Court File and Parties
CITATION: McFarland v. McFarland, 2015 ONSC 2355
COURT FILE NO.: 607/13
DATE: 20150410
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Wendy Elizabeth McFarland, Applicant
AND
Cameron James McFarland, Respondent
BEFORE: Mr. Justice Timothy Minnema
COUNSEL: Mark S. LaFrance, for the Applicant
Hilary F.E. Warder, for the Respondent
HEARD: April 9, 2015 (In Chambers)
ENDORSEMENT
Issue
[1] Minutes of Settlement have been put before me by the parties seeking a Consent Order. The issue is whether the proposed terms for "secondary arbitration" are approved.
Law
[2] Without having the benefit of submissions from counsel, I note the following. Part IV of the Family Law Act, R.S.O. 1990, c. F.3, ("FLA") deals with arbitration. The definition of 'secondary arbitration' in s. 59.7 is "family arbitration that is conducted in accordance with a separation agreement, court order or family arbitration award that provides for the arbitration of possible future disputes relating to the ongoing management or implementation of the agreement, order or award". It is clear that arbitration terms can be put into an order, by agreement, to support that same order.
[3] What must be included in an 'agreement' or 'award' is governed by the FLA and by the Arbitrations Act, 1991 (see section 59.1 of the former). There is no guidance about terms to be included in an 'order'.
[4] For a 'secondary arbitration agreement' there are mandatory standard provisions set out in s. 2(2) of the Arbitration Act's Family Arbitration regulation, O.Reg. 134/07. These require (1) a statement of which provincial law applies, (2) a statement of the appeal process, (3) the name of the arbitrator, and (4) the signature of the arbitrator whereby he or she undertakes to treat the parties fairly and equally, confirms having screened the parties for power imbalances, and confirms having taken the required training.
Order being Requested
[5] First, I note that the Minutes of Settlement are well drafted and appropriate, as one would expect from experienced counsel; kudos to them for helping the parties resolve the matter. It is only the terms related to the process for arbitration that require a closer look.
[6] The Minutes of Settlement indicate that if there are disputes about the implementation of the terms of the resulting order the parties "shall" engage in secondary arbitration. As it is on consent, I would make that order. However, in my view the specific terms should not undercut what would otherwise be required in an agreement under the legislation.
[7] The questions I have are as follows:
The Schedule to the Minutes of Settlement refers only to "parenting coordination" and the "parenting coordinator". The legislation refers to "arbitration" and an "arbitrator." Do those terms have the exact same meaning?
As the proposal is to defer the choice of the arbitrator or parenting coordinator, how can the court know that the person who ultimately takes on that role will have the required training?
If the Minutes of Settlement were a 'secondary arbitration agreement' pursuant to the legislation, then certain assurances from the actual arbitrator would be required as touched on in paragraph 4 above. Is it appropriate to allow an order to issue without those confirmations?
There is a process proposed in the Minutes of Settlement for determining how the parenting coordinator is to be chosen: "Failing agreement as to the Parenting Coordinator, each shall designate a person who is a Parenting Coordinator, and those Parenting Coordinators shall chose as between themselves, the Parenting Coordinator." Should that choice be delegated? What is the process for breaking a tie?
The Minutes of Settlement indicate: "The parties shall execute an Agreement in the form and manner acceptable to the Parenting Coordinator, and which shall conform with the provisions of the Arbitration Act and the Family Law Act, and the regulations thereunder." Can the court order parties to agree? Can the court order the parties to sign a document dictated by a third person before they have seen it?
The Minutes of Settlement state that the involvement of the parenting coordinator will be "subject to" the parties being screened regarding domestic violence and power imbalances and that if the parenting coordinator determines, as a result of the screening, that the arbitration process is not suitable for these parties, then the issue of the process is to be put to the court for determination. What is the purpose of remitting that issue to the court?
Disposition
[8] I appreciate and support what counsel are seeking to accomplish. However, before I grant the consent order, I would ask them to assist me by answering the above questions. How they do it is their choice. They can redraft and resubmit their Minutes. They can arrange a date with the Trial Coordinator for an appearance. They can provide joint written submissions, or even submit a factum if they wish, in which case I am prepared to revisit the matter in chambers.
Mr. Justice Timothy Minnema
Date: April 10, 2015
CITATION: McFarland v. McFarland, 2015 ONSC 2355
COURT FILE NO.: 607/13
DATE: 20150410
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Wendy Elizabeth McFarland
Applicant
- and -
Cameron James McFarland
Respondent
BEFORE: Mr. Justice Timothy Minnema
COUNSEL: Mark S. LaFrance, for the Applicant
Hilary F.E. Warder, for the Respondent
ENDORSEMENT
Mr. Justice Timothy Minnema
Released: April 10, 2015