Court File and Parties

Court File No.: D48687/09 Date: 2012-09-10

Ontario Court of Justice

Toronto North Family Court

Between:

NIKKI MCALISTER Applicant

- and -

CARMI GALLANT Respondent

Counsel:

• Jonathan Kline, for the Applicant
• Daryl Gelgoot and Meghan Lawson, for the Respondent

Heard: September 6, 2012

Justice: S.B. Sherr

Endorsement

Part One – Introduction

[1] The parties are the parents of Uma Gallant (the child), born on […], 2008.

[2] On August 3, 2011, the parties entered a mediation/arbitration agreement (the Agreement). They agreed that Linda Chodos would mediate their parenting issues, and if mediation was unsuccessful, she would arbitrate any parenting issues that remained in dispute.

[3] On August 28, 2012, Ms. Chodos released an arbitration decision (the Award) determining the school that the child would attend for the 2012/2013 school year.

[4] The father has brought a motion seeking the following:

a) An order setting aside or vacating the Award.

b) The removal of Ms. Chodos as arbitrator;

c) A declaration that the Agreement with Ms. Chodos is invalid/and or ceases to exist;

d) Staying the arbitration of Ms. Chodos;

e) An order that all issues relating to custody and access, including what school the child is to attend in September, 2012, shall remain status quo pending the hearing and disposition of this motion.

[5] The father also asked the court to make a temporary order that the child attend Abacus Montessori Learning Centre for 2012/2013, notwithstanding the Award.

[6] The mother asked the court to dismiss the father's motion. She argued that this court lacked jurisdiction to make the orders sought by the father, and to the extent that it did have jurisdiction, it should decline to do so. She asked the court to stay the parenting proceeding in this case to permit the mediation/arbitration process to continue. [1]

[7] The primary issues for this court to decide on this motion are:

a) Does the Ontario Court of Justice have jurisdiction to make the orders sought by the father? If so, to what extent can it, or should it, make such orders?

b) Was the Agreement in force at the time of the Award? In particular, did Ms. Chodos resign prior to making the Award?

c) Can or should the court make a temporary parenting order as requested by the father despite the Award?

d) Should the court grant a stay of the parenting proceeding in this case?

Part Two - Background

[8] The parties were involved in a common-law relationship from September 15, 2007 until August 24, 2009. They have the one child together.

[9] The mother issued an application for custody and child support in this court on August 29, 2009. The father filed an Answer/Claim seeking joint custody of the child, together with a request for a shared parenting arrangement.

[10] The parenting and support issues were case-managed by Justice Robert Spence. The parties advised Justice Spence on October 20, 2010 that they were proceeding to private mediation/arbitration on the outstanding issues, with the exception of child support.

[11] On August 3, 2011, the parties reached a consent regarding the parenting schedule for August and with respect to holiday time in September of 2011. This consent was incorporated into an order of Justice Spence. On the same day, the parties also entered into the Agreement with Ms. Chodos. The support issues remained before the court.

[12] The child attended the Abacus Montessori Learning Centre for the 2011/2012 school year.

[13] The case was adjourned several times on consent, and without any court appearance, by Form 14B motions. The parties kept the court advised that they were continuing in the mediation/arbitration process with Ms. Chodos.

[14] The parties started the mediation phase of the process in November of 2011. Several mediation sessions were held over the ensuing months.

[15] The father wrote emails to Ms. Chodos, in November of 2011, on January 25, 2012 and on June 3, 2012 expressing multiple concerns about the process, including that he felt that he wasn't being listened to, that Ms. Chodos favoured the mother and that she was disregarding and diminishing his relationship with the child. He complained about her treatment of him, felt that she was intimidating him to finalize agreements and was improperly questioning his religious sincerity. He felt that Ms. Chodos had improperly permitted her student to participate in the process and that the student had adversely affected the dynamics of the mediation. He expressed his belief that Ms. Chodos was biased against him.

[16] Ms. Chodos sent an email to the parties on June 12, 2012 stating:

I am available on June 28th. Given that summer is close by, I may be able to accommodate an earlier date. I will ask my assistant Kirstie to check tomorrow.

I have concerns because I received a third email from the father in which he accuses me of bias. If the parties are not able to agree that I arbitrate summer access and the remaining parenting issues, a referral to another arbitrator would be appropriate.

I would be happy to provide you with names of arbitrators if you wish.

[17] Counsel for both parties responded to Ms. Chodos by email on June 13, 2012. The father advised Ms. Chodos that he was no longer willing to proceed with the process and he interpreted her email of June 12, 2012 as being her resignation. The mother stated her belief that the process should continue and indicated that she was not prepared to change the arbitrator. The mother expressed that if the father felt that Ms. Chodos was biased, that he should follow the procedure for removing an arbitrator for bias set out in section 13 of the Arbitration Act (the Act). She added that if Ms. Chodos did not continue with the process on the basis of a reasonable apprehension of bias that she would seek a refund of fees paid to her.

[18] On June 15, 2012, Ms. Chodos emailed counsel for the parties stating that she had considered their comments. Portions of this email are as follows:

The comments that were made in that June 12th email were made during the mediation stage. I considered this pre-emptive as I was concerned about the potential issue of bias that Mr. Gallant raised.

Ms. McAlister wishes to declare an impasse. Mr. Gallant wishes the matter should go to court.

In my opinion, further mediation will not work. Attempts to reach a solution for the holiday schedule resulted in conflicted negotiation and little, if any, progress. Summer is imminent.

The med/arb contract, paragraph 1 gives me jurisdiction to determine any question of custody/access or anything incidental to that.

Having regard to paragraph 23 of the med/arb agreement, I am declaring an impasse. The outstanding matters are now in arbitration.

The issue of bias can be dealt with in accordance with Section 13 of the Arbitration Act.

[19] In this email, Ms. Chodos suggested a process for the arbitration. She proposed dealing with the issue of the summer schedule first.

[20] The father subsequently brought a motion in this court to deal with the issue of summer access, returnable on June 28, 2012. The parties reached an out-of-court settlement of this issue. Justice Spence endorsed on June 28, 2012 that the parents had reached this agreement and noted that the mother did not attorn to the court's jurisdiction to determine the issues of custody and access. He adjourned the support issues until October 2, 2012 for a case conference.

[21] The father did not seek directions from the court about the mediation/arbitration process in his motion returnable on June 28, 2012.

[22] On July 25, 2012, Ms. Chodos sent counsel for the parties another email. She referenced a recent email sent by the father saying that he could no longer afford her services. She wrote that the mother's counsel had responded to her request to set timelines for the arbitration, but that the father's counsel had not. She set out in the email that she would proceed with the arbitration and, given the timing, would first hear the issue of the child's school placement in September. She set out specific timelines for written submissions on the issue of school placement.

[23] The mother complied with the timeline set out by Ms. Chodos and made written submissions on the school placement issue. The father did not make submissions.

[24] On August 22, 2012, counsel at the time for the father (Pauline Malcolm) sent an email to Ms. Chodos. She asked that Ms. Chodos take no further steps, writing:

Please note that Mr. Gallant is in the process of bringing a motion to remove you as Arbitrator. He is currently in the process of retaining Mr. Harold Niman of Niman, Zemans, Gelgoot in this regard. We are therefore requesting that you take no further steps in this matter until the court has had an opportunity to decide as to whether you should sit as Arbitrator.

[25] Ms. Chodos proceeded with the arbitration of the school placement issue. She released the Award on August 28, 2012. In the Award she commented that:

a) The mediation process completely broke down and an impasse was declared on June 15, 2012.

b) The father, on August 22, 2012, which was well past the time to submit responding materials, served notice by way of an email of his intention to bring a motion to challenge the arbitrator.

c) The notice failed to comply with section 13 of the Arbitration Act and she did not consider this a challenge pursuant to the Act and was not going to comment on it.

d) She did not consider the father's failure to make submissions as an admission of the statements upon which the mother relied to seek relief.

e) The child should attend the public school requested by the mother for the 2012/2013 school term and the mother should be awarded costs on a full recovery basis. She asked the mother for a detailed bill of costs.

Part Three – The Agreement

[26] The following are important clauses from the Agreement for the purpose of this motion:

a) Paragraph 5 – By submitting to arbitration of the issues designated above, the parents hereby waive any right to further litigate those issues in Court, whether pursuant to the Family Law Act, R.S.O., 1990, c.F.3, as amended; the Divorce Act, R.S.C. 1991, c. D3.4 (2nd Supp.), as amended, or any other statute or law.

b) Paragraph 23 – If the issue remains unresolved in mediation after a reasonable effort or because one party unilaterally withdraws from the mediation and Linda Chodos believes that further similar efforts are unlikely to be productive, the arbitration will proceed in accordance with the arbitration provisions of this Agreement.

c) Paragraph 33 – Neither party may unilaterally withdraw from this Agreement prior to the issues being resolved. With their joint consent in writing, both parents may terminate this Agreement.

d) Paragraph 34 – The arbitration may proceed as notified, even if one parent fails to appear at the previously designated time and place, or if one parent fails to provide his/her submissions in the time-line provided.

e) Paragraph 35 – The Arbitrator's mandate terminates when:

• a. she delivers her award;
• b. the arbitrator resigns or dies;
• c. the parties agree to terminate it in accordance, or;
• d. the court removes the arbitrator.

f) Paragraph 39 – The parties have the right to review the Arbitrator's award in accordance with s. 46 of the Arbitrations Act.

[27] There is no issue that the Agreement was a family arbitration agreement as defined in section 1 of the Act. It was made in writing, complied with the regulations made under the Act and the parties received independent legal advice prior to entering into it. This means that the Agreement is governed by both the Act and the Family Law Act (see: subsection 2.1 (1) of the Act). In the event of conflict between the Act and the Family Law Act, the Family Law Act prevails (see: subsection 2.1 (2) of the Act).

Part Four – Analysis

4.1 Does the Ontario Court of Justice have jurisdiction to set aside or vacate the Award?

[28] The authority to set aside an arbitrator's award is contained in section 46 of the Act. This section reads as follows:

Setting aside award

46. (1) On a party's application, the court may set aside an award on any of the following grounds:

47. A party entered into the arbitration agreement while under a legal incapacity.

48. The arbitration agreement is invalid or has ceased to exist.

49. The award deals with a dispute that the arbitration agreement does not cover or contains a decision on a matter that is beyond the scope of the agreement.

50. The composition of the arbitral tribunal was not in accordance with the arbitration agreement or, if the agreement did not deal with that matter, was not in accordance with this Act.

51. The subject-matter of the dispute is not capable of being the subject of arbitration under Ontario law.

52. The applicant was not treated equal and fairly, was not given an opportunity to present a case or to respond to another party's case, or was not given proper notice of the arbitration or of the appointment of an arbitrator.

53. The procedures followed in the arbitration did not comply with this Act.

54. An arbitrator has committed a corrupt or fraudulent act or there is a reasonable apprehension of bias.

55. The award was obtained by fraud.

56. The award is a family arbitration award that is not enforceable under the Family Law Act. 1991, c. 17, s. 46 (1); 2006, c. 1, s. 1 (7).

Severable parts of award

(2) If paragraph 3 of subsection (1) applies and it is reasonable to separate the decisions on matters covered by the arbitration agreement from the impugned ones, the court shall set aside the impugned decisions and allow the others to stand.

Restriction

(3) The court shall not set aside an award on grounds referred to in paragraph 3 of subsection (1) if the party has agreed to the inclusion of the dispute or matter, waived the right to object to its inclusion or agreed that the arbitral tribunal has power to decide what disputes have been referred to it.

Idem

(4) The court shall not set aside an award on grounds referred to in paragraph 8 of subsection (1) if the party had an opportunity to challenge the arbitrator on those grounds under section 13 before the award was made and did not do so, or if those grounds were the subject of an unsuccessful challenge.

Deemed waiver

(5) The court shall not set aside an award on a ground to which the applicant is deemed under section 4 to have waived the right to object.

Exception

(6) If the ground alleged for setting aside the award could have been raised as an objection to the arbitral tribunal's jurisdiction to conduct the arbitration or as an objection that the arbitral tribunal was exceeding its authority, the court may set the award aside on that ground if it considers the applicant's failure to make an objection in accordance with section 17 justified.

Connected matters

(7) When the court sets aside an award, it may remove the arbitral tribunal or an arbitrator and may give directions about the conduct of the arbitration.

Court may remit award to arbitral tribunal

(8) Instead of setting aside an award, the court may remit it to the arbitral tribunal and give directions about the conduct of the arbitration.

[29] Section 1 of the Act defines court as follows:

"court", except in sections 6 and 7, means the Family Court or the Superior Court of Justice; ("tribunal judiciaire").

[30] Subsections 21.1 (1) and (2) of the Courts of Justice Act define the Family Court as follows:

Family Court

21.1 (1) There shall be a branch of the Superior Court of Justice known as the Family Court in English and Cour de la famille in French.

Unified Family Court

(2) The Unified Family Court is amalgamated with and continued as part of the Family Court.

[31] The Ontario Court of Justice is not a Family Court and accordingly has limited jurisdiction under the Act. It can only make orders under sections 6 and 7. It has no jurisdiction to make an order under section 46 of the Act. Only the Family Court or the Superior Court of Justice has the jurisdiction to set aside an arbitrator's award.

4.2 Does the Ontario Court of Justice have jurisdiction to hear a challenge of the arbitrator?

[32] The authority to challenge an arbitrator is set out in section 13 of the Act. This section reads as follows:

Challenge

13. (1) A party may challenge an arbitrator only on one of the following grounds:

14. Circumstances exist that may give rise to a reasonable apprehension of bias.

15. The arbitrator does not possess qualifications that the parties have agreed are necessary.

Idem, arbitrator appointed by party

(2) A party who appointed an arbitrator or participated in his or her appointment may challenge the arbitrator only for grounds of which the party was unaware at the time of the appointment.

Procedure for challenge

(3) A party who wishes to challenge an arbitrator shall send the arbitral tribunal a statement of the grounds for the challenge, within fifteen days of becoming aware of them.

Removal or resignation of challenged arbitrator

(4) The other parties may agree to remove the challenged arbitrator, or the arbitrator may resign.

Decision of arbitral tribunal

(5) If the challenged arbitrator is not removed by the parties and does not resign, the arbitral tribunal, including the challenged arbitrator, shall decide the issue and shall notify the parties of its decision.

Application to court

(6) Within ten days of being notified of the arbitral tribunal's decision, a party may make an application to the court to decide the issue and, in the case of the challenging party, to remove the arbitrator.

Arbitration may continue

(7) While an application is pending, the arbitral tribunal, including the challenged arbitrator, may continue the arbitration and make an award, unless the court orders otherwise.

[33] The Ontario Court of Justice is not defined as a court for the purpose of section 13 of the Act. The father can only challenge the arbitrator in the Family Court or the Superior Court of Justice.

[34] I note that pursuant to subsection 13 (7) of the Act, while an application to challenge the arbitrator is pending, the arbitrator may continue the arbitration and make an award, unless the court orders otherwise. Only the Family Court or the Superior Court of Justice has the authority to "order otherwise" under this subsection. The father did not bring an application to challenge the arbitrator and Ms. Chodos had the statutory authority to proceed with the arbitration.

4.3 Does the Ontario Court of Justice have jurisdiction to remove Ms. Chodos as the arbitrator?

[35] Section 15 of the Act sets out the process to remove an arbitrator. This section reads as follows:

Removal of arbitrator by court

15. (1) The court may remove an arbitrator on a party's application under subsection 13 (6) (challenge), or may do so on a party's application if the arbitrator becomes unable to perform his or her functions, commits a corrupt or fraudulent act, delays unduly in conducting the arbitration or does not conduct it in accordance with section 19 (equality and fairness).

Right of arbitrator

(2) The arbitrator is entitled to be heard by the court if the application is based on an allegation that he or she committed a corrupt or fraudulent act or delayed unduly in conducting the arbitration.

Directions

(3) When the court removes an arbitrator, it may give directions about the conduct of the arbitration.

Penalty

(4) If the court removes an arbitrator for a corrupt or fraudulent act or for undue delay, it may order that the arbitrator receive no payment for his or her services and may order that he or she compensate the parties for all or part of the costs, as determined by the court, that they incurred in connection with the arbitration before his or her removal.

Appeal re penalty

(5) The arbitrator or a party may, within thirty days after receiving the court's decision, appeal an order made under subsection (4) or the refusal to make such an order to the Court of Appeal, with leave of that court.

No other appeal

(6) Except as provided in subsection (5), there is no appeal from the court's decision or from its directions.

[36] Once again, the Ontario Court of Justice is not defined as a court for the purpose of section 15 of the Act. Only the Superior Court of Justice or the Family Court has the jurisdiction to make an order removing an arbitrator.

4.4 Does the Ontario Court of Justice have jurisdiction to stay the order of Ms. Chodos?

[37] The authority of the Ontario Court of Justice to stay a proceeding is contained in section 106 of the Courts of Justice Act. This section reads as follows:

Stay of proceedings

106. A court, on its own initiative or on motion by any person, whether or not a party, may stay any proceeding in the court on such terms as are considered just. [2]

[38] The Ontario Court of Justice is a statutory court. While it has the statutory authority to stay a proceeding before it, it has no jurisdiction to stay the award of a private arbitrator that the parties have contracted with. The father has other statutory avenues to challenge the Award.

4.5 Did Ms. Chodos resign as the arbitrator?

[39] The father takes the position that in her email of June 12, 2012, Ms. Chodos resigned. His position is that the Agreement was at an end and he is free to pursue the parenting issues in this court.

[40] This position appears to be a case of wishful thinking by the father and is not supported by the evidence.

[41] At no point in her email of June 12, 2012 did Ms. Chodos resign. She starts the email suggesting a date for a continuation of the process. She then makes a suggestion to refer the matter to another arbitrator due to the father's claims of bias and offers to provide a list of arbitrators if the parties wish. A suggestion is not a resignation.

[42] Ms. Chodos subsequently reviewed the responses of both parties to her email of June 12, 2012. Her response on June 15, 2012 was clear. She stated that she had not resigned, declared an impasse to mediation, and set out a process to arbitrate the outstanding issues in accordance with the Agreement. She then followed through with the arbitration process.

[43] I find that Ms. Chodos did not resign and that the Agreement remains in effect.

[44] The father made it clear to Ms. Chodos in Ms. Malcolm's email of June 13, 2012 that he was not continuing with the mediation/arbitration process. There had been a breakdown in the mediation of the parenting issues that had been referred to Ms. Chodos. It was appropriate, in these circumstances, for Ms. Chodos to declare an impasse and proceed to the arbitration phase of the process to determine all outstanding issues that had been referred to her. The father cannot unilaterally withdraw from the process and then turn around and expect to successfully argue that a specific parenting issue that had not been mediated, within the entire parenting spectrum, cannot be arbitrated.

4.5 Section 6 of the Act

[45] It is evident by now that the Ontario Court of Justice has very limited jurisdiction once the parties agree to enter into a private mediation/arbitration process. However, the court does have jurisdiction to make orders under section 6 of the Act.

[46] Section 6 of the Act reads as follows:

Court intervention limited

6. No court shall intervene in matters governed by this Act, except for the following purposes, in accordance with this Act:

7. To assist the conducting of arbitrations.

8. To ensure that arbitrations are conducted in accordance with arbitration agreements.

9. To prevent unequal or unfair treatment of parties to arbitration agreements.

10. To enforce awards.

[47] The jurisdiction of the Ontario Court of Justice to intervene is further limited since paragraph 4 of section 6 (the ability to enforce awards) is in conflict with subsection 59.8 (1) of the Family Law Act, which reads:

Enforcement

59.8 (1) A party who is entitled to the enforcement of a family arbitration award may make an application to the Superior Court of Justice or the Family Court to that effect.

[48] Both subsections 2.1 (2) of the Act and 59.1 (2) of the Family Law Act state that when there is a conflict between the Act and the Family Law Act, that the Family Law Act prevails. Accordingly, the Ontario Court of Justice has no jurisdiction to enforce an award. Its jurisdiction is restricted to the first three paragraphs in section 6 of the Act.

[49] This leads to an examination as to whether this court should intervene in this arbitration pursuant to section 6 of the Act. I find that there is no basis to do so.

[50] The father has not asked the court to give directions to assist in the conduct of the arbitration. Instead, he wants the court to treat the arbitration at an end. The court is not prepared to do this.

[51] The father had ample time to seek the assistance of this court in the conduct of the arbitration before Ms. Chodos made the Award. She notified him on June 15, 2012 that she was proceeding with the arbitration and did not make the Award until August 28, 2012. She even invited the father to follow the appropriate procedure under the Act to challenge her for bias in her email of June 15, 2012. He chose not to do this. The father cannot successfully argue that his failure to take the appropriate legal steps to address his concerns was a function of inadequate time or cost. He had the time and resources to bring the motion before this court on June 28, 2012 for summer access. He did not seek any direction from this court at that time about the conduct of the arbitration.

[52] It appears from the record that Ms. Chodos conducted the arbitration in accordance with the Agreement. She advised the parties that they had moved to the arbitration phase of the process. She attempted to set up a telephone conference with counsel to discuss procedural matters. The father's counsel did not respond. The Agreement provides that Ms. Chodos could conduct the hearing by way of written documents and submissions and she proceeded in that fashion. In accordance with the Agreement, she set up timelines for the filing of submissions. She rendered the Award in accordance with the terms of the Agreement.

[53] The father also did not seek timely direction from this court with respect to his allegations of unequal or unfair treatment, despite having the opportunity to do so. Instead, he chose to unilaterally treat the process at an end, and then attempted to attack it once the Award was rendered.

[54] In any event, the father did not satisfy me, on a balance of probabilities, that he was given unequal or unfair treatment in this process. His subjective belief of unfairness was not supported objectively. Ms. Chodos conducted numerous mediation sessions. The father's access was increased during the course of these sessions from three nights every two weeks to five nights every two weeks. She held conference calls with counsel. She was responsive to the father's request to have his parents participate in the mediation. Her student (if in fact her presence was a problem) did not participate in the process after January 19, 2012.

[55] Ms. Chodos made it very clear to the father that she was moving to the arbitration phase. She proceeded cautiously with the arbitration, only dealing with the immediate issue of what school the child would attend for this school year. She advised the father that he could proceed with his allegations of bias pursuant to the Act. He didn't do this. She gave the father a fair opportunity to participate in this process and make submissions. She gave him fair timelines to make his submissions. It was his choice not to participate.

[56] The father argues that Ms. Chodos treated him unfairly by proceeding with the arbitration of the school issue after receiving Ms. Malcolm's email of August 22, 2012. I disagree. Ms. Malcolm had advised Ms. Chodos on June 13, 2012 that the father felt the process was over. The father knew by June 15, 2012 that Ms. Chodos was continuing with the arbitration phase of the process. The father did not seek relief from the court. There was no time frame set out in Ms. Malcolm's email of August 22, 2012 as to when the father might challenge Ms. Chodos. The issue of school for the child for this school year was important to the parties (as evidenced by this rush motion by the father). An arbitrator is entitled to continue with the process even if his or her status is being challenged in court (see: subsection 13 (7) of the Act). The father had not even begun the court challenge. The arbitrator was entitled to proceed. This was not unfair treatment of the father.

4.7 Can or should the court make the temporary parenting order requested by the father despite the Award?

[57] The father argues that the court always has the jurisdiction to override the decision of the arbitrator and make a decision that is in the child's best interests. He argues that the court should do so in this case. He filed a letter from the child's previous school describing how well the child had performed there. He argues that this school is best-suited to the child's needs since it is for full days, not the half-days she would attend at the school chosen by Ms. Chodos.

[58] In Wainwright v. Wainwright, 2012 ONSC 2686, Justice M.J. Nolan reviewed the case law about the court's ability to make custody and access decisions when there is an agreement for mediation/arbitration and wrote at paragraph 156:

Taken together, the cases referred to above make clear that courts will be justified in ignoring a mediation/arbitration clause contained in a domestic contract where it can be shown that the enforcement of the same would be contrary to the best interests of a child caught at the centre of a custody or access dispute. In the case before me, I must decide whether to include such a clause in a final order in accordance with para. 35 of the Minutes of Settlement.

[59] Wainwright is distinguishable from the case before me as its focus was on whether or not it was appropriate to include a mediation/arbitration clause, contained in Minutes of Settlement, in a final court order. The case exhaustively reviewed screening standards for domestic violence and power imbalances in both mediation and arbitration. The court decided that the parties could mediate and arbitrate in the future but only if there was a proper intake for mediation in accordance with sub-clause 17(8)(b)(iii) of the Family Law Rules, which include screening in accordance with the procedures approved by the Ontario Association for Family Mediation and the Ontario Ministry of the Attorney General. These concerns are not present in the case before me.

[60] Several Superior Court decisions have invoked their parens patriae jurisdiction to make custody/access orders despite the parties agreeing to first participate in a private dispute resolution process (see: Lenney v. Lenney (1996), 194 A.R. 50 (Q.B.); Duguay v. Thompson-Duguay (2000), 7 R.F.L. (5th) 301 (Ont. S.C.); McGrath v. Hawketts, 2009 NBQB 216). The Ontario Court of Justice does not have such jurisdiction.

[61] These cases are also all distinguishable on other grounds. In Duguay, the court had multiple concerns about the private dispute resolution process, including the fact that there was no signed agreement by the participants and the arbitrator appeared to have unilaterally designed the arbitration process, despite the mother's wish not to continue – she had not formally contracted to participate in arbitration, yet an arbitration award was made. The court found that the arbitration agreement was not binding. The court also found that the mother could not afford the process. These facts are quite different than those before this court.

[62] In McGrath, the court was dealing with whether it would force a mother to comply with a prior court order requiring her to first mediate/arbitrate parenting issues, when events had significantly changed since the order had been made – she had moved away from the jurisdiction with the child.

[63] In Lenney, the parties agreed in a divorce judgment to joint custody and to mediate any parenting issues before bringing the case back to court. The mother moved to court to change the custody order without first mediating it. The court found that it could make a decision if the children's best interests required it before mediation took place, but chose not to do so. The court found that unless special circumstances exist, the court should enforce the agreement. In the facts of the case, the court found that there was no urgency or threat to the best interests of the children, and concluded it would be improper to interfere with the parties' agreement.

[64] There is a significant distinction between this case and Lenney. In Lenney, the parties had agreed to only mediate the parenting issue before they could bring it to court. Here the parties have agreed to mediate/arbitrate the parenting issues. Where the parties limit themselves to a mediation agreement, there may be instances where an important decision for a child has to be made, but there is no mechanism to make it, as the mediator will have no authority to do so. In such circumstances, the court will need to intervene to protect the best interests of the child. This is not the case when the parties agree to mediate/arbitrate. There is a mechanism in place to make important decisions for the child if the parties cannot reach an agreement – there is no need for court intervention to fill a decision-making gap.

[65] There may also be the rare occasion when the court might need to make an urgent temporary order about children when a mediation/arbitration process has been agreed to, but has not started. This was the case in M.K. v. M.C., 2007 ONCJ 456, a decision of Justice Robert Spence. In M.K, the parties had agreed to a mediation/arbitration process that had not started. Justice Spence found that the biological father was unjustifiably being denied access to the child. The court intervened pursuant to its authority under paragraph 3 of section 6 of the Act to ensure that the father was not treated unfairly by the process. Justice Spence made a temporary access order that would be in place until the private dispute resolution process could take place. [3] As in Lenney, this case is distinguishable as here, the mediation/arbitration process is well underway and there is a decision-making mechanism in place to address the best interests of the child – a mechanism that the parties agreed to.

[66] In Puigbonet-Crawford v. Crawford, the court explained the policy reason for the primacy of the arbitration process over the judicial process as follows: "Its purpose is to encourage parties to resort to arbitration as a method of resolving their disputes in various matters, including family law matters, and to require them to hold to that course once they have agreed to do so."

[67] In paragraphs 158 and 160 of Wainwright, supra, Justice Nolan sets out arguments against the court taking an interventionist approach in these matters as follows:

[158] The interventionist position that has been adopted by courts in some of the mediation/arbitration clause decisions to which I have referred earlier has not gone unnoticed by the family law bar, nor has it escaped criticism by some of them. Indeed, the rulings in Lenney, Duguay and McGrath have been the subject of some disagreement by practitioners, some of whom themselves serve as mediators and arbitrators. For example, in their brief review of the court's decision in McGrath, prominent family law lawyer Philip Epstein and mediator Lene Madsen state the following (Philip Epstein & Lene Madsen, "Alternative Dispute Resolution: McGrath v. Hawketts, 2009 CarswellNB 341 (N.B. Q.B.)" Epstein and Madsen's This Week in Family Law (17 November 2009) (available on WLeC)):

The Court commented that "in my view, parens patriae jurisdiction enables the court to intervene to override private agreements where it is in the best interests of the child to do so." This ignores the fact that parens patriae jurisdiction is reserved for situations where there are legislative gaps.

Further, said the Court, if the court's jurisdiction were ousted by section 7 of the Arbitration Act, the practical effect would be to place the determination of custody and access in the hands of the arbitrator chosen by the parties. Exactly. That is what an arbitration clause is supposed to do! Where parties make an agreement to use an alternative dispute resolution process, the prevailing case law holds that parties are to be kept to their bargain.

[160] In addition to their apparent disagreement with the prevailing substantive law, critics have also charged that the mediation/arbitration clause decisions, as well as the interventionist attitudes they promote, will have the effect of eroding certainty and finality in parties' legal relations, which is usually heralded as one of the great advantages of alternative dispute resolution. In this respect, Andrea Himel has asked: "[H]ow can one expect finality through arbitration, if the Court will always re-open the issue under its parens patriae jurisdiction?" (Andrea Himel, "Mediation/Arbitration Agreements: The Binding Comes Undone" (2002-2003) 20 Can. Fam. L.Q. 55, at p. 63).

[68] I find the arguments set out by the critics of the interventionist approach compelling. The intervention of the Ontario Court of Justice in the face of private mediation/arbitration agreements should be limited to its statutory jurisdiction under sections 6 and 7 of the Act. The court should be loathe to intervene in the mediation/arbitration process where that process has begun and there is a mechanism in place to make decisions about a child's best interests in a timely manner. It is difficult to imagine a circumstance where it will be appropriate for a judge of the Ontario Court of Justice to substitute its own decision for an Award that has just been made by an arbitrator, as requested by the father. Here, the parties reached an agreement that the best interests of the child would be determined though the mediation/arbitration process – an agreement that they bargained in good faith. If the father feels that the process or the Award is flawed, he has a statutory pathway to follow for court intervention. He has not, for the most part, followed that pathway. The parties should be held to their bargain.

[69] Lastly, even if I had found that this court could substitute its decision for that of the arbitrator, I find absolutely no basis to interfere with the Award on the ground of the child's best interests. Ms. Chodos set out in the Award appropriate reasons why attending the school preferred by the mother was in the child's best interests. The mother is the child's primary caregiver, the school is in the mother's area and she does not have the financial ability to pay private school fees at this stage. Ms. Chodos set out that the mother is educated as a teacher and has volunteered at the school, gaining first-hand knowledge of how the school functions. Ms. Chodos accepted the mother's view that the school is conducive to teaching community values and friendship and to appreciate persons of diverse backgrounds. She found that the child is bright and adapts well to new environments. The father had the opportunity to make contrary submissions and chose not to do so. This was a judgment call, and well within the range of being a reasonable judgment call on the facts before Ms. Chodos.

4.8 Section 7 of the Act

[70] The mother asks that the court formally order a stay of the parenting proceeding before this court. Section 7 of the Act reads as follows:

Stay

7. (1) 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.

Exceptions

(2) However, the court may refuse to stay the proceeding in any of the following cases:

1. A party entered into the arbitration 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.
5. The matter is a proper one for default or summary judgment.

Arbitration may continue

(3) An arbitration of the dispute may be commenced and continued while the motion is before the court.

Effect of refusal to stay

(4) If the court refuses to stay the proceeding,

(a) no arbitration of the dispute shall be commenced; and

(b) an arbitration that has been commenced shall not be continued, and anything done in connection with the arbitration before the court made its decision is without effect.

Agreement covering part of dispute

(5) The court may stay the proceeding with respect to the matters dealt with in the arbitration agreement and allow it to continue with respect to other matters if it finds that,

(a) the agreement deals with only some of the matters in respect of which the proceeding was commenced; and

(b) it is reasonable to separate the matters dealt with in the agreement from the other matters.

No appeal

(6) There is no appeal from the court's decision.

[71] There is no question that if a party starts a new court case when an arbitration agreement is in force that section 7 of the Act applies. However, does section 7 apply when there is already an existing court case, the parties enter into a mediation/arbitration agreement during the course of the case, and subsequently, one of the parties re-activates the court case by bringing the issue that is the subject of the mediation/arbitration agreement back to court? Is this "commencing a proceeding" as described in subsection 7 (1) of the Act?

[72] The word proceeding is not defined in the Act or in the Family Law Act. It is not defined in the Family Law Rules. Rule 1.03 of the Rules of Civil Procedure defines proceeding as an action or application. Pursuant to sub-rule 1 (7) of the Family Law Rules, the court may, if it considers it appropriate, import provisions from the Rules of Civil Procedure, if the family law rules do not cover a matter adequately.

[73] Black's Law Dictionary defines proceeding as:

1. The regular and orderly progression of a lawsuit, including all acts and events between the time of commencement and the entry of judgment. 2. Any procedural means for seeking redress from a tribunal or agency. 3. An act or step that is part of a larger action.

[74] In Imoney Corp. v. Quebecor Communications Inc., [2002] O.J. No. 4309 (SCJ), the defendant moved to stay a summary judgment motion brought by the plaintiff pursuant to section 106 of the Courts of Justice Act. The plaintiff argued that there was no jurisdiction to stay the motion relying on the definition of proceeding in the Rules of Civil Procedure. The plaintiff argued that a summary judgment motion was not a proceeding. The court disagreed and relied on the definition of proceeding in Black's Law Dictionary set out above. It found that since a summary judgment motion could be dispositive of an action, it qualified as a proceeding.

[75] While the father's motion is not dispositive of the action, I find it is appropriate to apply the more liberal definition of proceeding set out in Black's Law Dictionary (as compared to the Rules of Civil Procedure). I find that if a party initiates an act or a step (such as a motion) within an existing case, seeking relief which is the subject-matter of a mediation/arbitration agreement in force, that this is a proceeding for the purpose of section 7 of the Act. This interpretation is consistent with the overall scheme of the Act, which is to promote the integrity of family arbitration agreements, and to limit court intervention to specific circumstances. Whether a party initiates a new court process or reactivates an existing court process that has been in abeyance when there is a mediation/arbitration agreement in force shouldn't matter.

[76] I find that none of the exceptions to a stay set out in subsection 7 (2) of the Act apply in the circumstances of this case. I will grant a stay of the parenting proceeding in this case pursuant to subsection 7 (1) of the Act.

[77] In the event that I am wrong and section 7 of the Act is inapplicable in these circumstances, I find that it is appropriate to exercise my jurisdiction to stay the custody and access issues in this case pursuant to section 106 of the Courts of Justice Act. The parties voluntarily agreed to enter into a private dispute resolution process with respect to the parenting issues and that process should be given considerable deference. At this point, I find no legal justification, on the basis of the evidence before me, to interfere with that process.

Part 5 – Conclusion

[78] An order will go on the following terms:

a) The father's motion is dismissed.

b) The parenting proceeding in this case is stayed.

c) The support issues will continue in this court and will return as previously scheduled for a case conference before Justice Spence on October 2, 2012 at 11:00 a.m.

[79] If the mother wishes to seek her costs of this step, she shall serve and file written submissions no later than September 20, 2012. The father will then have until October 1, 2012 to serve and file a written response. The submissions should not exceed five pages, not including any offer to settle, or bill of costs. The submissions should be delivered to the trial coordinator's office on the second floor.

[80] I thank counsel for their professional presentation of this motion.

Justice S.B. Sherr

Released: September 10, 2012

Footnotes

[1] The parties did not bring formal motions seeking the relief set out in paragraphs five and six. I permitted them both to bring oral motions seeking this relief as all of the necessary evidence concerning these requests was before the court.

[2] This section applies to all courts in Ontario (see: section 95 of the Courts of Justice Act).

[3] The preferable step for counsel to take in these cases is to contact the mediator/arbitrator and arrange an earlier date for the hearing of the urgent issue and, if the mediator/arbitrator is not available, to have the mediator/arbitrator appoint another person to deal with the urgent issue. The court can also be asked pursuant to section 6 of the Act to appoint a mediator/arbitrator on an urgent basis, as part of its function to assist in the conduct of arbitrations. Coming to the court to determine the issue should be the last option.