CITATION: Kaplan v. Kaplan, 2015 ONSC 1277

NEWMARKET COURT FILE NO.: FC-08-031280-01

DATE: 20150227

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Ari Nathan Kaplan, Applicant

AND:

Ruth Kaplan, Respondent

BEFORE: The Hon. Mr. Justice J.P.L. McDermot

COUNSEL: Applicant unrepresented

J. Piafsky, for the Respondent

K. Bromley for the Office of the Children’s Lawyer

HEARD: December 1, 2014

ENDORSEMENT

Introduction

[1] Alternative dispute resolution plays an increasing role in the administration of justice in family law. Of late, mediation and/or arbitration is often seen as a solution to the often chronic delays which sometimes plague the court system. The popularity of arbitrations and the desire of parties to control their own process resulted in the 2006 amendments to the Family Law Act[^1] (the “FLA”) and the Arbitration Act, 1991[^2] (the “Arbitration Act”) to ensure that arbitrations are conducted in a consistent and fair manner for all litigants according to Ontario law.

[2] Arbitrations, however, depend largely on the goodwill of the parties involved. They are not particularly effective when the litigants are, for lack of a better word, ungovernable. Arbitrators do not have the powers of a court to compel directions through contempt or other means. Awards of an arbitrator, whether temporary or final, are not immediately enforceable; they must be incorporated into a court order through s. 59.8 of the FLA which can result in delays in or problems with enforcement.

[3] In this case, there is very little goodwill between the parties. Both Mr. and Ms. Kaplan are extremely intelligent, but as well, have an extremely toxic relationship. There is no trust between them. There is a long history, stretching back to their separation, of actions taken by each of them which have been harmful to one another and their three children. They have been locked in an ongoing war with each other for almost as many years that they lived together.

[4] Notwithstanding this difficult history, in 2009, Mr. and Ms. Kaplan chose to arbitrate their custody and financial issues using Tom Bastedo, a well-known arbitrator and family law lawyer. Against all odds, they settled their issues, the custody issues being settled by an arbitral award made in 2010 and the financial issues being settled by way of a separation agreement (which the arbitrator had to rule on when the respondent refused to sign it) about 18 months later. Both these agreements contained secondary arbitration clauses requiring a referral of future disputes to arbitration.

[5] Continued peace between the parties was a vain hope. About a year after negotiating the parenting issues, Mr. Kaplan attempted to return to mediation; after Mr. Kaplan presented 18 issues to the mediator, Ms. Kaplan refused to participate, citing bad faith and excessive costs. These proceedings began by application brought by Mr. Kaplan in June, 2013 as a result of a dispute over which school the parties’ middle son would attend. I was told that this particular issue has now been resolved, but the litigation continues. In his application, Mr. Kaplan checked off the box requesting custody of the children; he specifically requests, however, that the custody issues be referred to arbitration with Dr. Elizabeth Saunders pursuant to the secondary arbitration clause in the custody award noted above. He also requested appointment of the Office of the Children's Lawyer.[^3] Ms. Kaplan responded with an answer and respondent’s claim requesting sole custody and financial relief; it is her position that the secondary arbitration clauses are not binding on her.

[6] The matter has now made its way to trial. Mr. Kaplan’s motion was a pre-trial motion which was 53 pages long; as far as I can see, however, the basic relief that he requests is for summary judgment dismissing Ms. Kaplan’s claim, for a stay of her custody and support proceedings pursuant to s. 6 of the Arbitration Act, as well as an order referring this matter to arbitration. He also requested an order setting aside the order of Vallee J. made on August 13, 2013.

[7] At the same time, Ms. Kaplan brought a motion for disclosure of Mr. Kaplan’s medical records. She further brought a motion to strike certain exhibits to Mr. Kaplan’s affidavit sworn November 2, 2014; I struck those exhibits as they disclosed portions of the closed mediation process that the parties participated in. Finally, Ms. Kaplan requested the striking of certain portions of the trial record. Although it was apparent that Mr. Kaplan failed to comply with Douglas J.’s endorsement of November 27, 2014 requiring the motion and the affidavits to be filed in the continuing record, the matters were argued using the materials contained in the trial record; it appears that this part of the respondent’s motion was effectively withdrawn as there was no objection to Mr. Kaplan referring to his materials contained in the trial record at the motion. In order to preserve the record upon which this motion was argued, I am going to retain the trial record in its present form but order Mr. Kaplan to file a further trial record that complies with the rules.

[8] For the reasons set out below, I have determined the following:

a. Mr. Kaplan’s motion for summary judgment is dismissed;

b. Mr. Kaplan’s motion to stay the custody and support issues under the Arbitration Act is dismissed and those issues shall proceed to trial;

c. Mr. Kaplan’s motion to set aside the order of Vallee J. is dismissed.

d. Ms. Kaplan’s disclosure motion is dismissed.

e. The applicant to file a proper trial record which complies with Rule 23(1).

Background

[9] These parties began living together in October, 1996 and they married on May 25, 1997. There are three children, Zakahary Zvi Kaplan, born November 11, 1999 (“Zak”), Isidor Joseph Kaplan (“Izzy”), born September 20, 2001 and Gabriel Ruben Kaplan, born August 8, 2004 (“Gabe”).

[10] The parties separated on December 10, 2006. After separation, the children remained in the care of Ms. Kaplan.

[11] This is a high conflict case. In fact, as noted above, the parties appear to have been locked in conflict, mostly over their children, for almost as much time as they were together.

[12] Initially after separation, Ms. Kaplan began court proceedings. However, the parties entered into a Family Arbitration Agreement on October 9, 2009 (the “Arbitration Agreement”). In that agreement, they appointed Tom Bastedo, a Toronto family law lawyer, to mediate and then arbitrate their issues. The Arbitration Agreement purported to submit all of their family law issues to arbitration, including equalization of property, child support, spousal support as well as “various parenting issues, including without limitation, custody, access, educational issues, religious upbringing, scheduling and other issues with (sic.) may be advanced at the mediation or arbitration stage.”[^4] Although the agreement does not make it clear that there was to be a mediation/arbitration process, the agreement provided that s. 35 of the Arbitration Act would be waived which would allow this arbitrator to also mediate issues in dispute. Importantly, the agreement provided that the court proceedings would “be stayed, subject to enforcement of any arbitral award.”[^5]

[13] Both parties were represented by counsel, and as required by the Family Arbitration Regulation[^6] made pursuant to the Arbitration Act, Certificates of Independent Legal Advice were appended to the agreement for both parties. The Arbitration Agreement also appears to have largely complied with the applicable regulations: notwithstanding Ms. Kaplan’s assertion that she was not screened for power imbalances,[^7] Jaret Moldaver, Ms. Kaplan’s lawyer, certified that “[m]y client has been screened for power imbalance and domestic violence and I hereby confirm that I am satisfied that my client is fully able to participate and instruct counsel in this Mediation/Arbitration.” In the Statement of Arbitrator, Mr. Bastedo states that, “the parties were separately screened for power imbalances and domestic violence and I have considered the results of the screening and will do so throughout the arbitration, if I conduct one.” Based upon these certificates, it initially appeared that both parties had been pre-screened and that the Arbitration Agreement complied with the requirements of the FLA and the associated regulation governing arbitration agreements.[^8]

[14] Even though the agreement was unclear as to whether mediation was part of the process, the parties did enter into mediation the assistance of Mr. Bastedo. They settled their parenting issues and Mr. Moldaver, dictated a memorandum on February 24, 2010 which was incorporated into an arbitral award signed by Mr. Bastedo (the “Parenting Award”). The memorandum states that the parties had agreed to “parenting terms in accordance with the parenting terms as set out in Ruth’s Offer to Settle dated February 16, 2010 as amended by this Memorandum.”[^9] That offer was presumably the attached draft separation agreement; it provided for joint custody of the children with primary residence to Ms. Kaplan. The memorandum provided for time sharing concerning the children, again referring to the attached draft agreement. It acknowledged that Zak was then already somewhat estranged from his father and his failure to attend access was not a breach of the parenting agreement. Significant to this motion, the memorandum sought to provide for secondary arbitration in paragraph 17 which read as follows:

With respect to Paragraph 4.21, if Ruth and Ari cannot agree on a parenting issue, with the exception of custody and/or mobility, they will first try to mediate the issue with a mutually agreeable mental health and parenting professional. If they are unable to agree on the selection of a mediator, then one will be appointed by Tom Bastedo. The Mediation will be open. If the parties are unable to resolve the issue in Mediation, then the issue will be submitted to Arbitration before Tom Bastedo and the parties shall share the cost of the Mediation and Arbitration equally, subject to re-apportionment by Tom Bastedo in his absolute and unfettered discretion. The parties shall enter into an Agreement for Arbitration which conforms to the Arbitration Act and the Family Law Act and they will reserve their rights to appeal only on issues of law.

[15] As noted in the affidavit of Ms. Kaplan sworn November 19, 2014, the differences between paragraph 4.21 of the draft separation agreement and paragraph 17 of the memorandum are significant.[^10] Apart from the fact that it proposes a different arbitrator, paragraph 4.21 of the agreement did not exclude custody and mobility from the secondary arbitration process; as well, that paragraph contemplates a method of choosing an alternative arbitrator if the proposed arbitrator cannot act:

If Ruth and Ari cannot agree on a major decision involving the children and/or if there are any issues arising from the interpretation and/or implementation of the parenting terms of this Agreement, such disputes will be resolved by way of mediation/arbitration with Dr. Howard Irving or another mutually agreeable mental health and parenting professional if Dr. Irving is unable or unwilling to act. If an alternate candidate is necessary and the parties cannot agree, then the candidate will be selected by the Chair of the Family Law Section of the Ontario Bar Association.

[16] On October 28, 2010, Ms. Kaplan’s counsel, Mr. Moldaver, prepared and forwarded to Mr. Kaplan a draft of a separation agreement intended to implement the arbitral award of February 24, 2010. Mr. Kaplan refused to sign it because he perceived that Ms. Kaplan and her lawyer were trying to change the essential terms of the agreement. No agreement was ever signed, and no one took steps to have the arbitral award made into a court order pursuant to s. 59.8 of the FLA. Other than the award (which itself may constitute a domestic contract as the parties signed it and their signatures are witnessed[^11]), there is no order or final agreement between the parties governing custody and access of their children.

[17] The facts surrounding the negotiation of the support issues are distinct and are summarized in the award of Arbitrator Bastedo dated September 2, 2011. Suffice to say that on June 1, 2011, after extensive negotiations regarding property and support, Mr. Kaplan purported to accept an offer and sign two partial separation agreements forwarded to him the previous day by Mr. Moldaver on behalf of Ms. Kaplan. However, Ms. Kaplan then refused to sign the agreements and denied that these actually constituted an offer capable of acceptance by Mr. Kaplan. The issue of whether there was a binding agreement was submitted to arbitration; after a three hour hearing, Mr. Bastedo issued his award on September 2, 2011 confirming that that there was a binding offer and acceptance resulting in an enforceable agreement. Pursuant to that award, Ms. Kaplan signed the partial separation agreement regarding support (the “Support Agreement”) on September 26, 2011.

[18] The Support Agreement provided for Mr. Kaplan to pay child support in the amount of $6,331 per month based upon Mr. Kaplan’s annual income of $401,682. Section 7 expenses were to be equally divided. Spousal support was set at $3,481 per month. Both child support and spousal support were subject to annual review with the intention that Ms. Kaplan would receive 55% of the parties’ net disposable incomes. Importantly, there was, as with the custody award, a provision for secondary arbitration of support issues. The relevant portion of paragraph 7.1 of the Support Agreement reads as follows:

If Ruth and Ari cannot resolve a reviewable or variable issue with respect to this Agreement, which will include a disagreement in terms of special or extraordinary expenses and/or an interpretation/application issue with respect to this Agreement, then they will Mediate/Arbitrate the issue with Tom Bastedo, unless Tom Bastedo is unwilling or unable to act, in which case, they will select another mutually agreeable Senior Member of the Family Law Bar. If Ruth and Ari are unable to agree on an alternate candidate, if necessary, then one will be selected by the chair of Family Law Section of the Ontario Bar Association.

[19] As with custody, disagreements arose. Mr. Kaplan says his income dropped, but he says that he has been unable to move the matter forward to mediation or arbitration. Ms. Kaplan filed the Support Agreement with the court for enforcement purposes through the Family Responsibility Office; it now may be enforced or varied pursuant to s. 35 of the FLA.

[20] There has been little or no peace between these parties in recent years. Without going into detail and without commenting on the merits to be considered at trial, there have been a number of disagreements and issues which have emphasized the inability of these parties to get along or deal with each other as the parents of these three children.

[21] Mr. Kaplan began these proceedings because the parties could not agree on where Izzy would go to school. Apparently, Izzy has special educational needs, and his psychiatrist, Dr. Cole determined that Izzy’s school at that time was not meeting his needs. Mr. Kaplan advocated King Edward Public School, which is in Toronto and closer to Mr. Kaplan’s residence. That change would entail a change in the residential schedule. However, Ms. Kaplan suggested Glen Shields Public School which was in York Region. At one point, there was apparently a trade-off whereby the parties agreed that Izzy would go to Glen Shields in exchange for an agreement that the Children’s Lawyer be appointed; Ms. Bromley was eventually appointed as counsel for the children. I was advised during argument of the motion that the parties have now agreed that Izzy will go to King Edward Public School.

[22] However, Dr. Cole also said that the parental conflict was causing “significant anxiety” for Izzy. On February 25, 2013, Dr. Cole took the step of involving Jewish Family & Child Services (“JF&CS”) because of the harm that the parental conflict has caused Izzy. That agency opened a file. The worker at JF&CS investigated and verified protection concerns arising from adult conflict between Mr. and Ms. Kaplan. Child protection mediation was provided; it was unsuccessful. Notwithstanding the verified protection concerns, JF&CS has now closed their file, partly because it appeared that there was nothing further that could be done for this family.[^12]

[23] Although Mr. Kaplan had suggested mediation and arbitration concerning the schooling issue, that was not the first time since the Parenting Award that he had done so. According to Mr. Kaplan, he originally attempted to engage the mediation and arbitration provisions of the Parenting Award in March, 2011, barely a year after it was issued. Tom Bastedo recommended that Dr. Barbara Fidler be appointed as the mediator in this matter. I am not going to determine blame for this process failing, as I have not heard oral evidence on point, and there are obviously credibility issues at play. Suffice to say that the parties met with Dr. Fidler and an agenda was set. Mediation never took place. It is clear from Ms. Kaplan’s materials that she is of the view that custody issues as raised in her answer and respondent’s claim cannot be arbitrated; she says that Mr. Kaplan presented Dr. Fidler with 18 separate issues, “the sole purpose of which was to make me spend money.”[^13] She says that the attempts to engage her in mediation were in bad faith and wishes the courts to assume jurisdiction over this dispute.

[24] It is also her position that Mr. Kaplan, by bringing this application, has attorned to the jurisdiction of this court. I acknowledge that the application is confusing in its terms. Mr. Kaplan asks for an order that the custody matters be referred to arbitration with Dr. Saunders, yet he also requests that the Office of the Children’s Lawyer be appointed to represent the children. That is inconsistent relief; without a custody dispute before the courts, the Office of the Children’s Lawyer cannot provide assistance. This was clear from the submissions made by Ms. Bromley at the motion. I believe that Mr. Kaplan understands this but he continues to request that the custody claims advanced by Ms. Kaplan be stayed and that the matter be referred to mediation and arbitration. This is notwithstanding the fact that he specifically relies upon and recites findings by the Children’s Lawyer that the children wish more access with him in his affidavit sworn November 2, 2014.[^14]

[25] As well, there have been significant disputes over the children’s doctor, Dr. Anita Greig. Again, I am not going to examine the specifics of the dispute or whose responsibility it was that this issue arose without hearing evidence from the parties. Suffice to say that Dr. Greig has always been the children’s doctor and on July 9, 2013, she wrote a letter stating that she could no longer provide services to these children because she said that Mr. Kaplan had expressed to her that she had a “conflict of interest concerning what is best for my kids, and this is grounded in your repeated over-identification with Ruth, which you have not been able to manage effectively…”[^15] In an earlier letter dated April 16, 2013, Dr. Greig spoke of feeling intimidated by Mr. Kaplan at a meeting between them.[^16] A motion was heard by Vallee J. on August 21, 2013; she determined that it was in the best interests of the children that they continue to be treated by Dr. Greig and that Ms. Kaplan would have “temporary sole decision making authority regarding medical treatment.”[^17] Based upon this decision, Dr. Greig continues as the children’s doctor. It is this order that Mr. Kaplan seeks to set aside in this motion.

[26] Another professional who is now a casualty of this dispute is, surprisingly, Tom Bastedo. On September 8, 2011, Mr. Kaplan wrote to Mr. Bastedo demanding that he resign and refund the $10,000 retainer placed with him. Mr. Kaplan said that he “would like a new mediator/arbitrator appointed to decide the ancillary and implementation issues for our settlement including costs.”[^18] On November 25, 2011, Mr. Bastedo advised that, unless he heard from both parties confirming that they wished him to act, he would resign as arbitrator.[^19] On January 16, 2012, Mr. Kaplan emailed Dr. Fidler complaining of Mr. Bastedo’s “incapacity to review his files and confirm the very consent parenting agreement award that he himself ordered in Feb 2010.”[^20] It is apparent that somewhere along the way, Tom Bastedo lost the confidence of the applicant, and has now resigned as the arbitrator for these parties.

[27] In sum, numerous professionals have attempted to assist these parties and their children. They have not succeeded in doing so. It is in light of these facts that the applicant brings a motion to stay these custody and support proceedings in order to refer them to arbitration pursuant to the secondary arbitration clauses noted above.

Analysis

[28] Mr. Kaplan seeks a number of orders in his 53 page notice of motion. He pursues summary judgment based upon the Parenting Award and a dismissal of the respondent’s claim for custody. He also requests a stay of both Ms. Kaplan’s sole custody and support claims based on the secondary arbitration clauses contained in the Parenting Award and the Support Agreement. He requests an order according to Minutes of Settlement signed by the parties in August, 2013. Finally, he asks for an order setting aside the order of Vallee J. made August 21, 2013.

[29] On the other hand, Ms. Kaplan has brought a motion for disclosure of all of Mr. Kaplan’s medical records as well as the names of any treating physicians involved in his care since February 1, 2010.

[30] The Parenting Award has never been made into a court order or domestic contract. Ms. Kaplan’s lawyer, Mr. Moldaver, attempted to draft a separation agreement incorporating the terms of the Parenting Award, but Mr. Kaplan refused to sign it. As part of his motion, Mr. Kaplan seeks registration and enforcement of the secondary arbitration clause in the Parenting Award respecting the issues set out in his notice of motion. He relies upon s. 59.8 of the FLA as well as the principle that the court defers to arbitration agreements where the parties have chosen that method of dispute resolution.

[31] The summary judgment and arbitration issues respecting custody are interdependent. Mr. Kaplan’s motion to dismiss Ms. Kaplan’s claim for sole custody is based upon the fact that she has not demonstrated a change in circumstances since the Parenting Award was made in February, 2010. Ms. Kaplan says, on the other hand, that there is clearly a triable issue as to whether sole custody should go to trial. She says that the difficulties that the parties have had between them in parenting their children make that apparent to anyone who is or has been involved in this case. This being the case, it is her position that the motion for summary judgment should be dismissed and if it is, then her claim for sole custody trumps Mr. Kaplan’s claim for enforcement of the secondary arbitration clause, which excludes custody issues from consideration by secondary arbitration.

[32] The issues regarding support are distinct. The Support Agreement was made into a partial separation agreement which has been filed with the court, and it is capable of variation and enforcement. There is no issue as to the validity of the secondary arbitration clause in that agreement and Mr. Kaplan therefore seeks a stay of Ms. Kaplan’s support claims contained in her answer and respondent’s claim. Ms. Kaplan says that the difficulties with disclosure make it essential that the courts be involved in that issue as mediation and arbitration will not permit a reasoned decision on support.

[33] There are finally issues arising out of the order of Vallee J. as well as settlement of an order made by way of Minutes of Settlement signed on August 30, 2013 by both parties. Mr. Kaplan wishes an order setting aside the order of Vallee J.; this appears to be connected with his motion for summary judgment giving him joint custody of the children and dismissing the respondent’s claim for sole custody. The parties have been unable to agree on the terms of an order implementing minutes of settlement which, according to Mr. Kaplan, were signed by the parties on August 30, 2013.[^21]

[34] Therefore, I must firstly determine whether the remedy of summary judgment lies; if it does, that ends the matter, at least respecting custody, as Ms. Kaplan’s claim for sole custody would be dismissed. Once this is dealt with, then the court must turn its attention to the arbitration issues, firstly respecting custody, and secondly respecting the support claims; the issues are different for each. Finally, there are the housekeeping issues, being the order of Vallee J. and the order arising from the Minutes of Settlement.

[35] Once I have dealt with Mr. Kaplan’s issues, I must finally consider the disclosure motion brought by Ms. Kaplan.

Summary Judgment

[36] Mr. Kaplan seeks summary judgment under Rule 16 of the Family Law Rules[^22]. He seeks an order “dismissing the Respondent Mother’s claim for sole custody of the children prima facie, for not establishing any unforeseeable material change to Children’s circumstances that could not have been contemplated by the Joint Custody Parenting Award”.[^23]

[37] Mr. Kaplan also separately requests judgment allowing his application. However, as this is based on the secondary arbitration clauses, that issue will be dealt with when I consider the arbitration issues.

[38] Summary judgment may be granted where “there is no genuine issue requiring a trial of a claim or defence”: see Rule 16(6) of the Family Law Rules.

[39] The evidentiary requirement for a party seeking this remedy is set out in Rule 16(4):

The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial.

[40] Much of the case law respecting summary judgment arises from such motions brought in child protection proceedings, but the law is the same in respect of other family matters. The case law makes it clear that the onus is on the moving party to provide clear and cogent evidence showing that there is no genuine issue for trial: see Children’s Aid Society of Halton (Region) v. A.(K.L.), 2006 33538 (ON CA), [2006] O.J. No. 3958 (C.A.) at paragraph 19 and Catholic Children’s Aid Society of Hamilton v. A.(M.), 2012 CarswellOnt 548 (Ont. S.C.J.) at paragraph 35. This means that the affidavit evidence provided by the claimant for summary judgment must be such that I can find, based upon that evidence, and taking into account evidence provided by the responding party, that there is no genuine issue for trial. If there are conflicts on the evidence on major issues or crucial facts upon which the moving party relies, this would raise witness credibility issues and then summary judgment should not be granted and the matter should proceed to trial. Taking into account the severity of the result, a summary judgment motion should never be a remedy as of course and must be approached by the justice hearing the matter with a great deal of caution: See Catholic Children’s Aid Society of Toronto v. M.(L.), 2011 ONCJ 146 (C.J.).

[41] Another way to put it is that, where the result would be a “foregone conclusion”, summary judgment should go. Otherwise, the court should order the matter to proceed to trial: see Children’s Aid Society of the County of Lanark & Town of Smith’s Falls v. S.M., [2010] W.D.F.L. 2361 (Ont. S.C.J.) at paragraph 21.

[42] In a motion for summary judgment, therefore, the onus is on the moving party to prove that there is no genuine issue requiring a trial. Therefore, Mr. Kaplan must satisfy the court that there is no genuine issue concerning joint or sole custody before the court. He must do so with affidavit evidence that contains evidence that demonstrates that a trial of the custody issues is unnecessary and that the respondent’s claim for custody should be dismissed. I find that Mr. Kaplan has failed to meet that onus.

[43] The basis of Mr. Kaplan’s motion for summary judgment is that there has been no change in circumstances since the Parenting Award. Mr. Kaplan suggests that the parental conflict, in fact, pre-dated the Parenting Award, and is therefore not a change in circumstances warranting a change in the custody order: see Litman v. Sherman, 2008 ONCA 485 and Harding v. McCullough, 2012 ONSC 6717.

[44] The material filed by Mr. Kaplan, which can be found in his trial record instead of on the continuing record, consists of a number of affidavits, many of which have very few facts addressing the custody issues contained in the body of the affidavit, but numerous exhibits from which I am supposed to glean that there has been no change of circumstances which would warrant a change from the joint custody arrangement agreed to between the parties in 2010. I would have expected the affidavits to provide specific facts which make it a “foregone conclusion” that there has been no change in the parties’ or the children’s circumstances since February, 2010. There was, however, no narrative in the applicant’s affidavits which prove that there has been no change in circumstances; there is, in fact, very little evidence provided by either party as to the specifics of their relationship leading up to the negotiation of the Parenting Award. All that the material demonstrates is that the parties have been locked in conflict for some time, and largely since the Parenting Award in 2010. Without clear and uncontradicted evidence regarding the situation prior to the Parenting Award, how can I make a finding on this motion that there is no change in circumstances regarding parental conflict on this summary judgment motion?

[45] Furthermore, even were I to find that the applicant had provided prima facie evidence to satisfy his onus under Rule 16, the respondent has “put her best foot forward” in filing a lengthy affidavit in response to the material provided by the applicant: see Children’s Aid Society of the County of Lanark & Town of Smith’s Falls v. S.M., [2010] W.D.F.L. 2361 (Ont. S.C.J.). The respondent’s affidavit sets out the many problems that these people have gone through in trying to make their parenting arrangement work. That affidavit notes a number of changes in circumstances, including the increasing problems in school suffered by Izzy, the resultant schooling dispute between the parties regarding Izzy, his therapy and the concerns expressed by Dr. Cole and the subsequent involvement of JF&CS. This is not to mention the issues concerning the children’s doctor resulting in the order of Vallee J. in August, 2013. The affidavit directly addresses the applicant’s assertion that there has been no change in circumstances since the 2010 Parenting Award.

[46] Based upon the respondent’s affidavit, it appears to me that the difficulties that Izzy had in school, as well as his learning disabilities giving rise to the conflict over his schooling, post-date the Parenting Award as illustrated by the diagnosis contained in the Psychoeducational Test Report dated October 3, 2012.[^24] Similarly, the problems with Dr. Greig post-date the Parenting Award. The children, or at least Izzy, were recently found to at risk by JF&CS because of parental conflict. Notwithstanding the “pre-existing parental conflict”, all of these facts are and could be, on their own, changes in circumstances sufficient to vary the custody arrangement.

[47] More importantly, the affidavit raises credibility issues between the parties which should be addressed at a trial. I cannot decide on the conflicting versions of events in the parties’ affidavits without oral testimony given at trial.

[48] An important example of these credibility issues begins with the statement made by Mr. Kaplan in his August 19, 2013 affidavit “that Ruth and I have the ability to cooperatively parent the children, with assistance where needed.”[^25] That is specifically denied and addressed by numerous assertions in Ms. Kaplan’s affidavit sworn November 13, 2014. The verification by JF&CS of harm caused by parental conflict would also appear to contradict Mr. Kaplan’s statement that he and Ms. Kaplan can co-parent the children. It is apparent that there is conflicting evidence on the central issue raised by Ms. Kaplan as to whether these parties can successfully co-parent their children.

[49] Mr. Kaplan suggests that I make a finding by way of summary judgment that it is only Ms. Kaplan who has instigated the conflict between the parties. In light of the material filed by her, that again would be an issue which could only be decided after oral evidence at trial. Again, that issue is clearly a matter of credibility, and again, a trial is necessary to determine whether I can make that finding.

[50] Finally, there is a real question as to whether there is any need for Ms. Kaplan to prove a change in circumstances to maintain her claim for sole custody. That is because the Parenting Award is not a court order.

[51] I had earlier noted that the Parenting Award may very well qualify as a domestic contract under s. 55(1) of the FLA. However, under s. 17 of the Divorce Act,[^26] a change in circumstances is only necessary in a claim to vary a custody “order.” The separation agreement does not, on its own, have the standing of a court order: see Askalan v. Taleb, [2012] O.J. No. 3947 (S.C.J.) which confirms that a separation agreement is not a court order requiring a material change in circumstances to change its terms. Therefore, even if the memorandum behind the Parenting Award signed by the parties does constitute a domestic contract, no change in circumstances is necessary to vary a domestic contract either under the Divorce Act[^27] or the Children’s Law Reform Act.[^28] The absence of a change in circumstances is therefore not a basis for dismissal of the respondent’s claim in this case.

[52] Mr. Kaplan, however, sought in this motion to register the custody provisions of the Parenting Award which would give it the force of a court order and which would then necessitate a change in circumstances. However, there are procedural barriers to him doing this.

[53] Mr. Kaplan can only register the custody provisions in the Parenting Award under either s. 58.9(1) or (2) of the FLA. Under the first subsection, there would have to be a claim for enforcement of the Parenting Award’s custody provisions in Mr. Kaplan’s application. That claim is absent. Although Mr. Kaplan in his application checked off claims for custody and access, a reading of the details of the orders requested confirms that all that he asks for is that the custody issues be referred to arbitration and for enforcement of the secondary arbitration clause in the Parenting Award. The application does not claim enforcement or registration of the custody provisions of the Parenting Award, and without such a claim, Mr. Kaplan cannot now move for enforcement under s. 58.9(1) of the FLA.

[54] Mr. Kaplan can bring a motion for registration of the award under s. 58.9(2) of the FLA, but only where there is “already a proceeding between the parties to the family arbitration agreement”. The word “already” requires a proceeding pre-dating the Arbitration Agreement made in 2009, which this proceeding is clearly not.

[55] Without amendment of his application, Mr. Kaplan is therefore unable to move in this proceeding for registration of the custody provisions of the Parenting Award under the FLA.

[56] In sum, summary judgment removes a party from the litigation without the benefit of a trial. It is a drastic remedy, and should only be granted on the clearest of evidence. That evidence was not forthcoming based upon the affidavits filed by the applicant, and there are serious credibility issues between the parties as demonstrated by the respondent’s affidavit. There have been numerous problems between the parties since 2010 which may very well qualify as a change in circumstances, warranting a variation in the joint custody arrangement agreed to nearly five years ago.

[57] For all of these reasons, the applicant’s motion for summary judgment regarding the applicant’s claim for sole custody is therefore dismissed.

Secondary Arbitration Agreements

[58] Mr. Kaplan requests an order that the respondent’s proceedings regarding both custody and support be stayed. He bases this claim on the secondary arbitration provisions in both the Parenting Award and the Support Agreement which require certain disputes arising out of those agreements to be referred to arbitration.

[59] As I noted, there are two secondary arbitration clauses in issue and the issues are unique for each clause. Prior to dealing with the specific custody and support issues, I need to review the principles surrounding arbitrations, and the effect that a referral to arbitration has on court proceedings. As well, I need to specifically address Ms. Kaplan’s contention that she is not bound by the Arbitration Agreement for lack of pre-screening.

Enforceability of Arbitration Agreements in General

[60] Family arbitration agreements in general are governed by the Arbitration Act, and the Family Law Act: see s. 2.1(1) of the Arbitration Act. These two statutes, as well as the regulations made pursuant to the Arbitration Act, address the formalities required for an enforceable family arbitration agreement, the applicable law to be applied in arbitrations in Ontario, as well as the enforcement of a family arbitration agreement.

[61] Prior to 2007, there were few specific provisions applicable to family arbitration agreements; they were dealt with in the same manner as any other arbitration agreement. In 2007, substantial amendments were made by the legislature with the view of ensuring consistency and fairness in the arbitration of family disputes, as well as to ensure that any imbalance of bargaining powers between spouses was addressed prior to a dispute being submitted to arbitration.

[62] The definition of family arbitrations and arbitration agreements in general are dealt with in s. 1 of the Arbitration Act; the definitions of family arbitrations are mirrored in s. 51 of the Family Law Act. The applicable provisions of s. 1 of the Arbitrations Act are as follows:

1. In this Act,

“arbitration agreement” means an agreement by which two or more persons agree to submit to arbitration a dispute that has arisen or may arise between them;

“family arbitration” means an arbitration that,

(a) deals with matters that could be dealt with in a marriage contract, separation agreement, cohabitation agreement or paternity agreement under Part IV of the Family Law Act, and

(b) is conducted exclusively in accordance with the law of Ontario or of another Canadian jurisdiction

“family arbitration agreement” and “family arbitration award” have meanings that correspond to the meaning of “family arbitration”

[63] Under ss. 6 and 7 of the Arbitration Act, 1991, the court has limited ability to interfere in a validly constituted arbitration:

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.

11. (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.

(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.

[64] Enforcement of all or part of a family arbitration award which arises from a validly constituted arbitration is through an application, such as Mr. Kaplan’s application, brought under s. 59.8 of the Family Law Act:

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.

(2) If there is already a proceeding between the parties to the family arbitration agreement, the party entitled to enforcement shall make a motion in that proceeding rather than an application.

(3) The application or motion shall be made on notice to the person against whom enforcement is sought and shall be supported by,

(a) the original award or a certified copy;

(b) a copy of the family arbitration agreement; and

(c) copies of the certificates of independent legal advice.

(4) If the family arbitration award satisfies the conditions set out in subsection 59.6 (1), the court shall make an order in the same terms as the award, unless,

(a) the period for commencing an appeal or an application to set the award aside has not yet elapsed;

(b) there is a pending appeal, application to set the award aside or application for a declaration of invalidity; or

(c) the award has been set aside or the arbitration is the subject of a declaration of invalidity

[65] As the original proceeding in this matter was stayed upon Mr. Bastedo being retained as arbitrator, Mr. Kaplan has followed the correct process in commencing an application to enforce the secondary arbitration proceedings contained in the Parenting Award. As I noted above, the only provision of the Parenting Award sought to be enforced in the present case is the secondary arbitration clause, clause 17, which was set out and discussed above. Mr. Kaplan has not sought in his application to enforce the custody proceedings in the Parenting Award; this may make purposeful as he seeks to vary those clauses, as well as to raise further parenting issues, in mediation and arbitration as set out in the secondary arbitration clause.

[66] Subject to the best interests of the children, and in the absence of grounds for the court to exercise its parens patriae jurisdiction in order to protect those best interests, in general, the court owes deference to the arbitration process, especially in light of the regulation of the arbitral process by two statutes as noted above: see Rosenberg v. Minster, 2014 ONSC 845.

[67] Accordingly, assuming the arbitration process is validly constituted, the starting point, both respecting the Parenting Award and the Support Agreement, is that the court must defer to and respect the arbitration process agreed to and awarded in the arbitration process. Without more, the custody and support proceedings would be stayed as requested by Mr. Kaplan, with the parties proceeding to a secondary arbitration as provided for in both awards. The issue before me is whether the issues raised by Ms. Kaplan concerning both the terms of the award and the best interests of the children displaces the deference to be provided to the process chosen by the parties in 2010 and 2011.

Arbitration Agreement Dated October 9, 2009

[68] These parties signed the Arbitration Agreement with Mr. Bastedo in October, 2009. I have outlined the terms above, including the fact that the agreement on its face appeared to comply with the Family Arbitration Regulation which required pre-screening of all parties for domestic violence and power imbalance issues. Specifically, the agreement contained both the solicitor’s and the arbitrator’s confirmations of pre-screening of both parties in order to address domestic violence and power imbalance issues as required by the regulation.

[69] Notwithstanding these terms, Ms. Kaplan denies that she was pre-screened prior to entering into the agreement. She says in her affidavit that she “was never properly screened for mediation or arbitration.”[^29] Later, she states that, “I was never properly screened for mediation or arbitration nor could I possibly have been, given that I did not know about Ari’s mental health issues at the time.”[^30] During argument, Ms. Kaplan’s counsel, Ms. Piafsky, stated that Ms. Kaplan had never been pre-screened prior to entering into either the Parenting Award or the Support Agreement; indeed, Ms. Piafsky claimed that Ms. Kaplan did not even know what pre-screening was.

[70] Pre-screening is an issue that only affects the Parenting Award. The validity or non-validity of the Arbitration Agreement can have no effect on the Support Agreement as it stands on its own as a domestic contract, and there is no claim by Ms. Kaplan to set that agreement aside. In fact, she seeks to enforce certain of its terms. On the other hand, assuming the secondary arbitration clause in the Parenting Award is an award made pursuant to the Arbitration Agreement, the award would fail along with the Arbitration Agreement were it found to be invalid.

[71] A family arbitration agreement is, effectively, a domestic contract and must follow the formalities of a domestic contract. However, there are further requirements for enforceability of a family arbitration agreement. Under s. 59.6 of the Family Law Act, there are certain requirements for a family arbitration agreement being enforceable by the courts:

59.6 (1) A family arbitration award is enforceable only if,

(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;

(b) each of the parties to the agreement receives independent legal advice before making the agreement;

(c) the requirements of section 38 of the Arbitration Act, 1991 are met (formal requirements, writing, reasons, delivery to parties); and

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

[72] There is no question that the parties had independent legal advice. Although Mr. Kaplan has been unrepresented for much of the proceedings, he had a lawyer when he signed the Arbitration Agreement: Herschel Fogelman signed Mr. Kaplan’s Certificate of Independent Legal Advice which was appended to the agreement. Ms. Kaplan’s lawyer, Jared Moldaver, signed her Certificate of Independent Legal Advice. However, the issue raised by Ms. Kaplan is whether the agreement complied with the pre-screening requirements contained in the regulations.

[73] The Family Arbitration Regulation made pursuant to the Arbitration Act requires pre-screening of all participants in an arbitration:

2. (1) Every mediation-arbitration agreement made on or after September 1, 2007 shall contain,

(b) if made on or after April 30, 2008, the provisions set out in paragraphs 1, 2, 3 and 4 and subparagraphs 5 i, ii and iii of subsection (4).

[74] This agreement, having been made after April 30, 2008, must therefore contain the following, according to s. 2(4) of the regulation:

(4) The following are the provisions referred to in subsections (1), (2) and (3):

1. The arbitration will be conducted in accordance with, (choose either i or ii)

i. the law of Ontario, and the law of Canada as it applies in Ontario, or

ii. the law of ......................... (name other Canadian jurisdiction), and the law of Canada as it applies in that jurisdiction.

2. Any award may be appealed as follows: (choose either i or ii)

i. A party may appeal the award in accordance with subsection 45 (1) of the Arbitration Act, 1991.

ii. A party may appeal the award on, (choose one or more of the following)

A. a question of law,

B. a question of fact, or

C. a question of mixed fact and law.

3. The arbitrator for this arbitration is ......................... (name of arbitrator).

4. (For each party): I, ......................... (print name of party), confirm that I have received independent legal advice and have attached to this agreement a copy of the certificate of independent legal advice that was provided to me under subsection 59.6 (2) of the Family Law Act. …………………………………………..………….

(Signature of party)

5. I, ......................... (print name of arbitrator), confirm the following matters:

i. I will treat the parties equally and fairly in the arbitration, as subsection 19 (1) of the Arbitration Act, 1991 requires.

ii. I have received the appropriate training approved by the Attorney General.

iii. The parties were separately screened for power imbalances and domestic violence and I have considered the results of the screening and will do so throughout the arbitration, if I conduct one.

(Signature of arbitrator)

[75] Firstly, I am not willing to find that Ms. Kaplan was not properly screened for power imbalance and domestic violence issues. She is an intelligent woman who works at a university. Both her own solicitor and the arbitrator confirmed that the screening was done. Ms. Kaplan has given no details of what occurred prior to the agreement being entered into; she has also not canvassed that issue with either the arbitrator or her former solicitor. If Ms. Kaplan is alleging that she was not pre-screened, I would have thought that she would provide detailed evidence of her recollection as to what she was told, or as to her discussions, or lack of discussions, about domestic violence or power imbalances prior to the agreement being entered into. She could have requested the pre-screening reports from the arbitrator’s file but did not. As was the case for Mr. Kaplan’s claim for summary judgment, Ms. Kaplan must provide a clear narrative of the evidence that she relies upon to prove that she was not pre-screened. Although it is difficult to prove a negative, some particulars of her recollection leading up to her execution of the Arbitration Agreement should have been provided in support of her contention that she was not pre-screened, and that both her lawyer and the arbitrator essentially got it wrong.

[76] Ms. Kaplan has also failed to provide evidence of how the failure to pre-screen affected her negotiation of the award. Throughout the mediation and arbitration process, she was represented by competent counsel and she has not complained about threats, subtle or otherwise, that affected her ability to make a reasoned decision in settling the parenting or financial issues. I note also that the Support Agreement resulted from an offer to settle submitted by her own lawyer, and that it was not arrived as a result of negotiations, but through correspondence. The Support Agreement was imposed by decision of the arbitrator after argument. If there was no screening carried out as alleged by Ms. Kaplan, it does not appear to have affected the negotiation of either agreement.

[77] Finally, if Ms. Kaplan truly does not know what pre-screening is, I don’t know how she can say that it never occurred.

[78] As well, I do not believe that the alleged mental health issues of the husband are a factor in the screening process. Ms. Kaplan alleges in her materials that the husband has mental health issues which made screening impossible as she was not aware of them at the time. However, Mr. Kaplan’s statements that he has PTSD is not necessarily evidence of that condition; it is appears to be a self-diagnosis no more binding on the court than any other lay diagnosis of a mental health issue. Certainly, Mr. Kaplan’s two therapists who are treating him state that he does not have any sort of mental illness or disorder.[^31] As such, there is insufficient evidence of mental health issues to vitiate Ms. Kaplan’s screening prior to the arbitration.

[79] Moreover, even if Mr. Kaplan were found to have a mental disorder at the time the agreement was entered into, that would not necessarily affect either power imbalance issues or domestic violence issues. Mediation or arbitration pre-screening concerns the behaviour one or both of the parties, and although that can be (and usually is) affected by the mental health of the perpetrator, that behaviour, rather than the underlying mental disorder, would be the subject matter of the pre-screening.

[80] Finally, a review of the Family Arbitration Agreement confirms that it essentially complies with most of the formalities required by the regulation noted above.[^32]

[81] Accordingly, I find that Ms. Kaplan was pre-screened for arbitration purposes and that the Arbitration Agreement is valid. Accordingly, the Parenting Award, and specifically the secondary arbitration award contained in that document, is potentially enforceable under s. 58.9 of the Family Law Act.

Enforcement of the Secondary Arbitration Clause in the Parenting Award

[82] Generally, as suggested by Mr. Kaplan, the court owes deference to family arbitrations, including an agreement by the parties to enter into arbitration: see the Arbitration Act, ss. 6 and 7. See also Wainwright v. Wainwright, 2012 ONSC 2686 at paragraphs 164 and 165, Duguay v. Thompson-Duguay, 2000 22515 (ON SC), [2000] O.J. No. 1541 (S.C.J.) at paragraph 31 and Rosenburg v.Minster, supra, at paragraphs 76 and 77.

[83] That deference is, however, subject to the terms of the secondary arbitration clause. If that clause is inapplicable to the present dispute, the motion for registration of that part of the award and for a stay of the custody proceeding must be dismissed. Furthermore, Ms. Kaplan submits that the secondary arbitration award is subject to the best interests of the children and that it would not be in their best interests for the custody and access issues to be submitted to arbitration.

(a) Terms of Secondary Arbitration Clause

[84] The first issue to be considered concerns the terms of the secondary arbitration clause. Ms. Kaplan submits that it is defective on two fronts. Firstly, she says that the clause named only one arbitrator, Tom Bastedo; now that he has resigned, the secondary arbitration clause is a nullity and no longer effective. Furthermore, Ms. Kaplan says that the arbitration clause does not apply to the issues raised by her in her answer; she requests a change in custody, something that she points out is specifically excluded under the clause which allows for mediation and arbitration of a “parenting issue, with the exception of custody and/or mobility.” (emphasis mine).

[85] Regarding the first issue, the secondary arbitration clause provides that, if there is to be an arbitration (which appears to be the case considering the success rate of mediation in this matter) “the issue will be submitted to Arbitration before Tom Bastedo”. It is the position of Ms. Kaplan that there was an agreement that only Mr. Bastedo arbitrate the agreement. Since Mr. Bastedo has resigned as arbitrator, and as there was no clause which addressed replacement of the arbitrator, Ms. Kaplan says that the secondary arbitration clause is no longer effective.

[86] The fact that an appointed arbitrator resigns does not necessarily mean that the arbitration cannot take place. Section 16 of the Arbitration Act states as follows:

16. (1) When an arbitrator’s mandate terminates, a substitute arbitrator shall be appointed, following the procedure that was used in the appointment of the arbitrator being replaced.

(3) The court may appoint the substitute arbitrator, on a party’s application, if,

(a) the arbitration agreement provides no procedure for appointing the substitute arbitrator; or

(b) a person with power to appoint the substitute arbitrator has not done so after a party has given the person seven days notice to do so.

(5) This section does not apply if the arbitration agreement provides that the arbitration is to be conducted only by a named arbitrator.

[87] The respondent relies upon s. 16(5) and submits that this arbitration agreement provided that the parenting arbitration was only to be conducted by Tom Bastedo. She relies upon Lyon v. Lyon, [2004] O.J. No. 1645 (S.C.J.) where Belch J. chose to ignore an arbitration clause which named a specific arbitrator who had, as with Mr. Bastedo, resigned.

[88] In fact, a review of that case indicates that, although there was a consideration of s. 16(5) of the Arbitration Act, that was not the basis of the decision for the court to assume jurisdiction; in fact, at paragraph 21 of the case, Belch J. took charge of the case because of the change in circumstances since the arbitral award, as well as the fact that the parties had apparently waived their rights to arbitration by seeking “relief through the court process.” As well, the litigation history (“four years of litigation and I assume payment of substantial professional fees”) was a further basis for the court assuming jurisdiction.

[89] In fact, the operative wording in s. 16(5) is the requirement that the “arbitration is to be conducted only by a named arbitrator”: see Murphy v. Wise, 2010 ONSC 5185 at paragraph 37. In other words, for s. 16(5) to become operative, the secondary arbitration clause must indicate that the parties are “wedded” to the particular arbitrator and that no other person was acceptable to conduct the arbitration. The mere naming of an arbitrator is not sufficient.

[90] The present arbitration clause does not require that only Mr. Bastedo conduct the arbitration. There is no indication in the clause that that no other arbitrator was acceptable to arbitrate the parties’ issues. This is confirmed by the conduct of Mr. Kaplan, the proponent of mediation and arbitration of this dispute; had he thought that only Tom Bastedo could arbitrate the dispute, why would he have requested his resignation in September, 2011? I do not find that is was the intention of the parties that only Mr. Bastedo arbitrate this dispute and as such, a further arbitrator could be appointed by the court under ss. 16(1) and 16(3) of the Arbitration Act.

[91] The second issue is, however, more problematic. Ms. Kaplan has filed an answer and claim by respondent requesting a number of claims respecting the children. There are numerous claims in that answer which essentially set out Ms. Kaplan’s parenting plan for the children; however, these appear to be incidents of the essential claim by the respondent mother for “sole custody of the children of the marriage.” That claim constitutes a substantial change from the Parenting Award, which provided that the parties would have joint custody of the children, with their primary residence to remain with the mother.

[92] The wife’s claim for sole custody is not merely an issue of nomenclature. The custodial relationship in this case is a major issue for both of these parties. Not only is it a change from the Parenting Award; it appears that Ms. Kaplan wishes to remove the father from any decision-making role concerning the children based on her position that Mr. Kaplan’s conduct makes joint custody impossible. Sole custody is, according to Ms. Kaplan, necessary because there was “a long history of parenting conflict” which she attributes in her answer as being “a direct result of the Father’s conduct.”[^33] Later in the answer, Ms. Kaplan says that Mr. Kaplan’s “unreasonable conduct makes joint custody unrealistic and unworkable.”[^34] Effectively, Ms. Kaplan says that she should be responsible for making all of the decisions regarding the children because the father deprecates her to the children and also because he “creates conflict regarding decisions for the children which creates serious anxiety for the children.”[^35]

[93] In Mr. Kaplan’s lengthy reply, he says that there has been no change in circumstances since the Parenting Award which would warrant a change from joint to sole custody. However, he acknowledges that there has been conflict between the parties; in a section in his reply, he states that there has been “a core thread in our conflict, namely, my and Ruth’s inability to make peace for the sake of the children.” In her answer, Ms. Kaplan blamed Mr. Kaplan for the conflict between the parties; in his reply, Mr. Kaplan similarly blames his wife for the ongoing conflict between the parties. He states that “Ruth cannot make peace with me” and that her reactions are “intensely personal to her and not in concert with Izzy’s needs.”[^36] He sums up in his reply, perhaps in a somewhat ponderous manner, that “over the past seven years Ruth has projected a pattern of binary conduct when anyone interferes with her perception of right and she experiences an acute empathy-deficit with tremendous capacity to punish, which obscures her otherwise good parenting judgment.”[^37]

[94] It is apparent from a review of the materials and the pleadings that the issue of a sole or joint custody relationship is extremely important to these parties and, in turn, to the children. This may explain why the parties determined in paragraph 17 of the Parenting Award to remove the issue of custody from the parenting issues capable of being considered and determined through mediation and arbitration in the Parenting Award. As noted above, the parties agreed in that document to mediate and then arbitrate any “parenting issue, with the exception of custody and/or mobility.” And it is important to note that this differed from the paragraph in the draft separation agreement attached which permitted arbitration of “a major decision involving the children” without limitation.

[95] I cannot help but conclude from a plain reading of Paragraph 17 of the Parenting Award that the parties came to a conscious decision that custody issues were to be excluded from arbitration under the secondary arbitration clause contained in the Parenting Award. This does not only refer to who the children are going to live with; considering the importance that each party places on whether custody be sole or joint, and considering the conflict that has taken place since the Parenting Award, that clause would prevent an arbitrator from determining the major issue raised in the respondent’s answer, being her claim for sole custody.

[96] As such, based upon the wording of the secondary arbitration clause, the applicant’s motion to stay the mother’s custody proceedings and to refer the issues to arbitration is dismissed.

(b) Best Interests of Children

[97] I also want to deal with the issue of best interests of the children and whether arbitration is appropriate to deal with the custody matters in this case. In sum, were the arbitration clause sufficient to permit arbitration of custody disputes, I would still determine that the court should retain jurisdiction over custody of the children, and the parenting issues raised by these parties in the best interests of the children.

[98] I have already discussed the fact that the court will give deference to the decision by parties to arbitrate issues. This deference is, however, subject to the best interests of the children.

[99] An arbitration agreement is a domestic contract. As such, under s. 56(1) of the FLA, it is subject to the children’s best interests:

56. (1) In the determination of a matter respecting the education, moral training or custody of or access to a child, the court may disregard any provision of a domestic contract pertaining to the matter where, in the opinion of the court, to do so is in the best interests of the child.

[100] The fact that an agreement to arbitrate may be ignored by the court has been confirmed by a number of cases decided both before and after the 2007 amendments to the FLA and the Arbitration Act. The basis for the court intervening in the face of an agreement to arbitrate has been stated to be based upon the court’s parens patriae jurisdiction to intervene in the best interests of the children: see Wainwright v. Wainwright, supra at paragraph 166, Duguay v. Thompson-Duguay, supra at paragraphs 31 – 32, 36 and 41, Rosenburg v. Minster, supra at paragraphs 68, 69 and 77 and M.K. v. M.C. [2007] O.J. No. 3870 (S.C.J.) at paragraph 19 as well as s. 69 of the Children’s Law Reform Act.

[101] In this case, the parties have been locked in a struggle between themselves which appears to be unresolvable by themselves. Notwithstanding each parent’s protestations to the contrary, their conflict appears to be deep and entrenched. As confirmed by Dr. Cole, that conflict has affected the children to such a great extent that he felt it necessary to seek the assistance of JF&CS. And the workers at JF&CS verified risk of harm to the children by reason of parental conflict. Each parent blames the other for the situation in which they find themselves; without determine who is to blame, it is more than obvious that parental conflict is putting the children at risk.

[102] The Parenting Award confirms that the parties are first to mediate their dispute and then to arbitrate it. However, Mr. Kaplan has been attempting to press mediation on the parties without success. Again, Ms. Kaplan says that the applicant is not acting in good faith when he attempted this; she points out that just over a year after the Parenting Award, he presented to Dr. Fidler a list of 18 parenting issues to be dealt with which appeared to her to be insurmountable both as to process and as to affordability. And JF&CS attempted child protection mediation without success. I agree with the statement of Perkins J. in Duguay when he stated [at paragraph 36] that “mediation would provide another source of strife, the effects of which would be felt by the children.” That statement is equally applicable to this case; mediation has been unsuccessful and would add to the the already considerable stress suffered by the Kaplans’ children.

[103] Finally, I note as well that if this matter proceeds to arbitration, we lose the benefit of the children’s counsel, Ms. Bromley. She has made recommendations and has obtained a social work assist, and as noted above, her role is to protect and advocate for the children in this proceeding. According to the endorsement of McGee J. from the trial management conference held on October 20, 2014, Ms. Bromley’s efforts in attempting to settle the matter were “Herculean.” In fact, Mr. Kaplan seemed to want the Children's Lawyer to be involved in this proceeding; he claimed this in his application and he strongly advocated for the appointment of counsel in an earlier motion which was before this court. Ironically, he relies in his affidavits on statements made by Ms. Bromley regarding increased access to him by the children; I don’t see how he can rely upon conclusions arrived at by the Children's Lawyer and then throw that resource to the side by placing this matter in arbitration. With JF&CS bowing out, the only advocate for the children is Ms. Bromley and it would not be in the children’s best interests to lose that resource by proceeding with arbitration.

[104] Therefore, in my view, in light of the ongoing parental conflict between these parties, the mediation and arbitration process set out in the Parenting Award would not be in the best interests of these children. Even if the secondary arbitration clause permitted this matter to proceed to arbitration, I would not order it to proceed in that manner. This is especially so when we consider that we will lose the benefit of the Children's Lawyer should this matter proceed to arbitration.

Enforcement of the Secondary Arbitration Clause in the Support Agreement

[105] Considerations respecting the Support Agreement are distinct from those of the Parenting Award. There are no issues respecting best interests of the children. There is no issue in respect of the Arbitration Agreement, considering the fact that Support Agreement stands on its own as a domestic contract. There is no limitation in the secondary arbitration clause as to issues to be arbitrated, and the clause permits an arbitrator to be chosen other than Tom Bastedo. In short, the respondent’s arguments against arbitration noted above are largely inapplicable to the Support Agreement.

[106] I do not agree with counsel’s submissions that the respondent did not sign the Support Agreement voluntarily. She had a choice to sign; if she did not, she was aware that there would most probably have been an arbitral award in accordance with the ruling of Tom Bastido made on September 2, 2011. She did not appeal that award. Instead, she chose to sign and that agreement is now binding. The circumstances of the signing of the agreement have little or nothing to do with the enforceability of the secondary arbitration clause.

[107] I also do not agree that there is no remedy to force the parties to sign an arbitration agreement. There is a remedy to force parties into arbitration where they are bound to do so and that is to stay proceedings under s. 6 of the Arbitration Act. I also disagree that the secondary arbitration clause has to be in an agreement that complies with the regulations made under the Arbitration Act; the agreement that must comply with those regulations is the arbitration agreement to be entered into pursuant to the secondary arbitration clause.

[108] However, as raised in argument by respondent’s counsel, I believe that the applicant has attorned to the court by his conduct in this proceeding. In Lyon v. Lyon, supra, Belch J. decided to maintain jurisdiction notwithstanding an agreement to arbitrate because of the litigation history of the parties. He suggested that the parties had waived their rights to arbitrate by seeking relief through the court process. He noted that there had been significant legal fees and four years of litigation.

[109] That is similar to the present situation. Although the applicant did not make any support claims in his application and specifically objected in his reply to Ms. Kaplan bringing her support proceedings, he later entered into minutes in August of 2013, which settled on a final basis certain support issues including arrears and support insurance. Although paragraph 2.1 of the minutes states that the payment of arrears is “without prejudice to any position that the parties may take in the future and any defences to [the Support Agreement]”, the minutes also deal with other matters arising from the Support Agreement and this clause only applies to payment of arrears. The minutes do not specifically mention the secondary arbitration clause in the Support Agreement.

[110] As well, This litigation has been ongoing for nearly two years. Had this motion been argued soon after the respondent filed her answer, the situation might be different; it is concerning that Mr. Kaplan only now does so on the eve of trial, after entering into final minutes regarding certain support matters and considering that the respondent will by now have expended substantial resources in addressing support issues in these proceedings. The situation is similar to that of Lyon, and it appears to me that the negotiation of support issues through the court process as well as the delay in bringing this motion would have led the respondent to the obvious conclusion that the applicant was content in dealing with support through the courts. This in itself is sufficient for me to find a waiver of the right to arbitrate.

[111] Moreover, considering the fact that the custody issues are proceeding to trial, to move support issues into arbitration would create a multiplicity of proceedings. For obvious reasons, custody and time sharing of the children will affect the quantum of child and spousal support. To have two separate proceedings is not in anyone’s best interests, and is also contrary to Rule 2(3) which requires the court to deal with cases “justly” by, inter alia, “saving expense and time.” As the custody matter is proceeding to trial in any event, it is in the interests of justice that support issues also should be dealt with by the court rather than through a separate arbitration pursuant to the secondary arbitration clause in the Support Agreement.

[112] The applicant’s motion to stay the support proceedings is therefore dismissed.

Order of Vallee J. dated August 21, 2013

[113] Under this order, the respondent was given temporary sole decision-making authority in relation to health care issues concerning the children. This order resulted from Dr. Greig resigning as the children’s physician due to issues that she said she had with Mr. Kaplan. Vallee J. determined that it was “in the best interests of the children to be cared for by Dr. Greig.” She determined that, “to facilitate this” that “the mother shall have temporary sole decision making authority regarding medical treatment for the children.”[^38]

[114] Mr. Kaplan moves to set this order aside. He stated that Vallee J. did not listen to him or take notes during the motion. He says that Vallee J. believed everything the respondent had to say, and nothing that he said; he said that her endorsement basically copies the respondent’s materials.

[115] Whether or not Vallee J. was correct is not my province. I cannot sit in appeal of a decision of a justice of this court. I can only change Vallee J.’s order based upon a material change in circumstances or alternatively based on Rule 25(19) (mistake).

[116] The applicant did not mention this issue during his submissions.[^39] He provided no evidence of any change in circumstances since the Vallee J. order was made in August, 2013. In fact, since then, the Children's Lawyer has become involved and Ms. Bromley is recommending that Ms. Kaplan have full custody of the children. There is no change in circumstances since the order was made which would warrant the order being set aside.

[117] Rule 25(19) reads as follows:

(19) The court may, on motion, change an order that,

(a) was obtained by fraud;

(b) contains a mistake;

(c) needs to be changed to deal with a matter that was before the court but that it did not decide;

(d) was made without notice; or

(e) was made with notice, if an affected party was not present when the order was made because the notice was inadequate or the party was unable, for a reason satisfactory to the court, to be present.

[118] Under the rule, and in the circumstances of this case, the only possible basis for setting aside the order would be paragraph (b) (mistake). This has been interpreted to mean clerical slip or error; it does not include a judge’s mistake as to the law or facts which would be the province of an appeal. There is no evidence before me that the order contains a mistake.

[119] The applicant’s motion to set aside the order of Vallee J. is dismissed.

Settlement of Order

[120] The applicant requests an order according to Minutes of Settlement dated August 30, 2013. Related to this is the issue of dismissal of all claims against Fiona Broackes-Carter. These Minutes appear to have dealt with the issues of support arrears, a life insurance policy and the removal of a Certificate of Pending Litigation as well as withdrawal of the proceedings against Fiona Broackes-Carter.

[121] The Minutes can be found at a Tab FF of Volume II of the Trial Record. The respondent acknowledges signing the minutes and agrees that she is bound by them. She says that the applicant never provided an acceptable draft order in accordance with the Minutes. In fact, the draft order forwarded by Mr. Kaplan appears to contain a clause that the custody issues be submitted to mediation and arbitration, the major issue that was argued before me. There was nothing in the minutes concerning that issue and Ms. Kaplan appears to be correct that the applicant attempted to enter an order which was not warranted by the terms of those minutes.

[122] I am going to settle the order according to the intentions of both parties as reflected in the minutes and as set out in Ms. Kaplan’s affidavit. I am removing the recitals and releases as these should not be part of any court order. As the minutes were never filed on the continuing record, I am attaching them as a schedule to this endorsement.

[123] There shall be an order to go according to paragraphs 1.4, 1.5, 2.1, 2.2, 2.3, 2.4, 2.5, 2.6 and 2.7 of the Minutes of Settlement dated August 30, 2013 attached as a schedule to this endorsement, subject to the following:

(a) The words “agree that they” shall be removed from the first line of paragraph 1.5;

(b) Paragraph 2.1 shall be amended by removing the words “To deal with” from the first line of that paragraph, which words shall be replaced with “In full satisfaction of”.

(c) Paragraph 2.4(a) shall be amended to read:

The parties shall forthwith sign a Notice of Withdrawal from enforcement by the Director of the Family Responsibility Plan and shall jointly advise the Family Responsibility Office that all arrears of spousal and child support have been satisfied in full as of August 31, 2013.

(d) Subparagraph 2.4(b)(ii) shall be amended to read:

The proceedings against Fiona Broackes-Carter shall be dismissed without costs.

Motion for Disclosure

[124] The respondent has brought a motion for extensive disclosure. She requests a “complete list of all of [the applicant’s] physicians, psychiatrists, counsellors, therapists or other healthcare workers which he has been treated by, that he has consulted with, or that have been involved in his care since February 1, 2010 and the release of the (sic.) all such records pertaining to the Father, including but not limited to all clinical notes, records, medical reports, including but not limited to Dr. Jack Kohl and Dr. Donna Jacobs.”

[125] I agree with Mr. Kaplan that this was not a motion that was authorized by the trial management endorsement of McGee J. made on October 20, 2014. However, the disclosure motion was permitted by Douglas J. on November 27, 2014 and I am going to address it.

[126] The applicant’s mental health was not an issue raised in the respondent’s custody and access claims set out in her lengthy and extensive answer. That may be because Mr. Kaplan has only lately raised the issue of his post-traumatic stress disorder which I agree is a serious condition and, if it is made out, is a relevant consideration in dealing with custody of the children.

[127] That being said, the only evidence that Mr. Kaplan has post-traumatic stress disorder or other mental illness comes from Mr. Kaplan’s own self-diagnosis. According to Ms. Kaplan’s affidavit, Mr. Kaplan told her that he thought he would register on the autistic disorder spectrum, although not sufficiently for there to be a diagnosis. On several occasions, Mr. Kaplan told JF&CS workers that he had childhood trauma PTSD and he also stated that he had PTSD in posts on social media. I note that nowhere does Mr. Kaplan say that he has been diagnosed with these conditions; he only made a general assertion of his mental health.

[128] Contrary to this self-diagnosis, Mr. Kaplan has filed several letters from professionals who are actually treating him. Dr. Kohl writes on February 4, 2014, in answer to an inquiry from Ms. Bromley that Mr. Kaplan “has not suffered from any major mental disorder or impairment.” Mr. Kaplan’s psychologist, Donna Jacobs, again in response to correspondence from Ms. Bromley, said that it is her opinion that Mr. Kaplan “does not suffer from any mental illness.”[^40]

[129] I note that neither party, nor Ms. Bromley, states in the trial management conference endorsement that they are intent upon calling either Dr. Kohl or Donna Jacobs.

[130] Ms. Kaplan seeks an order for disclosure that is extensive in nature as well as being extremely intrusive. This is not an issue of privilege but one of overreaching. There has to be some relevance to the issues before the court, and until the eve of trial, the husband’s mental health was not raised by Ms. Kaplan as a parenting issue.

[131] This is not an issue such as that raised in Hughson v. MacDonald, [2009] O.J. No. 5089 (S.C.J.) where the “mother’s mental health is squarely raised in the application” and where there was a history of depression, suicidal ideation and criminal charges. Nor is this similar to Porter v. Porter, 2009 18686 (ON SC), [2009] O.J. No. 1638 (S.C.J.) where there were criminal charges and anger and emotional volatility issues, and where an assessment was ordered under s. 30 of the Children’s Law Reform Act. The respondent bases her claim for disclosure solely on the husband’s self-diagnosis of his mental health including posts on social media.

[132] The respondent has not put the applicant’s mental health into issue until now. It appears to me that the respondent is embarking on a fishing expedition and hopes to overturn a rock which would provide some ammunition in her coming battle. That is not the purpose of disclosure. There is insufficient evidence on the record to make out any sort of prima facie case of mental health issues to warrant the extensive and intrusive disclosure requested by the respondent.

[133] Finally, it appears that Ms. Bromley has canvassed concerns as to Mr. Kaplan’s parenting abilities with Mr. Kaplan’s caregivers in her investigation and as part of the social work assist for trial, and that is more than sufficient for trial purposes.

[134] The respondent’s motion for disclosure is dismissed.

Procedural Issues

[135] Mr. Kaplan failed to comply with the direction of Douglas J. which was to remove his motion and affidavits from the Trial Record and insert them in the Continuing Record.

[136] I am directing that Mr. Kaplan, as the applicant in this case, file a fresh trial record which complies with Rule 23(1). Specifically, it should only contain the documents listed in that rule and, as noted in the trial management conference endorsement, it should not be bound so that other necessary documents may be added by the respondent under Rule 23(2).

[137] This matter has been adjourned to the May, 2015 sittings. Considering this ruling, either party may schedule a further trial management conference through the trial coordinator in Newmarket. No further motions shall be brought without leave of the court.

Order

[138] There shall therefore be an order to go as follows:

a. Mr. Kaplan’s motion for arbitration of the custody and support issues is dismissed and those issues shall proceed to trial;

b. Mr. Kaplan’s motion to set aside the order of Vallee J. is dismissed.

c. There shall be an order to go according to the Minutes of Settlement attached and dated August 30, 2013 and subject to the amendments made by me above.

d. Ms. Kaplan’s disclosure motion is dismissed.

e. The applicant to file a proper trial record which complies with Rule 23(1).

f. Either party may schedule a further trial management conference through the trial coordinator in Newmarket.

[139] Costs of this motion, which is a pre-trial motion, shall be in the cause.

McDERMOT

Date: February 27, 2015

[^1]: R.S.O. 1990, c. F.3

[^2]: S.O. 1991, c. 17

[^3]: It is common ground that if the custody issues proceed to arbitration, the involvement of the Office of the Children’s Lawyer terminates as there will be no further court proceedings between the parties.

[^4]: Paragraph 5 of the Arbitration Agreement dated October 9, 2009 found at Tab 14G of Vol. II of the Trial Record (Affidavit of the applicant sworn November 2,2014)

[^5]: Ms. Kaplan asserts that this did not permit arbitration of custody, but only parenting issues: see the respondent’s affidavit sworn November 13, 2014 at paragraph 94.

[^6]: O. Reg. 134/07

[^7]: See the respondent’s affidavit sworn November 13, 2014 at paragraph 111

[^8]: See my analysis of the Arbitration Agreement below; in fact, the Arbitrator’s Certificate did not fully comply with the Family Arbitration Regulation noted above.

[^9]: Tab 11(1) of Vol. I of the Trial Record (Affidavit of applicant sworn June 18, 2013)

[^10]: See paragraphs 99 to 104 of that agreement.

[^11]: See s. 55(1) of the Family Law Act.

[^12]: See the correspondence from JF&CS dated April 8, 2014 found at Exhibit A to the affidavit of the respondent sworn November 13, 2014

[^13]: Ibid., paragraph 65

[^14]: See paragraphs 11 and 26 to 30 of the applicant’s affidavit sworn November 3, 2014.

[^15]: See correspondence from Dr. Greig dated July 9, 2013 at Tab 14BB of Volume II of the Trial Record.

[^16]: See correspondence from Dr.Greig dated April 16,2013 at Tab 14BB of Volume II of the Trial Record.

[^17]: Endorsement of Vallee J. issued August 21, 2013.

[^18]: See correspondence from applicant dated September 8, 2011 filed as Exhibit N to the affidavit of the respondent sworn November 19, 2014. Surprisingly, this correspondence was sent eight days after Mr. Bastedo had agreed with Mr. Kaplan and agreed that there he had accepted Ms. Kaplan’s offer, thereby creating a binding support agreement.

[^19]: See correspondence from Tom Bastedo dated November 25, 2011 filed as Exhibit O to the affidavit of the respondent sworn November 19, 2014.

[^20]: See email from applicant to Dr.Fidler dated January 16, 2012 filed as Exhibit P to the affidavit of the respondent sworn November 19, 2014.

[^21]: The Minutes can be found at Tab 14FF of Volume II of the Trial Record. They are undated and no original has been filed on either the Continuing Record, nor the Endorsement Volume. That being said, Ms. Kaplan does not deny that they are binding but objects to additional clauses added to the consent order: see paragraphs 192 to 195 of the respondent’s affidavit sworn November 19, 2014.

[^22]: O. Reg. 144/99

[^23]: Applicant’s notice of motion, paragraph 8.

[^24]: Trial Record, Vol. I, Tab 11(5)

[^25]: Page 8 of attached correspondence

[^26]: R.S.C. 1985, c. 3 (2^nd Supp.)

[^27]: See Miglin v.Miglin, 2003 SCC 24, [2003] S.C.J. No.21

[^28]: R.S.O. 1990, c. C.12: see s. 29 which also requires an order for there to be a motion to change based upon a material change in circumstances. Unlike a support agreement, there is no ability in Ontario to file a parenting agreement for enforcement which would allow a motion to change that agreement based upon a material change in circumstances.

[^29]: Respondent’s affidavit sworn November 13, 2014 at paragraph 105.

[^30]: Ibid., paragraph 111.

[^31]: See the correspondence from Dr. J. Kohl dated February 4, 2014 at Tab 14LL and Donna Jacobs dated February 10, 2014 at Tab 14OO of Volume II of the Applicant’s Trial Record.

[^32]: I note that the statement of the arbitrator did not contain confirmation that the arbitrator had received the proper training as approved by the Attorney General as required under the regulation for any arbitration agreement signed after April 30, 2008; this agreement was made in 2009. The Arbitration Agreement is therefore missing one essential element required by the regulation and this may have been an oversight as, prior to April 30, 2008, the provision confirming Mr. Bastedo’s training would not have been required in the Arbitrator’s Certificate. However, a strict reading of s. 59.6 of the Family Law Act confirms that this omission would make any award arising out of this agreement unenforceable as the Arbitration Agreement must comply “with any regulations made under the Arbitration Act, 1991.” This issue was not raised during argument and I, therefore, specifically do not rely upon it in my analysis of the enforceability of the Custody Award. In fact, I need not do so in view of my determination as to the enforceability of the secondary arbitration clause contained in the Custody Award below.

[^33]: Respondent’s Answer and Claim by Respondent at p. 14, paragraph 5

[^34]: Ibid. at p. 19, paragraph 37

[^35]: Ibid. at p. 21, paragraph 44

[^36]: Applicant’s Reply at p. 19

[^37]: Ibid. at p. 22

[^38]: Op cit., footnote 17

[^39]: The applicant may have only requested this order because he was seeking summary judgment for dismissal of the the respondent’s claim for custody as noted above and he concluded that, if summary judgment was granted and the respondent’s custody claims dismissed, the order of Vallee J. would also fall. However, I felt that I should specifically address the request to set aside the order as the applicant’s intentions were not clear from either the motion or the applicant’s materials filed in support.

[^40]: Op. Cit, Footnote 31