ONTARIO

SUPERIOR COURT OF JUSTICE

Court File No.: FS-15-0043-0000
Date: 20150609

B E T W E E N:

EILEEN NELSON

Appearing on her own behalf

Appellant

• and -

DAVID NELSON

Appearing on his own behalf

Respondent

Heard: June 8, 2015.

ENDORSEMENT

COROZA J.:

[1] The parties were married on July 10, 1993. They were divorced on July 20, 2009.

[2] On November 15, 2005 they entered into a separation agreement. Pursuant to the terms of the separation agreement Mr. Nelson was required to pay child support in the amount of $500.00 per month.

[3] Eventually, there was a dispute between the parties about arrears on child support and section 7 expenses for the children. This dispute proceeded in the Ontario Court of Justice. However, with the consent of all the parties the matter was stayed on October 8, 2013.

[4] The parties attempted to resolve their differences and they entered into a mediation/arbitration agreement on July 8, 2014. Mediation was unsuccessful and the parties agreed to a summary award to be determined by an arbitrator. The arbitrator delivered written reasons for his award on November 28, 2014. Mr. Nelson was successful and his counsel sent the award to the Family Responsibility Office (FRO) for enforcement. FRO took the position that the arbitration award had to be converted into a court order before they could enforce it.

[5] On January 9, 2015 counsel for Mr. Nelson filed a motion in the Ontario Court of Justice seeking a final order in accordance with the terms of the arbitration award. Notice was provided to Ms. Nelson. Bovard J. granted the order on January 22, 2015, after noting that the motion was made with notice to all persons affected and that “opposition was not expected”. In his endorsement, Bovard J. noted that although the motion was filed on January 9, 2015 the court administration staff held on to the motion until January 14, 2015 to see if there would be opposition and in the absence of any response, he lifted the stay of proceedings in that court and he granted the relief sought. The end result is that Bovard J. imposed the terms of the award made by the arbitrator.

[6] Ms. Nelson appeals.

[7] As a preliminary matter, Mr. Nelson argues that Ms. Nelson has filed this appeal out of time and the appeal should be dismissed summarily because of non-compliance with the Arbitration Act, 1991, S.O. 1991, c. 17. Section 47 of that Act states that an appeal of an award shall be commenced within thirty days after the appellant receives notice of the award. Mr. Nelson argues that the award was handed down on November 28, 2014 and Ms. Nelson’s appeal was only launched in February of 2015 well beyond the limitation period for filing appeals under the Act.

[8] Ms. Nelson argues that the appeal is an appeal of Bovard J.’s order. Under the Family Law Rules, to start an appeal of a final order of the Ontario Court of Justice to the Superior Court the appellant must serve a notice of appeal within 30 days of that order and then file the notice of appeal within 10 days of having served it. The Notice of Appeal in this case was served and filed on February 24, 2015, well within the time limitation imposed by the Family Law Rules.

[9] I need not decide the time limitation issue because assuming without deciding that Ms. Nelson’s appeal is not barred by a missed time limit, I would dismiss the appeal after considering the merits of the appeal. Moreover, there was no prejudice to Mr. Nelson to allow the appeal to move forward. Mr. Nelson filed materials and he was prepared to argue the appeal. Both parties were brief in their submission. It is in the interests of all the parties that I consider the appeal so they can move forward with their lives.

[10] Turning to the merits of the appeal, I would dismiss the appeal for the following reasons.

[11] First, I am not persuaded by Ms. Nelson’s primary submission that the arbitrator did not read her documentation or written submissions. Ms. Nelson was represented by legal counsel who filed written submissions to the arbitrator on her behalf. There is nothing to suggest in the reasons for the award that the arbitrator did not do what all arbitrators do when preparing written reasons for an award after hearing both parties, namely reviewing the written submissions of the parties. Moreover, Ms. Nelson’s submission on this issue is factually inaccurate. The arbitrator did refer explicitly in his reasons that he was “taking into account the information that [he] had” and he explicitly made a finding that Ms. Nelson’s evidence was less reliable that Mr. Nelson’s.

[12] Second, arbitrators are given a high standard of deference by courts. Generally the court should not interfere with an arbitrator's award unless it is satisfied that the arbitrator acted on the basis of a wrong principle, disregarded material evidence or misapprehended the evidence (see: Robinson v. Robinson, [2000] O.J. No. 3299 (S.C.J.), at para. 5.). After reviewing the material filed by Ms. Nelson on this appeal I am not persuaded that the arbitrator did any of these things.

[13] I do note that the material filed by Ms. Nelson in support of this appeal is missing an important document; the “Agreement to Arbitrate” dated July 8, 2014. The absence of this document makes it very difficult for me to assess whether the parties agreed to broad or narrow rights of appeal from the award of the arbitrator. There has been no explanation as to why this document has not been provided to the Court. During oral argument, Ms. Nelson stated that she recalled signing some papers but did not have this agreement. Indeed, the Family Law Rules require that the family arbitration agreement be provided as part of the Appellant’s materials (see: Family Law Rules, Rule 38(48)(b)). The Arbitration Act, significantly limits the appeals of arbitration awards, but it does permit the parties to contract out of this limitation by specifically agreeing to more wide-ranging appeal rights. I do not know what the parties agreed to in this arbitration.

[14] In any event, I have proceeded on the assumption that the agreement to arbitrate provided for broad appeal rights and that her appeal allowed for an appeal on a question of law, a question of fact or a question of mixed law and fact. In my view, the appeal fails because Ms. Nelson has not demonstrated that the arbitrator made any legal error or any palpable and overriding error in his fact finding in delivering his award. I have read her factum. I would characterize this appeal as an attempt to re-litigate the issues that were before the arbitrator. The Court of Appeal has held that finality is particularly important in family law cases and the benefits of a final resolution – imperfect as it may be - to the parties cannot be overstated (see: Patton-Casse v. Casse, 2012 ONCA 709). I see no valid reason to disturb the award.

[15] In conclusion, assuming without deciding that Ms. Nelson’s appeal is not barred by a time limitation, I would dismiss the appeal. I am not persuaded by Ms. Nelson’s submissions that the arbitrator made any of the errors set out in her notice of appeal. Accordingly, I decline to set aside the order of Bovard J.

[16] Mr. Nelson has been successful in responding to this appeal. If he wishes to claim costs of the appeal I will consider his submissions. Mr. Nelson must serve and file written submissions no longer than two pages in length within 15 days, with Ms. Nelson serving and filing her submissions (no longer than two pages) in response seven days thereafter.

Coroza J.

Released: June 9, 2015

COURT FILE NO.: FS-15-0043-0000

DATE: 20140609

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Eileen Nelson v. David Nelson

BEFORE: Coroza, J

COUNSEL: Eileen Nelson, in Person

David Nelson, in Person

ENDORSEMENT

Coroza, J

DATE: June 9, 2015