COURT FILE NO: FS-20-00020662-0001 DATE: 2024-08-30

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

F.W. Applicant – and – D.B. Respondent

Counsel: Ilana Zylberman Dembo / Sarah Strathopolous, for the Applicant Elliot Birnboim / Hailey E. Corrigan, for the Respondent

HEARD: March 7, April 2, 5, and May 2, 2024

RHINELANDER, J.

REASONS FOR DECISION

[1] There are twenty-five Unified Family Courts in Ontario, which does not include Toronto. Unified Family Courts are needed in every jurisdiction in Ontario. Sooner than later. Individuals who require the assistance of the family courts and do not reside in one of those jurisdictions, are subject to a two-tiered system. It creates a myriad of problems and leaves family litigants trying to navigate their way through a system at a time when some are most vulnerable and require the assistance of the court. Family litigants are left struggling to find the most efficient and expedient way to obtain the assistance they need, often in time-sensitive situations.

Background

[2] The parties married August 10, 1996, and were divorced May 28, 2021. A comprehensive Separation Agreement (Agreement) was signed December 8, 2020, after four years of negotiation and litigation.

[3] There are three children of the marriage, C., J., and S., ages 24, 22, and 20, respectively. At the time of this motion, all three children were enrolled in university.

[4] Pursuant to the Agreement, the Respondent was responsible to pay for all the children’s university expenses. A RESP was to be used first to fund the children’s university expenses and any shortfall, thereafter, is the Respondent’s sole responsibility. He is required to pay 100% of the post-secondary education (undergraduate and postgraduate) fees and related expenses, including but not limited to residence, meal plans, books, tuition, reasonable school supplies, travel to/from school, etc.) and medical and dental expenses.

[5] On January 3, 2023, the Respondent texted the Applicant and informed her he would no longer be responsible for the children’s post-secondary expenses. He sent individual texts to the children later that month informing them of his decision.

[6] The Applicant filed an Application with the Superior Court of Justice seeking summary judgment to enforce the condition of the Agreement for the Respondent to continue to pay for the children’s university and related expenses and to reimburse her for monies she has paid towards these expenses.

[7] The Respondent did not file an Answer but brought a motion to stay the summary judgment application and remit the matter to arbitration. The Respondent requested an order that the arbitrator be one of three listed in the Agreement, specifically William C. McDowell.

[8] The Applicant filed her Reply and served a cross-motion seeking summary judgment on the enforcement of the Agreement or in the alternative, that a Family Law Arbitrator be appointed.

[9] The Respondent filed a motion to strike paragraphs from the Applicant’s affidavit. This motion derailed the November 14, 2023, date scheduled for the above motions and was used for the motion to strike. The Respondent’s motion was dismissed, and costs ordered payable to the Applicant of $9,000.

[10] The Applicant scheduled a motion for summary judgment for March 7, 2024. The materials for this motion were served on the Respondent on February 22, 2024. The Respondent filed an amended notice of motion on February 26, 2024, seeking an adjournment of the Applicant’s motion for summary judgment pending the determination of the appointment of William C. McDowell as Arbitrator, an order for the appointment of William C. McDowell as Arbitrator, a stay of the summary judgment, and costs.

[11] The parties were advised in advance to be prepared to argue all motions including the adjournment. On March 7, 2024, the parties attended before me and the Respondent raised for the first time, the issue of whether the Superior Court of Justice had jurisdiction to hear these motions.

[12] The parties made preliminary arguments on the issue of jurisdiction and were provided an opportunity to make further arguments on this issue in both written and oral argument.

[13] On May 2, 2024, I provided the parties with my decision on the motions, cross-motions, and summary judgement with written reasons to follow. The following are my findings and reasons.

• This Court had the appropriate jurisdiction to hear the Applicant’s application and motion for enforcement of the Separation Agreement.
• The Respondent’s request for an adjournment of the Applicant’s motion for summary judgement was dismissed.
• The Respondent’s request to stay the motion for summary judgment pending the parties’ attendance for arbitration was granted.
• The Respondent’s motion to appoint William C. McDowell as Arbitrator in the family law dispute between the parties was dismissed.
• The Applicant’s alternate relief to appoint Cheryl Goldhart as the Arbitrator was granted.

Jurisdiction

[14] At the outset of hearing this motion, which the Applicant had made efforts to have scheduled since June 2023, the Respondent, for the first time, raised the issue of whether this Court had jurisdiction to hear the motion. The Respondent argued this court has no jurisdiction to hear the matter, and the only lawful forum for this motion in Toronto is the Ontario Court of Justice, pursuant to section 35 of the Family Law Act (FLA).

[15] The Respondent advised the issue of jurisdiction had only occurred to him that morning, hence the late notice to the Applicant and court. The parties made preliminary submissions on that date and were provided additional time to prepare more fulsome written and oral submissions which were heard April 2, 2024.

[16] As Vella, J. stated in Nodder v. Wasserman, 2023 ONSC 6982, at para. 15, “this issue arises, in part, because of the anomaly left by the Legislature by having designated certain regions in Ontario within the jurisdiction of the Family Court of the Superior Court of Justice, and other regions, including Toronto, to maintain the OCJ, and Superior Court of Justice with respective jurisdictions to hear family matters under the FLA and other family law legislation (such as the Children’s Law Reform Act).” This issue of jurisdiction would not have been necessary if there were Unified Family Courts in all jurisdictions in Ontario.

Respondent’s Position

[17] The Respondent maintained the Superior Court of Justice has no jurisdiction to hear the Application based on the Applicant’s pleadings to file the domestic contract pursuant to section 35 of the FLA and have it made an Order. Outside of section 35, there is no legislation that permits a party to obtain an order without proving the basis or elements of the cause of action.

[18] In the alternative, if it is the Applicant’s intention to commence a fresh application for child support pursuant to sections 15 and 15.1 of the Divorce Act, she was entitled to do so, however, she is required to establish the factors set out in the Divorce Act have been met. The Respondent argued this new application is not capable of summary judgment.

Applicant’s Position

[19] It is not disputed that the Applicant could have filed the Agreement with the Ontario Court of Justice or could have sought corollary relief pursuant to the Divorce Act by initiating a fresh application. However, the Applicant chose not to. The Applicant does not seek to vary or change the terms of the Agreement, only to enforce specific terms regarding section 7 expenses.

[20] The Applicant argues the Superior Court of Justice has inherent jurisdiction over criminal, civil, and family proceedings arising from common law traditions. The Court also has statutory jurisdiction over matters as set out in federal and provincial legislation. Its inherent jurisdiction provides authority to hear matters that are not specifically legislated to be heard by another court, tribunal, or board. The Applicant maintains section 35 of the FLA “does not oust the jurisdiction of the Superior Court of Justice to address issues over which it otherwise has jurisdiction”.

[21] The Applicant’s position is the Superior Court of Justice has jurisdiction to hear the motion for enforcement and summary judgment pursuant to Rule 1(7) of the FLA which references the Courts of Justice Act, or the Rules of Civil Procedure when the FLA is silent or does not address a matter adequately.

[22] The Applicant maintains she is entitled to choose which court to commence her Application and she chose the Superior Court of Justice to avoid pursuing litigation in both courts. The Applicant seeks to enforce provisions of the Agreement and obtain summary judgment in relation to the alleged breaches of the Agreement. If the Court is not prepared to enforce the terms as requested, the Applicant seeks an Order appointing a family law arbitrator. Such appointment, according to the Agreement must be done by a “Judge of the Superior Court of Justice sitting in the Family Division by Motion”.

[23] The Applicant expressed further concerns that if the Agreement was filed with the Ontario Court of Justice pursuant to section 35 of the FLA, the Family Responsibility Office may not be able to enforce the terms of the Agreement. The Agreement does not specify a specific sum or amount payable but a percentage, which could result in the Applicant pursuing private enforcement.

Analysis (Jurisdiction)

[24] Section 35 of the FLA states,

(1) A person who is a party to a domestic contract may file the contract with the clerk of the Ontario Court of Justice or of the Family Court of the Superior Court of Justice together with the person’s affidavit stating that the contract is in effect and has not been set aside or varied by a court. [Emphasis Added]

(2) A provision for support or maintenance contained in a contract that is filed in this manner,

(a) May be enforced;

(b) May be varied under section 37;

(c) Except in the case of a provision for the support of a child, may be increased under section 38; and

(d) In the case of a provision for the support of a child, may be recalculated under section 39.1.

As if it were an order of the court where it is filed.

[25] Section 35 of the FLA provides parties with a summary procedure to file a domestic contract with the Ontario Court of Justice or the Family Court of the Superior Court of Justice and to seek enforcement or variation of a term of the agreement as if it were an order of the court. This section does not include the Superior Court of Justice.

[26] The section was created to facilitate the recovery of support and maintenance payments, to make things more efficient and expedient. When the domestic contract or agreement is filed it provides notice to the other party that one intends to enforce or change the agreement. Once an agreement is filed in a particular court, the order is not subject to review, revision, or amendment by the other court. Jasen v. Karassik, 2009 ONCA 245, Francisco v. Francisco, 2017 ONCJ 323, Ridley v. DeRose, 2015 ONSC 5635.

[27] The Applicant in her initial pleadings sought an order pursuant to sections 35(1) and 35(2) of the FLA to file the Agreement with this court for enforcement which is not permissible pursuant to the legislation. The Applicant is not seeking that relief on this motion and counsel advised she is no longer pursuing that relief. What the Applicant is seeking is enforcement of terms of the Agreement and an order incorporating specific terms of the Agreement related to the Respondent’s obligation to pay child support for the parties’ three children, and an order quantifying the amount of child support owed commencing January 1, 2023.

[28] Jurisdiction over family proceedings in Ontario is divided between the Superior Court of Justice and the Ontario Court of Justice in all but twenty-five court locations. Pursuant to provincial legislation, the Ontario Court of Justice has sole jurisdiction over child protection and adoption cases. Federal legislation provides the Superior Court of Justice with sole jurisdiction to determine matters pursuant to the Divorce Act and the division of property. Both courts have overlapping jurisdiction to determine issues regarding parenting, decision-making responsibility, child support, and/or spousal support, which provides an applicant the choice of which court they wish to commence proceedings in.

[29] Unfortunately, this leads to problems in many cases for several reasons. An applicant may start an application in the Superior Court of Justice to obtain a divorce and determine corollary issues including parenting. Should an issue arise that involves child protection, the matters in the Superior Court of Justice are immediately paused pending the issues being determined in the Ontario Court of Justice. Likewise, an applicant may commence proceedings in the Ontario Court of Justice to address parenting and subsequently a party may initiate proceedings in the Superior Court of Justice to obtain a divorce and/or corollary relief if property is involved. These issues could all be avoided if Unified Family Courts were throughout Ontario. In jurisdictions where Unified Family Courts have been established, all family proceedings are dealt with in the one court, which has jurisdiction to hear all matters.

[30] The law is clear, the Superior Court of Justice does not have the jurisdiction to vary or change an order which originated in the Ontario Court of Justice, even in cases where parties consent to the Court issuing an Order, this does not convey jurisdiction to the court. Price, J. stated in O’Higgins v. O’Higgins, 2015 ONSC 3825 at para. 44, “The courts to which the Family Law Act assigns jurisdiction are not interchangeable. The Superior Court of Justice and the Ontario Court of Justice do not have jurisdiction to vary each other’s orders.” If there was a Unified Family Court in Toronto, the issue of jurisdiction in this matter would be moot.

[31] As Gillese, J.A., stated in Linett v. Linett, 2006 CarswellOnt 2424, “The Family Law Rules have applied to family law cases in the Toronto area, including cases involving the enforcement of separation agreements, since July 1, 2004.” Rule 1(2)(b) applies to “all family law cases in the Family Court of the Superior Court of Justice, in the Superior Court of Justice and in the Ontario Court of Justice, … (b) for the interpretation, enforcement or variation of a marriage contract, cohabitation agreement, separation agreement, paternity agreement, family arbitration agreement or family arbitration award.” [emphasis added].

[32] In Linett v. Linett, the parties were married August 12, 1973, and separated in December of 1997. After six years of litigation, a comprehensive Separation Agreement involving corporate, trust, and real estate transactions, was signed on November 21, 2003, putting an end to the litigation. A divorce was issued on May 2, 2004. The Separation Agreement included a closing date for transfers of properties and distributions of June 30, 2004. That date came and went. In March of 2005, the Respondent brought a motion for enforcement to compel the Applicant to comply with terms of the Agreement. There was no issue raised as to the validity of the Agreement.

[33] The motion judge, Harvison Young, J., granted the Respondent’s motion, as the Applicant “had not cooperated in the closings pursuant to the Agreement.” (para 6). The Applicant/Appellant appealed on the basis the enforcement of a separation agreement could only be done by way of application, not motion. The parties did not dispute the Superior Court of Justice had jurisdiction to enforce the Agreement, but the Appellant argued the process must be initiated by application as opposed to a motion. In that case, the Court found there was an existing action and therefore it would be inefficient to require the Respondent to start a new proceeding for enforcement of the Agreement. It did not preclude a party from seeking to enforce a separation agreement in the Superior Court of Justice by way of application.

[34] The Respondent argued Linett is distinguishable from this case because it was a settlement of existing litigation and the reliance on Rule 49.09 was to enforce “accepted offers to settle reached to resolve existing litigation where a party is in breach. In this case, the separation agreement does not resolve litigation, it is the basis of the Applicant commencing it.” I disagree with the Respondent’s categorization of the Agreement in this case. The Agreement was reached and signed on December 8, 2020, to resolve the four years of litigation between the Applicant and the Respondent, the fact that the Respondent has allegedly arbitrarily decided not to comply with the Agreement is the impetus for the Applicant seeking to enforce it.

[35] The Respondent relied upon jurisprudence where the Superior Court held it lacked jurisdiction to enforce terms of a separation agreement. However, those cases are distinguishable, insofar as, the separation agreement had previously been filed in the Ontario Court of Justice (Nodder v. Wasserman); the applicant commenced an original application in the Superior Court of Justice (Jones v. Iqbal, 2022 ONSC 6566); parties sought to vary spousal support terms entered after the parties were divorced (Verhey v. Verhey, 2017 ONSC 837).

[36] The Applicant relied upon Houle v. Trottier, 2012 ONSC 6661, where the Divisional Court remitted a matter to the Superior Court of Justice for a determination on the merits regarding an application for corollary relief made after the dissolution of the marriage. The parties had entered a separation agreement that included provisions for child support payable to the mother. An application to vary the order was heard in the Ontario Court of Justice and granted, thereby reducing the father’s child support obligations. The parties were divorced prior to the motion to vary the child support. The divorce had proceeded on an uncontested basis with no claims for corollary relief. The Court acknowledged there was “no limitation in the Divorce Act, which prevents or restricts former spouses from making an application for corollary relief on the basis that there is a prior order under applicable provincial legislation”.

[37] The Court recognized the Appellant in that case had the option to seek a variation of the child support order under s. 37 of the FLA, or she had the alternative option of initiating a corollary relief proceeding under s.15.1 of the Divorce Act. The latter could only be brought in the Superior Court of Justice. In paragraph 13, the Court followed Pantry v. Pantry, [1986] O.J. No. 2347 at para 7, wherein the court held an order under the Divorce Act does not vary the order under the provincial legislation but rather it supplants and supersedes the order under the provincial statute.

[38] It is unclear if the appellate decisions in Linett v. Linett and Houle v. Trottier (infra) were brought to the attention of Price, J. when he determined O’Higgins v. O’Higgins (supra) and Mignella v. Federico, 2016 ONSC 7606, as he did not reference either appellate decision. However, the factual underpinnings in those cases are different than the case at bar.

[39] Although the Applicant initially sought to have the Agreement filed with the Court and obtain an Order, this request was withdrawn. The Applicant in this case is not seeking a variation of the terms of the Agreement, but rather is seeking to have specific terms of the Agreement enforced. I am bound by the Ontario Court of Appeal pursuant to Linett v. Linett and find the Superior Court of Justice has jurisdiction to hear the Applicant’s motion.

[40] The primary objectives of the FLR are set out in Rule 2(2) to enable courts to deal justly with cases, which include the factors set out in subsection 2(3) that ensure a procedure that is fair to all parties. I point this out because if I am wrong and the appropriate court to address the enforcement and summary judgment is the Ontario Court of Justice, a situation is created where the Applicant would be forced to pursue litigation in two separate venues arising from the same Agreement. This would be contrary to the objectives and purpose of the FLR.

[41] In Ridley v. DeRose, 2015 ONSC 5635, the parties sought to vary an Order of the Ontario Court of Justice. King, J. held she had no jurisdiction to vary the Order of the Ontario Court of Justice and refused to consider other issues that arose from the separation agreement that fell within both courts jurisdiction and remitted all matters to the Ontario Court of Justice for a determination. That is not the case here.

[42] In this case, the Applicant seeks to enforce terms of the Agreement which fall within the jurisdiction of both courts. However, if unsuccessful in her pursuit of enforcement of the term and/or summary judgement, she seeks the appointment of a Family Law Arbitrator which can only be appointed by a Judge of the Superior Court of Justice of Ontario per the Agreement. This would result in a bifurcated hearing requiring the Ontario Court of Justice to remit the matter to the Superior Court of Justice for purposes of appointing an arbitrator.

[43] Lastly, if the Applicant had filed the Agreement with the Ontario Court of Justice pursuant to section 35, and a variation or change was sought regarding the Child Support section, that court may not have had jurisdiction to fully determine the issue. Clause 5.8 under the Child Support provisions set out that the provisions under this section took into consideration transfers of property, releases of spousal support, division of household contents and personal property between the parties. Therefore, the child support terms in the Agreement were not isolated but agreed upon through releases of spousal support and division of property, the latter which fall under the jurisdiction of the Superior Court of Justice.

Adjournment

[44] The Respondent filed an amended notice of motion requesting the Applicant’s motion for summary judgement be adjourned pending his motion for the appointment of an Arbitrator. It is the Respondent’s position that his motion should proceed first and if not successful, the applicant’s motion for summary judgment would be heard subsequent. On October 6, 2023, Brownstone, J. set dates for the proposed motions. The Respondent’s motion was scheduled for November 14, 2023, and the Applicant’s motion was set for March 7, 2024. The Respondent brought a motion to strike paragraphs from the Applicant’s affidavit which was heard on the November date. No further date was set for his motion to appoint an arbitrator.

[45] Correspondence was exchanged between November 24, 2023, and February of 2024 regarding the rescheduling of the Respondent’s motion without success from both sides. On January 19, 2024, the Respondent sent a Request for Information. No further dates were canvassed to schedule his motion.

[46] The Respondent argued the Applicant failed to cooperate or respond for the purposes of rescheduling his motion. Therefore, he proposed the March 7 date be used for purposes of arguing his motion, and the Applicant’s motion for summary judgement be adjourned and rescheduled.

[47] The Applicant is opposed to the request to adjourn her motion for summary judgment. It is her position the Respondent has failed to respond to requests to schedule the motions in any meaningful way and has engaged in delay tactics throughout this process including not responding promptly to emails and failing to provide alternate names to conduct the arbitration. His actions and delay led to her commencing these proceedings.

Determination

[48] The parties were advised in advance to be prepared to argue all motions on their merits. Counsel commenced with argument regarding jurisdiction and proceeded to make submissions on the substantive motions.

[49] Due to the protracted nature of these proceedings, all motions were heard, and the adjournment application was dismissed.

Should this court stay the summary judgment motion and enforce the arbitration term of the Agreement?

[50] The parties signed a thirty-two-page Separation Agreement on December 8, 2020, and agreed to be bound by the Agreement which settled all issues between them on a final basis. The Agreement acknowledged it is a domestic contract pursuant to section 54 of the FLA. The Agreement addressed financial arrangements between the parties, in addition to parenting, child support, freedom from each other, confidentiality clause, and a dispute resolution process.

[51] Section 5 of the Agreement addresses child support and section 7 expenses as follows:

5.1 D.B. shall pay for all of the children’s private school and university expenses and any and all other Section 7 expenses. It is agreed that the joint RESP account, namely ******** **** Account No. *******-*, will be used to fund the children’s university expenses and after any shortfall, D.B. will be solely responsible for the balance of the Section 7 expenses.

5.2 F.W. will pay for all regular day to day expenses for the children.

5.3 D.B. will pay 100% of the following special or extraordinary expenses directly to the third parties:

a) Private school fees and related expenses, including service trips, for all 3 children;

b) Post-secondary education (undergraduate and postgraduate) fees and related expense, including but not limited to residence, meal plans, books, tuition, reasonable school supplies, travel to/from school, etc.; and

c) Medical and dental expenses.

5.4 D.B. will reimburse F.W. for any of the above special or extraordinary expenses she incurs within seven (7) days of F.W. delivering to him proof of the expense. Concurrent with the signing of this Agreement, D.B. will reimburse F.W. for the November 2020 payment she made towards S.’s Neuchatel fees and trip expenses in the amount of $25,551. While D.B. is to reimburse F.W. for 100% of the expense, D.B. may deduct any income tax benefit or other subsidy received by F.W. for that special or extraordinary expense.

5.5 D.B. will only contribute to a child’s additional special or extraordinary expenses if F.W. obtains his consent to the expenses in advance, in writing. D.B. will not unreasonably withhold consent.

5.6 F.W. may claim the Canada Child Benefit (including the Child Disability Benefit if applicable), the refundable children’s GST/HST credits, the Ontario Child Benefit, and the eligible dependant credit for the children. These benefits/credits will not affect the Table amount of child support in this Agreement.

5.7 If the income tax credits for a child’s post-secondary educational institution are not fully used by the child, F.W. or D.B. will claim the unused portion of the income tax credits.

5.8 In consideration of the terms of this Agreement, including but not limited to the transfers of property referred to herein, the releases of spousal support, the division of household contents and personal property between the parties, the releases by each of the parties against each other's respective property and the other covenants and promises contained herein, F.W. and D.B. release her or his rights to receive child support from the other forever. Each party waives any past, present or future entitlement to claim any form of child support from the other.

5.9 The parties have carefully considered the future needs and best interests of the children in the negotiation of the terms of this Agreement and have negotiated the terms hereof in good faith and each party has compromised their strict legal positions. The parties intend and agree that the releases of child support contained in this section shall be a complete defence and absolute bar to any claim by either party against the other for child support.

5.10 The parties hereby acknowledge and agree that the provisions contained herein constitute "special provisions" which directly or indirectly benefit the children and have been made for the benefit of the children within the meaning and purposes of subsection 15.1(5) of the Divorce Act, 1985. The parties further acknowledge and agree that the application of the Child Support Guidelines would result in an amount of child support that is inequitable in the circumstances. The parties' arrangements concerning child support are reasonable and meet the objectives of the Child Support Guidelines, in light of the terms of this Agreement. The parties acknowledge and agree that the provisions contained herein are "reasonable arrangements" for the support of the children within the meaning of subsections 15.1(7) and (8) of the Divorce Act, 1985 taking into account not only the terms of this Agreement but the parties' respective financial circumstances.

5.11 The parties acknowledge and agree that nothing in this Agreement, including but not limited to the release of child support, will in any way bar, limit or effect the children's rights to make any claims against the estate of either F.W. or D.B. in the event of her or his death. Without limiting the generality of the foregoing, nothing in this Agreement will bar any action or proceeding brought by the children as against the estate of F.W. or the estate of D.B.

[52] The Dispute Resolution provisions are set out at section 17 of the Agreement and state:

17.1 If F.W. and D.B. disagree about the interpretation of a term of this Agreement, an issue related to child support pursuant to this Agreement or there is an allegation of a breach of paragraph 3.1, 65.1 or 16.2 of this Agreement they will first try to resolve the dispute through negotiation, either between themselves or with their respective counsel. (Note: Typographical error 65.1 should read 16.1)

17.2 If F.W. and D.B. cannot resolve a dispute referred to in paragraph 17.1 of this Agreement within 30 days of a party giving the other notice of a dispute, they will resolve the issue by arbitration under the provisions of the Arbitration Act, which arbitration will constitute a secondary arbitration under the Arbitration Act and the Family Law Statute Law Amendment Act. The arbitration will be binding on the parties and the parties waive Section 35 of the Arbitration Act.

17.3 The parties wish to have Will McDowell, Cliff Hendler or Howard Winkler to act as mediator/arbitrator, with the mediation/arbitration process being engaged within 30 days of a party giving the other notice of a dispute. In the event that Will McDowell, Cliff Hendler or Howard Winkler is unwilling or unable to act as mediator/arbitrator, the parties will attempt to agree on an alternative and if they cannot agree, one shall be appointed by a Judge of the Superior Court of Justice of Ontario sitting in Family Division by Motion by either party, after 30 days. Within 90 days of executing this Separation Agreement, the parties shall sign a mediation/arbitration agreement appointing Will McDowell, Cliff Hendler or Howard Winkler as the mediator/arbitrator in this matter.

[53] The balance of section 17 addresses the costs of arbitration and any disputes arising from breaches of paragraphs 3.1, 16.1 or 16.2 of the Agreement.

[54] The Agreement required the parties to sign a mediation/arbitration agreement within 90 days appointing one of the three named arbitrators, and if they were unwilling or unable to act, the parties would attempt to agree on an alternative or one may be appointed by a Judge of the Superior Court of Justice sitting on the Family Team. The parties did not sign the mediation/arbitration agreement as set out in paragraph 17.3.

[55] The Respondent informed the Applicant and the children in January 2023, that he would no longer be responsible for the payment of any of the children’s expenses including post-secondary tuition, rent, meals, books, health, medical, dental, or otherwise.

[56] The Applicant maintains the Respondent is in breach of the Agreement. All three children are enrolled in post-secondary studies and there are no conditions in the Agreement that permit the Respondent to terminate payments on his own initiative.

[57] The parties were unable to resolve the issue within thirty days. Thereafter, the Applicant’s counsel contacted the three named mediators/arbitrators identified in the Agreement. Two of the three declined to act as they do not conduct family law arbitrations. Mr. McDowell was prepared to act but confirmed he did not have the requisite training to conduct a family law arbitration and was not able to commit the time necessary to complete the training. In late March/early April of 2023, he suggested the parties find another arbitrator.

[58] Correspondence was exchanged between the parties regarding the appointment of an alternate arbitrator. With no response from the Respondent regarding proposed family law arbitrators, the Applicant commenced this application.

Respondent’s Position

[59] The Respondent maintains this matter “must” be sent to arbitration prior to any court involvement. He requests the Applicant’s motion for summary judgment be stayed pending arbitration.

[60] The Respondent relied upon Puigbonet-Crawford v. Crawford, [2006] 38881, for the proposition that unless a case comes within one of the exceptions set out in section 7(2) of the Arbitration Act, there is no discretion for a court to refuse a stay.

[61] The Respondent asserts that not only should this matter have proceeded directly to arbitration, but this motion also, as to whether it should be arbitrated should have been determined by the Arbitrator pursuant to the “competence-competence” principle. He argued that the arbitrator should determine whether he/she has jurisdiction to address the matter.

[62] The Respondent argued in addition to the Dispute Resolution provisions, the Agreement contained a confidentiality clause. The purpose of the Dispute Resolution section was to avoid court litigation and ensure privacy.

[63] Both the FLA and the Divorce Act encourage Alternate Dispute Resolution mechanisms to address issues that arise suggesting it is quicker and less expensive.

[64] The Respondent was clear in his argument that the only possible exception the Court might find for refusing a stay was delay. He maintained he is not responsible for any delay and the protracted nature of these proceedings is the litigious actions of the Applicant. This matter could have gone to arbitration last year had the Applicant not opposed Mr. McDowell’s appointment. He points to his efforts to reschedule his motion seeking the appointment of an arbitrator commencing November 24, 2023, ten days after his motion to strike paragraphs of the Applicant’s affidavit was heard and dismissed. Emails from the Applicant’s counsel indicate they were in a trial and unable to respond, subsequently had vacation, and were unavailable between February to end of April to reschedule the motion.

[65] The Respondent points to the conflicting positions of the parties regarding the evidence of the children and their post-secondary studies. A court cannot determine based on a written record credibility or the reliability of the information before the court to grant summary judgment. Further, there are several sub issues that suggest granting a partial summary judgment would be problematic given the inter-connected issues regarding whether the children remain entitled to support and the Respondent’s claim to enforce the confidentiality provisions of the Agreement.

[66] The Respondent asserts he is not obligated “to pay any let alone certain expenses” based on the premise i) the children are adults; ii) C. and J. are not attending full-time studies; iii) the children have withdrawn from parental control; iv) nature of expenses and whether true s.7 expenses; v) Applicant failed to obtain Respondent’s consent in advance of the expenditures; vi) the Applicant did not credit the Respondent with the tax relief she obtained for payments he made prior to January 2023, and therefore he is in a credit; vii) children are working constituting a change in circumstances; viii) Applicant has breached the confidentiality and non-disparagement clauses resulting in a breakdown with his relationship with the children; and ix) this breach is related to the remedies contemplated by the Agreement.

Applicant’s Position

[67] The Applicant argues the Respondent is in breach of the child support terms of the Agreement.

[68] The Applicant requests the Court exercise its discretion pursuant to s.7(2) of the Arbitration Act and refuse to grant a stay of the proceedings and relies on three of the five enumerated exceptions for when a stay should not be granted. The Applicant argued i) the enforcement of the child support provisions of the Agreement and the Respondent’s alleged breach of those provisions are an appropriate matter to be determined by default or summary judgment; ii) the Dispute Resolution section of the Agreement is not a valid arbitration agreement; and iii) the Respondent has unduly delayed the proceedings in advancing his motion for a stay. Under these circumstances and relying on the above three criteria, it would be unfair and impractical to refer this matter to arbitration.

[69] Pursuant to the Agreement, the Respondent is responsible for 100% of the children’s special and/or extraordinary expenses including their post-secondary school expenses including but not limited to residence, meal plans, books, tuition, reasonable school supplies, travel to/from school, etc. The Applicant maintains this term was included in exchange for the Applicant waiving both child support pursuant to the Child Support Guidelines and spousal support.

[70] The Applicant contacted counsel within days of receiving the Respondent’s text informing her that he would no longer be responsible for expenses incurred by the children effective immediately. On January 6, 2023, through counsel, correspondence was sent requesting the Respondent comply with his child support obligations. He was put on notice if he failed to reimburse the Applicant for expenses she had paid to date, she would initiate court proceedings. Throughout the following months the Applicant made efforts to resolve the matter directly with the Respondent through counsel without success.

i) Summary Judgment

[71] The Applicant relies upon MDG Kingston Inc. v. MDG Computers Canada Inc. which addressed the exception where a stay should not be granted “when one party defaults and there is therefore no need to enlist an arbitrator to make any findings. Another is where the case is properly one for summary judgment, ie. there are no genuine issues for trial, and therefore, as with a default situation, there are no issues that require the assistance of an arbitrator.” The issue to be determined, according to the Applicant, is completely straightforward. The Respondent is required to pay for the children’s post-secondary and related expenses while in attendance. This includes rent, groceries, hydro, flights home for visits, tuition, books, residence (if not rent), meal plans (if not groceries) with no qualifications or limitations. The Applicant summarized the children’s attendance at post-secondary institutions and included a chart of expenses she has covered since January 1, 2023.

[72] C. was in his third year of a Bachelor of Computing in Computer Science at Guelph University having transferred from Queen’s University where he studied Engineering. The Applicant advised that C. struggles with anxiety and depression and temporarily withdrew from his undergraduate studies in March 2022 to address his mental health. He has subsequently returned to his studies.

[73] J. was in her third year of undergraduate studies at Dalhousie University, Halifax, Nova Scotia. She initially attended Queen’s University and studied Biochemistry. She withdrew from Queen’s in December 2022, and moved to Halifax in January 2023, in anticipation of continuing her studies at Dalhousie in September 2023.

[74] S. commenced her post-secondary studies in September 2021 at Dalhousie University, Halifax, Nova Scotia. She is enrolled in a Bachelor of Arts (Honours) studying Social Anthropology and Gender & Women’s Studies. She has just completed her third year of studies.

[75] The Applicant stated in her affidavit that all three children reside in rental accommodations during the school year and live with her during the summer and holidays.

[76] Pursuant to the Agreement, the Respondent is responsible for 100% of the children’s special and/or extraordinary expenses including their post-secondary school expenses. The Applicant maintains this term was included in exchange for the Applicant waiving both child support pursuant to the Child Support Guidelines and spousal support. The Applicant asserts the Agreement includes a waiver of Table child support and spousal support based on the “interdependent and inextricably intertwined terms” of the Agreement.

[77] It is her position the Agreement does not include a clause about the termination of the Respondent’s responsibilities to cover all special and/or extraordinary expenses. The Respondent is required to pay 100% of the children’s post-secondary education expenses including undergraduate and post-graduate degrees. This term is fixed and non-variable.

[78] All three children are still completing their undergraduate degrees and may go on to pursue graduate studies. The Agreement is very clear, per the Applicant, the Respondent is required to continue to pay. The Respondent arbitrarily decided he would no longer pay these expenses and therefore he is in default of his child support obligations per the Agreement as he has not contributed to the children’s special and/or extraordinary expenses since January 2023.

[79] The Applicant argues there is no genuine issue requiring a trial on all or part of any claim made, nor is there any defence. The Applicant has provided an affidavit setting out specific facts. Therefore, if the only issue is a question of law, the Court may make a final order. The “best evidence” should be placed before the motion judge just as it would before a trial judge to permit a decision to be made.

[80] The Applicant’s position is the Court has a fulsome record upon which to determine summary judgment of the arrears owing and the breach of the child support provisions as set out in the Agreement.

ii) Invalid Arbitration Agreement

[81] The Applicant requests the Court exercise its jurisdiction to refuse to stay the proceeding because the arbitration agreement is invalid. She argues the Dispute Resolution section of the Agreement does not comply with the formal requirements of the Family Arbitration Regulation and therefore does not constitute a valid arbitration agreement.

[82] The Applicant submits she is not avoiding arbitration and in fact contacted all three parties identified in the Agreement regarding arbitration. Once all three individuals confirmed they would not or were not qualified to arbitrate this matter, the Applicant sought the agreement of the Respondent for the appointment of an alternative. No agreement was reached.

iii) Undue Delay

[83] The Applicant asks the Court to exercise its discretion and refuse to stay the proceedings because the Respondent has unduly delayed his motion seeking to stay the proceedings.

[84] She argued the Respondent delayed invoking the arbitration clause of the agreement, suggesting he is not invested or interested in arbitration but rather seeks to delay the process or gain a tactical advantage. In support of her argument, she relies on the Respondent’s failure to file an Answer. Instead, the Respondent filed a notice of motion almost three months after being served with her application.

[85] The Applicant argues the Respondent brought “an ill-founded motion” to strike portions of her affidavit which disrupted and delayed the schedule set for the parties’ motions. His motion was dismissed and despite repeated correspondence from the Applicant’s counsel to address new timelines for the motions no response was provided.

[86] The Applicant stated the Respondent’s failure to schedule his motion to stay the proceedings in the nine months since she commenced this proceeding and the five months since being served with her responding materials constituted “undue delay”.

Analysis (Stay and Arbitration)

[87] Section 7(1) of the Arbitration Act provides that, if a party to an arbitration agreement commences a proceeding in respect of a matter to be submitted to arbitration under the agreement, the court in which the proceeding is commenced shall, on the motion of another party to the arbitration agreement, stay the proceeding, subject to the exceptions set out in section 7(2).

[88] Section 7(2) of the Arbitration Act gives the court discretion to refuse to stay proceedings in circumstances where 1) a party entered the agreement while under a legal incapacity; 2) the arbitration agreement is invalid; 3) the subject-matter of the dispute is not capable of being the subject of arbitration under Ontario law; 4) the motion was brought with undue delay; or 5) the matter is a proper one for default or summary judgement. These exceptions should only be utilized in cases where remitting the matter to arbitration would be impractical or unfair. MDG Kingston Inc. v MDG Computers Canada Inc., 2008 ONCA 65 at para. 36 – 37.

i) Invalid Agreement

[89] In Magotiaux v. Stanton, 2020 ONSC 4049, McKinnon, J. considered terms of a dispute resolution process set out in the parties’ parenting agreement. She found that the parties’ agreement did not comply with the mandatory provisions in the Family Arbitration Regulation and therefore was not a valid arbitration agreement. The court commented that “parties need to ensure that their agreement complies with the necessary formalities required by statute and regulation. Where the legislator has mandated express terms for family arbitration agreements the court may not imply them.” [Emphasis added]. McKinnon, J. indicated in her reasons that the situation might have been different if the agreement had ensured compliance with the governing Act and Regulation.

[90] Unlike the above decision, the Agreement expressly stated if the issue was to be resolved by arbitration it would be done under the provisions of the Arbitration Act and the Family Law Statute Law Amendment Act. The parties identified three mediators/arbitrators they “wished” to have and made provisions that in the event the proposed mediator/arbitrator “is unwilling or unable to act”, how one would be chosen, including appointment by a Judge of the Superior Court of Justice. The Agreement contains a term that if any term is invalid or unenforceable “it will be treated as severed from the remaining terms” and does not affect the validity or enforceability of any other term. Although the Agreement itself did not specifically set out the sections of the Acts to be complied with it is understood the arbitration agreement itself would comply with the current legislated regime.

[91] It is not disputed the parties failed to sign a mediation/arbitration agreement to appoint one of the three individuals to act as mediator/arbitrator. I do not find that the failure to have signed an agreement within 90 days makes the entirety of the term invalid or unenforceable and that term therefore may be severed from the Agreement as per paragraph 18.3.

[92] Upon a review of the Agreement as a whole, it is understandable why the potential three named persons were proposed as arbitrators given the intricacies of the properties, investments, and other financial issues that were resolved within the Agreement. However, paragraph 16.2 is clear that the parties contemplated circumstances in which none of the proposed arbitrators/mediators would be available and/or able to act in the capacity requested. In which case, any arbitration agreement that may have been signed would not be valid with a different arbitrator and would require a separate and new arbitration agreement.

[93] The Dispute Resolution section of the Agreement reflects the intent of the parties in terms of the process they wanted to follow to resolve any issues that may arise. There is nothing in the Agreement that prevents the parties from signing or entering an arbitration agreement with a family law arbitrator in compliance with the legislation.

[94] I do not find the Dispute Resolution section of the Agreement invalid. The parties did not sign an Arbitration Agreement and even if they had, the Agreement had provisions to account for circumstances where the none of the proposed individuals were able or willing to assist, in which case an alternative arbitrator would need to be selected and therefore a separate arbitration agreement would need to be signed with the proposed arbitrator.

ii) Summary Judgment

[95] The law relating to Rule 16 Motions for Summary Judgment has been transformed in recent times by the Supreme Court of Canada's decision in Hryniak v. Mauldin, 2014 SCC 7 and then more recently with the changes to Rule 16 of the FLR.

[96] On a motion for summary judgment, the Court must first determine if there is a genuine issue requiring a trial based only on the evidence before the Court. If there appears to be a genuine issue requiring a trial, the Court should then determine if the need for a trial can be avoided by using the fact-finding powers under Rules 16(6.1) and 16(6.2).

[97] In Hryniak at para. 49, the Supreme Court of Canada gave the following direction:

There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

[98] When considering a motion for summary judgment, the court must ensure the process is fair to all parties; saves time and expense; deals with the case in ways that are appropriate to its importance and complexity; and gives appropriate resources to the case while considering the need to give resources to other cases. Jassa v. Davidson, 2014 ONCJ 698 at paras.40 and 42.

[99] I disagree with the Applicant’s submissions that the issue is completely straight forward. Each of the three children’s circumstances and path through university has been different and not necessarily continuous. Of all the children, S.’s is the least complex and perhaps the only one whose circumstances could be determinative by summary judgement. S. is the only child who has continuously attended university without interruption or transfers between institutions. However, both parties argued this was not an appropriate case for partial summary judgement.

[100] I have different information regarding C.’s circumstances and his past attendances at post-secondary institutions. The Applicant stated he had attended Queen’s and subsequently transferred to Guelph. While at Guelph he left his program in the spring of 2022 as he struggled with anxiety and/or depression. The Applicant stated he withdrew for one semester. No medical evidence was filed in support of this claim, and I am left to rely solely on the affidavit of the Applicant. It is unclear when he resumed studies. The Applicant’s affidavit would suggest he returned to his studies in the fall of 2022. The transcripts from the school are of little assistance other than listing courses, grades, credits, and the year the course was taken. In the initial materials filed, the transcript from Guelph shows courses taken in the winter of 2021, the fall of 2021, the fall of 2022 (two courses worth .50 each) and no courses in 2023, contrary to the initial affidavits of the Applicant.

[101] Between March 7, 2024, when the motion was commenced and April 2, 2024, when it was scheduled to continue due to the jurisdiction issue, a further affidavit was filed on April 1, 2024, to respond to questions asked on the first date. If the idea is to put your best foot forward on a summary judgment motion a complete record should have been filed prior to March 7, 2024. Even with the additional affidavit questions still arise. Aside from the Applicant’s affidavit to fill in the gaps on C.’s transcript based on hearsay, there is no supporting documentation from the school confirming enrollment and withdrawal dates from courses.

[102] Regarding J.’s circumstances, the court was advised she decided to transfer to Dalhousie and left her studies at Queen’s after first semester in the 2022 – 2023 school year. Rather than return home between studies, she chose to move to Halifax. Although it was her intention to continue her studies, she took an eight-month gap. Rather than find a sub-let for her apartment lease in Kingston, the expectation was for the Respondent to continue paying. Further, rather than return to the Applicant’s home between studies, she moved to Halifax and secured a second apartment with the expectation that someone would cover those costs as well. If I’m to understand the Applicant’s evidence, together with the Agreement, the Applicant is to be responsible for the children’s day to day activities when not in school. Therefore, all household expenses, including accommodations and meals would be the responsibility of the Applicant, not the Respondent, when the children are not in school.

[103] When comparing the different post-secondary institutions transcripts, I am unable to decipher how many credits is a full course load for the different universities, ie. 15 credits per semester or 5 credits per semester. The materials should have included information directly from the schools and the children’s full records. When looking at C.’s transcript it states he has completed a total of 6.00 credits. It is unclear how many are required to graduate or to complete his program. When one looks at J.’s transcript from Dalhousie, it shows the credits she received for courses taken at Queen’s but there is a lack of information regarding course loads and marks.

[104] I appreciate the Applicant’s position is the concerns raised above are not relevant to the determination that the Respondent is in arrears because the wording in the Agreement requires him to be responsible for all post-secondary expenses. However, either party may disagree about the interpretation of a term of the Agreement, and the Respondent has questioned the interpretation of terms under section 5. Pursuant to section 17, the mechanism to address this is set out.

[105] The standard for fairness is whether the summary judgment motion can provide the court with confidence that they have the necessary facts to apply the relevant legal principles to resolve the dispute. I cannot say with confidence I have the necessary facts based on the record before me. Additional information is needed. As a result, I have not considered the second step of the process as set out in Hryniak.

iii) Undue Delay

[106] There is no question this matter has been protracted. Each party points to the other for the basis of the delay. It is clear the Respondent has challenged positions taken by the Applicant and it may be interpreted that the sole purpose is to further delay these proceedings.

[107] Each side has included correspondence about their respective efforts to maintain momentum in moving this matter towards arbitration and/or through the court proceedings. I find each side has been slow to respond on different occasions. I do find, however, that the Respondent did not always respond in a timely manner but not so far as to be inappropriate to grant a stay.

[108] The Respondent relied on nine bases for which he had determined the children are no longer entitled to support. I find only three of the nine reasons may have merit, items i) are the children, who are adults, still children of the marriage; ii) whether C. and J. are enrolled in full-time studies; and iv) whether the expenses are special and extraordinary expenses.

[109] In terms of the other bases that the Respondent seeks to suggest termination of support is warranted including alleged breaches by the Applicant relating to negative comments and breach of the confidentiality clauses, I put no weight. The Respondent has not sought to raise this prior to this motion, and did not include it in his amended notice of motion. Further, text messages filed between the parties show that the Respondent has breached the non-disparage term when communicating with at least one of the children. That child asked him to refrain from commenting about the Applicant. Lastly, based on the evidence presented, I fail to see how the children have withdrawn from parental control. They may not have a perfect relationship with the Respondent or one he envisions, however, there is still a relationship.

[110] The Respondent also argued the proposed arbitrator should be able to determine whether this is an issue he is capable of arbitrating pursuant to the competence-competence rule. This is not an appropriate case for the Respondent’s proposed arbitrator, William McDowell to determine the issue of jurisdiction. This is a case where it is clear the proposed arbitrator does not have the appropriate certification as required by legislation therefore there is no ambiguity regarding his jurisdiction. This is confirmed through an inquiry of Mr. McDowell himself wherein he inquired if the court would waive the necessity of his need to obtain the mandatory credentials.

[111] It is important for parties to be able to rely on a Separation Agreement as being final and binding. Parties are entitled to disagree as to the interpretation of the terms in the Agreement as they do in this case. This emphasizes the need for the parties to attend Arbitration first to sort out the interpretation to be given to the child support provisions after which the arrears and/or reimbursement can be determined.

[112] Having determined none of the exceptions to refuse to grant a stay have been met in this case, the matter should be remitted to arbitration.

Appointment of an Arbitrator

[113] The Agreement required the parties to sign a mediation/arbitration agreement within 90 days appointing three named arbitrators, and if they were unable to act, the parties would attempt to agree on an alternate or one may be appointed by the court. Although the parties did not sign the mediation/arbitration agreement as required, the Applicant’s counsel contacted each of the three parties to canvas their availability.

[114] On February 1, 2023, two of the three potential arbitrators, advised they do not arbitrate family law matters and declined to assist. The third individual, William C. McDowell also advised he does not conduct family law arbitrations but would consider acting if the parties waived the necessity of him having the mandatory training and certification required of family law arbitrators under the Arbitration Act.

[115] Mr. McDowell confirmed that he had not completed the requisite training and was not able to complete the training within the timeframe required and suggested the parties make other inquiries. In August, the Respondent contacted Mr. McDowell again, who indicated if a Court was prepared to waive the requirement, he would be prepared to assist.

Respondent’s Position

[116] The Respondent requested the court appoint William C. McDowell. Despite his not having completed the requisite training, the Respondent argued the court could order the parties to abide by the results of an arbitration conducted by Mr. McDowell or he could file a report for the court to consider in making its own determinations. The Respondent also indicated he would undertake to be bound by any decision made by Mr. McDowell.

[117] Further, the Respondent argued Mr. McDowell should have been permitted to determine whether he was capable of arbitrating the issue pursuant to the competence-competence rule.

Applicant’s Position

[118] The Applicant seeks to have a certified family law arbitrator appointed as the Arbitrator. The Applicant expressed concern if an arbitration proceeded with an arbitrator who does not have the necessary credentials as required by the legislation, it would not result in a binding award.

[119] The Applicant argued that an arbitration award made by an arbitrator who is not a certified family law arbitrator is not enforceable by the court. Mr. McDowell has not completed the training approved by the Attorney General and is not a certified family law arbitrator, therefore, any arbitration award made by him would not be enforceable by the court.

[120] To require the Applicant to obtain an arbitration award from an arbitrator that can not be enforced by the court would be unjust and would result in additional time and money to enforce the Respondent’s child support obligations pursuant to the Agreement.

[121] The Applicant further argued that the Dispute Resolution section of the Agreement does not comply with the formal requirements of the Family Arbitration Regulation and therefore does not constitute a valid arbitration agreement.

Analysis (Arbitrator Appointment)

[122] The Arbitration Act defines a "family arbitration" as an arbitration that 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 and is conducted exclusively in accordance with the law of Ontario or of another Canadian jurisdiction. Further, the Family Arbitration Regulation defines a "secondary arbitration" as a family arbitration that is conducted in accordance with a separation agreement, a court order or a family arbitration award that provides for the arbitration of possible disputes relating to the ongoing management or implementation of the agreement, order, or award.

[123] A secondary arbitration award is only enforceable, pursuant to sections 59.6(1) and 59.7(1) of the FLA, if the following conditions are met:

(a) 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; and

(b) the arbitrator complies with any regulations made under the Arbitration Act, 1991.

[124] Pursuant to section 3 of the Family Arbitration Regulation, "[e]very arbitrator who conducts a family arbitration shall have received the training approved by the Attorney General for the arbitrator or class of arbitrators, as set out on a Government of Ontario website." Further, sections 2(2)(b) and 2(4) of the Family Arbitration Regulation, require confirmation from the arbitrator that he or she has received the appropriate training approved by the Attorney General.

[125] The legislation and regulations are very clear. There are no exceptions to appoint an arbitrator who has not obtained the proper credentials (Magotiaux v. Stanton). Furthermore, appointing an arbitrator who does not possess the appropriate credentials would only lead to further litigation. Any arbitration award would be unenforceable and based on the history of this proceeding, I am confident whoever was not the victor would challenge the award irrespective of an Order that it be binding. Like the jurisdiction issue, parties can’t consent to something where there is no authority to do so and that is what the Respondent is requesting.

[126] For all the above reasons, this matter is remitted to arbitration and there is an Order that Cheryl Goldhart, a Certified Family Law Arbitrator, be appointed for that purpose.

[127] If the parties are not able to agree on costs, written submissions may be filed with the Court within fourteen days of this decision, not to exceed three typed double-spaced font, with any offers to settle and bill of costs attached.

Rhinelander J.

Date: August 30, 2024

COURT FILE NO: FS-20-00020662-0001 DATE: 2024-08-30 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: F.W. Applicant – and – D.B. Respondent REASONS FOR decision Rhinelander J. Released: August 30, 2024