CITATION: Fleming v. Thomson, 2025 ONSC 5684
DIVISIONAL COURT FILE NO.: 90/24
DATE: 20251006
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sweeny RSJ, Nakatsuru, and Shore JJ.
BETWEEN:
Jill Anne Fleming
Jill Anne Fleming, Self-Represented
Appellant
- and -
JAMES WILLIAM SCOT THOMSON
Shawn M. Philbert, Counsel for the Respondent
Respondent
HEARD in person in Brampton on October 6, 2025
REASONS FOR DECISION
SHORE J.
ORALLY
[1] The parties entered into signed Minutes of Settlement, resolving their parenting issues. The terms of the Minutes were incorporated into a final consent order of Justice McGee, dated May 8th, 2024, as amended on October 22nd, 2024.
[2] Under the Minutes of Settlement, the parties agreed to parenting coordination services with Mary Jo Franchi-Rothecker as the arbitrator. The Minutes contained secondary arbitration clauses regarding parenting issues, and a referral of future disputes on these issues to the parenting coordinator/arbitrator.
[3] Following an initial arbitration award, the Applicant Mother refused to participate and continue with the parenting coordination process, contrary to the terms of their Minutes/order.
[4] On November 1, 2024, the Applicant served an unsigned and undated notice of appeal with respect to the consent order. She subsequently served a proper notice of appeal, with the appeal to be before the Superior Court of Justice.
[5] On January 23rd, 2025, the Applicant served the Respondent Father with a copy of her Notice of Application for Judicial Review of the same order, naming the Respondent and the arbitrator as Respondents.
[6] The appeal and the application seek almost identical relief.
[7] On February 13, 2025, the Applicant served an amended Notice of Application for Judicial Review, removing the arbitrator as a party to the proceedings, in accordance with a direction of Justice Trimble, dated February 10, 2025.
[8] The issue of the Court’s jurisdiction to hear this matter was raised by the Respondent at the outset of this hearing.
[9] The Respondent submits that the application was commenced in the wrong court and that this matter should be proceeding in the Superior Court, under the Arbitration Act.
[10] The Applicant submits that she was referred to the Divisional Court by Justice McGee. The endorsement of Justice McGee dated October 22, 2024, provides as follows:
These additional issues are outside the scope of today's 30-minute attendance. Nonetheless, I offered some procedural assistance by pointing to section 10 of the Arbitration Act, 1991, S.O. 1991, c. 17. Upon a more careful reading, I recommend a review of the whole of that section of the Act, being paragraphs 10 to 16. I am not seized of any Application brought by either party with respect to the Arbitration Act.
[11] Justice McGee also directed the Applicant to the Arbitration Act.
[12] The Arbitration Act provides that:
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). 1991, c. 17, s. 15 (1).
[13] Under s.1 of the Act, “court” is defined as the Family Court or the Superior Court of Justice.
[14] While the Applicant disagrees with the arbitrator’s decisions, the essential relief sought by the Applicant in her application is a removal of Ms. Franchi-Rothecker as the parenting coordinator/arbitrator, given the Applicant’s concerns about the arbitrator’s history with the Alberta Law Society.
[15] Under the Arbitration Act, an application to remove an arbitrator belongs in the Superior Court, not the Divisional Court. The Applicant is before the wrong court.
[16] Even assuming this Court has the jurisdiction to hear this matter, we decline to exercise our discretion to entertain this application. There is a better and more appropriate route that should have been taken by the Applicant. This not a reflection of whether there is merit to the concerns raised by the Applicant.
[17] This application to remove the arbitrator should be addressed under the Family Law Rules and the Arbitration Act.
[18] The Applicant is encouraged to seek legal advice as to the correct process to seek the removal of an arbitrator.
[19] The application is dismissed.
Costs
[20] Both parties filed cost submissions.
[21] As the successful party, the Respondent is entitled to his costs. The Respondent is seeking costs on a substantial indemnity basis, in the sum of $6,587, plus their attendance today and the work done on the weekend. The applicant served case law and an offer to settle over the weekend. The Respondent beat his offer to settle.
[22] The applicant was seeking costs in the sum of over $8,000 in her cost submission but erroneously included the arbitration fees. The applicant submits she is unable to afford costs, and she was simply following the procedures that she was advised to follow. She submits there should be no costs payable.
[23] Having considered the facts of this case, and the cost rules, costs are fixed in the sum of $2,500 payable by the applicant to the respondent.
“Sweeny RSJ”
“Nakatsuru J.”
“Shore J.”
Released: October 6, 2025
CITATION: Fleming v. Thomson, 2025 ONSC 5684
DIVISIONAL COURT FILE NO.: 90/24
DATE: 20251006
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
JILL ANNE FLEMING
Appellant
- and -
JAMES WILLIAM SCOT THOMSON
Respondent
REASONS FOR DECISION
Released: October 6, 2025