cases in which the arbitration had not yet occurred and the cases have primarily included a finding that the parties had clearly contemplated that they would execute a further, formal, enforceable, family law arbitration agreement to give the arbitrator their authority, but had not yet done so. See for example, Giddings v. Giddings, 2019 ONSC 7203, at paras. 19 (12), 29, and 45; Lopatowski v. Lopatowski, 2018 ONSC 824, at para. 58. In these circumstances, the court has commented in obiter about the need for the arbitrator’s jurisdiction to be conferred by a contemplated further family arbitration agreement, which the court was prepared to order the parties to execute: see Giddings, at para. 43.
[54] In one of the more recent decisions, the court concluded that it would uphold the parties’ express intention in signed minutes of settlement to mediate and then arbitrate disputes arising out of a settlement of family law matters by requiring them to sign a family arbitration agreement in the prescribed form, as a means of conferring jurisdiction upon the arbitrator even in the absence of a finding that they had contemplated entering into a further agreement: see Moncur v. Plante, 2021 ONSC 5164, at paras. 22 – 23, and 33. Insofar as this case might be interpreted to suggest that the prescribed form of family arbitration agreement is always required to confer jurisdiction upon an arbitrator in family arbitrations or secondary family arbitrations, with the greatest of respect to my learned colleague, I disagree if that was the intended conclusion.
[55] The Moncur decision did not engage in an analysis of the various statutory provisions, detailed above. The court did, however, expressly recognize at para. 15 that:
This matter touches on an unsettled area of the law which requires appellate review. The issues to be decided by the Court raise some difficulty when looked at in the context of the conflicting jurisprudence on the subject matter of family arbitration. Both sides are able to offer cases from the Ontario Superior Court of Justice which support their respective opposite positions. The Applicant relies upon the Court’s reasoning in Magotiaux v. Stanton, 2020 ONSC 4049, while the Respondent bases her position on Giddings v. Giddings, 2019 ONSC 7203.
[56] In the absence of any appellate guidance directly on point, I have tried to make sense of the previous decisions and the statutory framework that exists under both the Arbitration Act, the Regulation, and the Family Law Act on the specific and narrow question that I must decide in this case, which is concerned with when and how originating jurisdiction is conferred on the arbitrator.
[57] Where parties have entered into an arbitration agreement within the meaning of the Arbitration Act, but have contemplated that they will execute a further formal agreement pursuant to which the arbitrator will be granted the authority to hear and decide the issues put forward by the parties, the preponderance of decided cases have suggested that the arbitrator does not have jurisdiction until that further agreement is signed (and the parties may be compelled by the court to sign that further agreement).
[58] Conversely, where there is an arbitration agreement but no agreement to execute a further family arbitration agreement, as is the case here with the parties’ agreement to arbitrate, it is my considered view that originating jurisdiction can be, and I find that it was in this case, conferred on the arbitrator by the agreement to arbitrate despite the fact that it was not in the prescribed form of a family arbitration agreement.
[59] I find that the agreement to arbitrate, comprised of the signed separation agreement as amended and expanded by the minutes of settlement, constitutes an arbitration agreement within the meaning of the Arbitration Act that conferred originating jurisdiction upon the arbitrator to deal with the identified disputes. That includes the many disputes that he decided in his previous directions and awards, as well as the October 1, 2020 Award dealing with the sharing of the children’s expenses.
[60] The appellant’s request for the Awards to be set aside on the basis that the arbitrator lacked any originating jurisdiction to decide any dispute between the parties arising under their separation agreement and minutes of settlement is denied.
Practical Considerations and the Conduct of the Parties
[61] While it has been suggested by the appellant that this produces an impractical outcome where an award is made that cannot be enforced by the court, the outcome that the appellant contends for, which would render all of the previously rendered 16 Arbitration Memoranda and 5 Awards nullities for want of originating jurisdiction, is equally impractical and unsatisfactory.
[62] The respondent suggests that the court may take into consideration the underlying objectives of the prescribed standard provisions for family arbitration agreements, which were all met in this case: the arbitration was conducted by Mr. Mamo (whose appointment as arbitrator was confirmed by the parties’ counsel) pursuant to the laws of Ontario (and the applicable laws of Canada) pursuant to a written agreement to arbitrate that was signed by the parties when they were both independently represented by experienced family law counsel. There has been no suggestion that the arbitrator did not treat the parties equally and fairly during the arbitration, that he did not receive the appropriate approved training (he is a recognized and experienced family law practitioner, mediator, and arbitrator), or that there was any power imbalance between the parties.
[63] Furthermore, although the parties’ agreement to arbitrate did not specify a particular appeal route, this appeal raises grounds of appeal on questions of law and mixed fact and law and it proceeded on the basis that those grounds of appeal were available as a matter of right (e.g., it was not suggested that the appeal grounds should be limited to questions of law with leave of the court pursuant to s. 45 of the Arbitration Act). Rather, the respondent has de facto allowed the appellant to adopt the broadest appeal route that could have been prescribed if the standard provisions under the Regulation had been adopted.
[64] I agree that the objectives of the prescribed standard provisions to be included in family arbitration agreements were not offended by the conduct of the arbitration in this case. I am not obliged to declare the Awards a nullity for lack of jurisdiction simply because the parties’ agreements to arbitrate did not contain the prescribed standard provisions, and I am not prepared to do so in the circumstances of this case, which are quite unique.
[65] Here, the appellant, with the benefit of experienced legal counsel, not only willingly participated in the arbitration process but invoked it to her benefit over the course of many years, during which the arbitrator issued 5 Awards and 16 Arbitration Memoranda with directions. The court does not condone a party seeking to turn a prolonged arbitration process on its head after-the-fact simply because she does not like the outcome of the last decision. That is not in keeping with the primary objective under r. 2(2), (3), and (4) of the Family Law Rules, O. Reg. 114/99, and the need to ensure that the court’s process is invoked in a manner that is fair to all parties and that saves expense and time. What the appellant seeks to do in this case is antithetical to that objective, which the court is required to promote.
[66] I have not gone so far as to dispense with the requirement of the prescribed formalities for a family arbitration agreement, which the respondent suggests the court could do relying upon the authority of the Court of Appeal for Ontario in the cases of Geropoulos v. Geropoulos, [1982] O.J. No. 3179 (C.A.) and Owers v. Owers, 2009 ONCA 296. However, I do adopt the sentiment of the Court of Appeal in those cases, that the court should, where possible, overlook a failure to adhere to statutory requirements where the parties' intentions are clear and the implication of giving effect to those requirements would be "wholly inconsonant with the established policy of encouraging the settlement of disputed claims and recognizing and preserving the validity of settlements freely and properly entered into under advice": see Geropoulos, at para. 19. And the court should avoid interpreting legislation “in a way that would permit parties to withdraw at will from agreements properly entered into by their legal representatives during the course of litigation": see Owers, at para. 13.
[67] The appellant could have, but did not, apply to the court under s. 46(1)(10) of the Arbitration Act, which permits (but does not require) the court to set aside a family arbitration award if it is not enforceable under the Family Law Act. Even if I had been asked by the appellant to set the Awards aside under s. 46(1)(10) because the Awards are not enforceable under the Family Law Act, I would not have exercised my jurisdiction to do so in the circumstances of this case, for the reasons indicated above. Furthermore, some of the respondent’s estoppel arguments might have also been invoked to prevent the appellant from pursuing this request. Estoppel cannot be invoked to cure a lack of originating jurisdiction, but can be invoked to prevent a party from seeking the court’s assistance to set aside an award that was made through a process that she knowingly and willingly not only participated in but invoked.
Enforcement of the Awards
[68] Although reference was made during oral argument to the court making an order enforcing the Awards, this was not part of the relief that was sought by the respondent in his factum or in his confirmation form, both of which only requested that the court dismiss the appeal, with costs.
[69] If an application for enforcement were to be made by either party to the court pursuant to s. 59.8 of the Family Law Act, the court would not, as matters currently stand, be able to make an enforcement order because, by virtue of s. 59.6(1)(a) of the Family Law Act, a family arbitration award is only enforceable if the family arbitration agreement under which it was made complies with the Regulation. According to s. 50.1 of the Arbitration Act, family arbitration awards are enforceable only under the Family Law Act. [^3]
[70] The estoppel arguments that the respondent raised do not assist in overcoming this prohibition. Regardless of any conduct of the appellant that might give rise to an estoppel or even an argument of attornment, the court simply does not have the ability or statutory jurisdiction to enforce the Awards.
[71] I have not been asked, and am not going, to rule on whether, in the context of any future application to enforce the Awards, the court would or should order the parties and the arbitrator to sign a family arbitration agreement covering the arbitration that was the subject of the Awards in the prescribed form, nunc pro tunc.
[72] The examples of cases in which such mandatory orders have been made, relied upon by the respondent, were cases in which one party sought an order from the court to compel the non-co-operating party to sign a family arbitration agreement in the prescribed form prior to the arbitration proceeding, not after the fact: see Giddings, at paras. 19 (12), 29 and 45; see also Lopatowski and Moncur. The case that the appellant relies on for the contrary position is not inconsistent with these cases. The court explained that it was not prepared to order the parties to sign a further family arbitration agreement, even though it was contemplated by their parenting plan that they would do so, because the specific issues that the parties had agreed could be submitted to arbitration were not in play at the time. See Starkman, 2011 CarswellOnt 1333 (S.C.), at para. 9.
[73] Whether such an order might be made nunc pro tunc, after the fact in the context of an enforcement proceeding, is a matter for another court on another day. I will not comment on this point since it was not argued or fully briefed on the record before me.
[74] In the meantime, I do note that the parties have complied voluntarily with the many previous orders, awards, and directions of the arbitrator. They may choose to similarly, voluntarily, abide by the Awards with the court’s confirmation that the arbitrator had the jurisdiction to make them (subject to my rulings on the other grounds of appeal discussed in the remainder of this endorsement). That would be the most straightforward, practical, and reasonable approach, having regard to the effort, time, and expense that has already been undertaken to adjudicate the issues, which are now res judicata (to the extent of the arbitrator’s jurisdiction to deal with them).
[75] If not, then, at least insofar as the children’s expenses that were adjudicated by the arbitrator in the October 1, 2020 Award, and pending any application for enforcement, the parties will each be stuck having born the full cost of those expenses that they paid for. As I understand it, on an overall net basis, the appellant was ordered by the arbitrator to pay the respondent back approximately $3,000 in respect of the children’s expenses, whereas the respondent was ordered to pay the appellant back approximately $37,500 in respect of the children’s expenses. My understanding is that these amounts have not been paid to date.
Did the Arbitrator Exceed his Jurisdiction by the Awards Made?
[76] The standard of review is correctness on the question of whether the arbitrator exceeded his jurisdiction in any aspect of the Awards he made: see Vavilov and Housen.
[77] There are two different issues under this aspect of the appeal. First, there is the question of whether the arbitrator exceeded the jurisdiction that he was given by the parties by dealing with the Forest Hill property expense issue. Second, there is the question of whether he went beyond the scope of what was agreed by the parties that he could decide regarding certain of the children’s expenses not explicitly listed in the agreements to arbitrate.
[78] Unlike the originating jurisdiction question, which the arbitrator was not asked to decide, he did turn his mind in both Awards to the question of his jurisdiction when he decided the Forest Hill property expense accounting. While the law is unsettled in this area of appeals from arbitration awards, to the extent the arbitrator addressed jurisdictional considerations, this court’s review of those decisions, while subject to a correctness standard, will be considered on the basis that he is entitled to some deference on those determinations, as long as his decisions on these questions were reasonable.
The Forest Hill Property Expense Accounting
[79] Unlike the children’s expenses, the Forest Hill property expenses were not specifically identified in the separation agreement or the minutes of settlement as an issue that was subject to the dispute resolution provisions that could be submitted to be decided by an arbitrator.
[80] In an exchange of correspondence dated May 9, 2013 between counsel, it was apparently confirmed that the parties had agreed to a mediation/arbitration with Mr. Mamo of issues that included, among other things, the Forest Hill property expense accounting issue (specifically, the ongoing shared expenses reconciliation and payments). However, the Forest Hill property expense accounting was never identified in any signed agreement between the parties as an issue that could be submitted to arbitration, either before or after this exchange of correspondence.
[81] Following this exchange, the parties entered into the minutes of settlement, and engaged in a mediation/arbitration process that resulted in the first arbitral award dated March 31, 2015 and the last one dated October 13, 2020.
[82] By the time the minutes of settlement were executed in 2014, the sale of the Forest Hill property had closed. Over the next couple of years, the parties continued to disagree about the distribution of the sale proceeds. Randi sought to hold back Neil’s share due to the accounting for the children’s expenses that she claimed Neil owed her 50% of, and later she deducted from Neil’s share of the sale proceeds various Forest Hill expenses, which Neil disputed. This deduction of Forest Hill expenses from Neil’s share of the sale proceeds was one of the issues raised by Neil to be arbitrated by Mr. Mamo. In subsequent correspondence and attendances before the arbitrator the question of the arbitrator’s jurisdiction to deal with the Forest Hill property expense dispute was raised.
[83] In his initial October 1, 2020 Award, the arbitrator adjourned the Forest Hill property expense issue to give the parties the opportunity to sign the appropriate documentation to give him jurisdiction to deal with this issue, after concluding that an oral consent for him to do so was not sufficient. The arbitrator was subsequently directed by Neil to Randi’s affidavit sworn November 1, 2019 in which she stated: “Neil and I have agreed that the Arbitrator, Alfred Mamo (“Mr. Mamo”), may determine the issues related to the Forest Hill property.”
[84] The arbitrator clarified after being referred back to this evidence that he was aware that Randi had changed her original position with respect to his jurisdiction to deal with this issue, but that he had been suggesting in his earlier endorsement that it might be prudent to “paper” the agreement of the parties regarding his jurisdiction to arbitrate this issue.
[85] In his October 13, 2020 Award, the arbitrator concluded, without any further agreement having been signed, that since counsel for the respondent “does not seem to be concerned about my authority to deal with the matter and I have not heard from Mr. Moldaver, one way or the other [and] [g]iven the clear consent of the parties and the fact that Mr. Gelgoot wishes his client's claim to be dealt with based on the material before me, I will deal with the matter without making any further comment on the issue of jurisdiction.” He then went on to consider and decide this issue and ordered Randi to pay Neil $90,981 (the entire amount she had withheld from Neil’s share of the new sale proceeds, without any adjustments).
[86] I find that the arbitrator erred in law and in principle in proceeding to deal with the Forest Hill property expense accounting, implicitly on the basis that he had determined he had the jurisdiction to do so, even though he does not expressly rule on his jurisdiction after having noted it might be a problem in the absence of a further written agreement. The arbitrator’s rationale for deciding the Forest Hill property expense accounting issue, after initially declining to do so, is not reasonable. The fact that the respondent’s counsel did not appear to be concerned about the arbitrator’s jurisdiction to deal with the Forest Hill property issue, and that the appellant’s counsel stayed silent, were not sufficient to confer jurisdiction upon the arbitrator to deal with this issue.
[87] Given the previous challenges to his jurisdiction to deal with this issue, and the fact that neither the separation agreement nor the minutes of settlement specified that this was an issue that the parties had agreed would be subject to the dispute resolution provisions and submission to arbitration pursuant thereto, the arbitrator’s first instinct (expressed in the October 1, 2020 Award) that they needed to sign an agreement to give him the jurisdiction to deal with this issue was correct, and he erred in law and in principle in proceeding thereafter to decide this issue in his October 13, 2020 Award.
[88] While an agreement to submit a dispute to arbitration need not be in writing to qualify as an “arbitration agreement” within the meaning of ss. 1 and 5 of the Arbitration Act, if not in writing the agreement must be clear and unequivocal. Jurisdiction cannot be conferred by consent or attornment: see Durham Regional Police Service, at para. 25. In this case, the only referenced agreement between the parties to arbitrate the Forest Hill property expense accounting was not in writing. While there were affirmations of such an agreement having been reached in correspondence between counsel and in the appellant’s affidavit, the appellant had specifically challenged the arbitrator’s ability to deal with this issue and it was not one of the disputes that the parties had agreed to refer to arbitration under their agreement to arbitrate.
[89] The need for a written amending agreement is underscored by the fact that the appellant not only questioned the arbitrator’s jurisdiction to deal with this issue before she swore her affidavit, but did so afterwards as well. The uncertainty created by an oral agreement is problematic from an evidentiary perspective, but in this case the absence of a written amending agreement is determinative because the parties themselves prescribed it by the terms of their separation agreement, which is the arbitration agreement from which the arbitrator’s originating jurisdiction is derived.
[90] The separation agreement required that amendments to it had to be in writing. There was no written agreement to arbitrate the Forest Hill property expense accounting issue and therefore no valid amendment to expand the disputes to be submitted to arbitration under the dispute resolution provisions. In the absence of such, the arbitrator did not have the jurisdiction to deal with this issue in his October 13, 2020 Award and that Award is a nullity and should be set aside.
[91] Various arguments were raised by the respondent regarding the appellant’s failure to object to the arbitrator’s jurisdiction to deal with the Forest Hill property expense accounting at the outset of the arbitration. Section 17(3) of the Arbitration Act requires that a party who has an objection to the arbitral tribunal’s jurisdiction to conduct the arbitration shall make the objection no later than the beginning of the hearing or, if there is no hearing, no later than the first occasion on which the party submits a statement to the tribunal. Section 17(5) requires that a party who has an objection that the arbitral tribunal is exceeding its authority shall make the objection as soon as the matter alleged to be beyond the tribunal’s authority is raised during the arbitration. The arbitrator has the ability to extend the time for making these types of objections: s. 17(6).
[92] The obligation on a party to make a timely objection is tied to the arbitrator’s ability under s. 17(1) to rule on his own jurisdiction and, in that context, to rule on objections with respect to the existence or validity of the arbitration agreement. In this case, the appellant did raise various objections to the arbitrator’s jurisdiction to deal with the Forest Hill property expense issue. The appellant’s objections were acknowledged in the arbitrator’s October 1, 2020 Award. He did not expressly rule on these objections, but instead proceeded on the basis of a lack of concern regarding his authority on the part of the respondent and silence on the part of the appellant, “without making any further comment on the issue of jurisdiction.” In so doing, he implicitly did rule on his jurisdiction and I have found that his ruling was not correct and that he did not have jurisdiction to deal with this issue. His lack of jurisdiction is not cured by ss. 17(3) or (5) of the Arbitration Act.
The Children’s Expenses
[93] Each party sought an order for reimbursement of the children’s expenses from the other. Neil claimed that Randi should be required to reimburse him for $45,157 representing her share of the expenses he incurred, and the arbitrator only awarded him approximately $3,000 in expense reimbursements. Randi claimed that Neil should be required to reimburse her for $117,816.47 representing his share of the expenses she incurred, and the arbitrator only awarded her approximately $37,500 in expense reimbursements.
[94] Section 7 of the minutes of settlement contains a list of the children’s expenses that the parties agreed to share equally. It was the appellant’s position throughout the arbitration process that the arbitrator only had the jurisdiction to determine whether: (a) a particular expense fell within the listed categories, (b) it had been paid by one of the parties for the benefit of one or both of the child(ren), and (c) 50% reimbursement had already been made.
[95] The appellant complains on this appeal that the arbitrator rejected these limitations to his jurisdiction and found that he had a broader jurisdiction to also consider the reasonableness of the claimed expenses based on his application of principles of contract interpretation taken from the commercial context and applied to his interpretation of the separation agreement and minutes of settlement. She also complains that the arbitrator failed to promote the primary objective under r. 2(3) of the Family Law Rules, which includes the need for a fair procedure and emphasis on saving time and expense.
[96] On appeal, the appellate standard of review is palpable and overriding error for factually suffused questions of mixed fact and law and questions of fact such as contract interpretation, although correctness remains the applicable standard for errors of law and/or legal principle: Vavilov at paras. 36 – 38; Housen.
[97] On either standard of review, the appellant fails on this ground of appeal.
[98] Of the 16 expenses for which Randi sought reimbursement from Neil, the arbitrator agreed that 6 should be reimbursed in full, and 4 should be reimbursed in part. Where the arbitrator did not order Neil to reimburse Randi, or did not order him to reimburse her in full, he found either i) that the expense did not fall within one of the categories set out in the Minutes; ii) that Randi had not provided sufficient evidence to show that she had incurred the expense or that it related to the children; or iii) that Neil should not be responsible for reimbursing Randi for the portion of the claimed expense that related to Randi personally (rather than for one of the children).
[99] The arbitrator did not adopt a reasonableness test, as the appellant contends. Rather, he applied a plain reading of the parties' agreement. There was no error of legal principle. The concept of reasonableness was only introduced to enable the arbitrator to determine which portion of a mixed expense claimed by Randi involved her own, as opposed to the children’s, accommodation and travel (when she went with Sam to look at schools and when she stayed with Ben for a period of time in Miami). The arbitrator stated this was necessitated by the absence of details provided by Randi in her evidence. He did not pass judgment on the reasonableness of the expense, but rather on a reasonable amount to attribute to the child from the overall amount claimed, part of which was determined not to have been incurred for the children.
[100] The fact that Mr. Mamo referenced case law dealing with contractual interpretation in a non-family context is irrelevant. He clearly delineates in his reasons that he was guided by the principles of contract interpretation in the context of family law, as applied to the relevant contract (embodied for the purposes of this issue in the minutes of settlement and the surviving portions of the separation agreement), and his analysis and outcome reflect this approach. The entire procedure adopted, of a summary arbitration with detailed written materials combined with an opportunity for oral submissions was consistent with the primary objective of the Family Law Rules to deal with cases justly, which the arbitrator did when he dealt with the issue of the children’s expenses.
[101] The arbitrator made no error of law or principle, nor any palpable and overriding error, in his determination of which expenses claimed by Randi (i) fell within the enumerated categories of s. 7 of the minutes of settlement, and (ii) had been paid by Randi for the benefit of one or both of the child(ren), which involved assessing the sufficiency of the evidence provided by Randi to show that she had incurred the expense and/or that it related to the children.
Alleged Reviewable Errors Made in the Determination of the Forest Hill Property Expenses
[102] I have determined that the arbitrator did not have the jurisdiction to decide the Forest Hill property dispute and, accordingly, I need not decide the alternative grounds of appeal from the October 13, 2020 Award dealing with this issue, which are predicated on alleged palpable and overriding errors made in the course of the arbitrator’s interpretation of the separation agreement and/or minutes of settlement.
[103] Similar arguments are raised by the appellant on this ground of appeal as were raised in respect of the children’s expenses, insofar as she complains that the arbitrator approached the contract interpretation exercise under the lens of commercial contract interpretation principles that the appellant argues should not have been applied in the family law context.
[104] The appellant contends that, in dealing with the Forest Hill property, the arbitrator ignored the plain reading of the agreements, ignored evidence showing the respondent’s prior dealings with the income and expenses of this property, and placed upon Randi an obligation that was not contemplated by the agreements. The appellant further alleges that the arbitrator acceded to a misinterpretation of the agreements that was proffered by the respondent without evidence and failed to uphold the primary objectives of the Family Law Rules.
[105] In light of the court’s determination that the arbitrator did not have jurisdiction to deal with the Forest Hill property expense accounting, the parties will need to consider whether to adopt some other avenue to resolve this issue and the related issue concerning the withholding of some of the proceeds of sale of this property from the respondent. The parties might: (a) try to settle these issues; (b) enter into a further agreement to submit them to arbitration by Mr. Mamo or another arbitrator; or (c) pursue some other available avenue for resolving these disputes.
[106] Pending their determined procedure and its outcome, it would not be appropriate for this court to pass judgment on the arbitrator’s assessment of the Forest Hill property expense accounting or the appellant’s withholding of any portion of the respondent’s share of any net sale proceeds on account of this claim. No observations or comments will be offered that might impact any future determination of these issues.
Final Disposition and Costs
[107] For the reasons outlined above, I am granting the appeal as it relates to the Forest Hill property expense accounting (as determined by the October 13, 2020 Award, which is declared to be a nullity) and dismissing the balance of the appeal as it relates to the children’s expense (as determined by the October 1, 2020 Award, which is upheld).
[108] At the conclusion of oral argument on this appeal, both sides asked that the costs of the appeal be addressed after the outcome was known. There has been divided success on the appeal, which can be a relevant consideration when dealing with costs (see r. 24(6)). However, even though the appellant was successful on the Forest Hill property expense accounting issue, her conduct in having orally agreed to this issue being arbitrated and backtracking on that agreement after learning of the unfavourable outcome to her, does not create a favourable impression upon the court.
[109] While the appellant has benefited, after the fact, from the court’s determination that the agreement to arbitrate the Forest Hill property expense accounting needed to be in writing to confer jurisdiction upon the arbitrator to decide it (having regard to, among other things, the manner in which the parties had conferred jurisdiction upon the arbitrator to resolve certain specified disputes in the existing written agreement to arbitrate that required all amendments to be in writing), the court is not impressed by her conduct on this issue or by her attempts to challenge the entirety of the arbitrator’s originating jurisdiction. If the parties are not able to settle the issue of costs and the court is asked to decide costs, the parties are directed to address this issue of the appellant’s conduct (r. 24(4) and (8) of the Family Law Rules), among the other relevant r. 24 considerations.
[110] I encourage the parties to try to reach an agreement regarding costs now that the outcome of the motion is known. I understand that the costs of the arbitration proceedings have also not yet been decided; the time would be ripe now for the parties to try to reach an agreement on all of the costs flowing from this arbitration and appeal. If an agreement is reached regarding the costs of this appeal, the parties are asked to advise the court of such by no later than January 21, 2022 by email to my judicial assistant: linda.bunoza@ontario.ca.
[111] If they are not able to reach an agreement on costs, then they may each deliver a written cost submission, not to exceed three pages double spaced, with their respective Costs Outlines and any relevant settlement proposals attached, on or before January 28, 2022. They may each deliver a responding cost submission of no more than 1.5 pages double spaced on or before February 4, 2022. Any such cost submissions so delivered shall be filed with the court in the normal course, uploaded onto CaseLines, and emailed to my judicial assistant. If no submissions have been received by February 4, 2022 (and the parties have not sought and been granted an extension in the time for delivery of same prior to that date), then the issue of costs will be deemed to have been settled.
Kimmel J. Date: January 7, 2022
Footnotes
[^1]: The parties have somewhat differing accounts of the jurisdictional challenges that may have been alluded to by the appellant in the lead-up to the arbitration, which the arbitrator invited her to bring forward for him to rule upon, but which she did not pursue. However, whatever may have transpired, there is no suggestion that the appellant ever indicated that she was challenging the arbitrator’s originating jurisdiction to deal with any dispute. The concerns raised were in connection to whether he had jurisdiction to deal with certain issues, such as the Forest Hill property expense accounting.
[^2]: In an earlier decision of this court relied upon by the appellant for a different purpose, and that did not deal with the jurisdiction of the arbitrator directly, this court recognized that a signed parenting plan that contained a dispute resolution clause could be an enforceable agreement for binding arbitration, even if it did not meet the requirements for an enforceable mediation/arbitration agreement under the Regulation. See Starkman v. Starkman, 2011 CarswellOnt 1333 (S.C.), at paras. 9 and 10.
[^3]: The respondent provided no authority to support the suggestion made during oral argument that I could find that the requirements under the Regulation had been effectively complied with, or that I could imply the necessary terms into the agreement to arbitrate since they had been de facto adhered to by virtue of the manner in which the arbitration and appeal had been conducted.