ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-15-20314
DATE: 20150918
B E T W E E N:
GEORGINA JUNG
Hugh R. Scher, for the Appellant
Appellant
- and -
RICHARD JUNG
Garry J. Wise, for the Respondent
Respondent
HEARD at Toronto: August 13, 2015
JUDGMENT
D.L. Corbett J.:
[1] Ms Jung appeals the arbitral award of Philip M. Epstein, QC LSM, terminating the parties’ education fund and returning the fund balance to the parties (about $44,000).[^1]
[2] Mr Epstein has been the parties’ arbitrator for almost a decade. He deferred termination of the education fund in April 2013 to see if either of the parties’ children would return to school on a full-time basis as adults. They did not do so by September 2014. In December 2014, the arbitrator decided that the fund should be terminated. In so deciding, the arbitrator did not foreclose a future support claim if one of the parties’ children returned to school and qualified as a “child of the marriage” within the meaning of the Divorce Act.
[3] In sum, the impugned award terminates security for future education expenses, but does not preclude a claim for those expenses if a basis for it arises in future.
[4] Ms Jung raises three general grounds of appeal:
(i) the process was unfair and did not follow the procedural requirements of the parties’ arbitration agreement;
(ii) the arbitrator erred in finding that the parties youngest child was not a “child of the marriage” by reason of disability; and
(iii) the arbitrator erred by failing to apply constitutional and human rights norms requiring accommodation of disability in circumstances where it was clear that those principles were engaged.
[5] In the alternative, Ms Jung argues that the cumulative effect of fresh evidence she seeks to file on this appeal establishes that (a) the parties youngest child is a “child of the marriage” by reason of disability; and (b) this child plans to return to post-secondary education in the fall of 2015. These facts were not known at the time of the impugned award and are material to it. Ms Jung asks this court either to (a) reverse the arbitrator in light of this fresh evidence, or (b) remit the issue back to the arbitrator for his decision in light of the fresh evidence.
Summary and Disposition
[6] The award was made on the arbitrator’s assessment of the facts as they existed at the time and the long history of the case. The arbitrator considered the proper factors and stated the law correctly. The arbitrator concluded that Ms Jung had not established that the parties’ youngest child was entitled to money from the education fund as of the fall of 2014. This finding is entitled to deference and is reasonable.
[7] The parties’ youngest child has had a less-than-smooth education and work history, and this history may well be attributable, at least in part, to longstanding medical causes. These factors might well lead parents to support to an adult child in dealing with his problems. However, it is one thing for parents to choose to provide support and another for the law to impose an obligation upon them to do so. In the circumstances of this case, I see no error in the arbitrator’s conclusion that the parties’ youngest child had long been outside the category of a “child of the marriage” by reason of his personal independence, and that the appellant had not established that the child had again become a “child of the marriage”. And I see no error in the arbitrator’s conclusion that the question of whether this child might again become a “child of the marriage” could be revisited in future should circumstances warrant.
[8] I see nothing unfair in the process that was followed: it was consistent with past practice and prior arbitral decisions in this case and was proportional to the issue in dispute.
[9] The fresh evidence is not admissible. The evidence of the expert treating specialist was available to the arbitrator. Although there is no record of the telephone conversation between the expert and the arbitrator, it was open to the appellant to adduce evidence from the expert as to what he told the arbitrator. There is nothing in the record to show that there is anything materially different in the arbitrator’s February affidavit. The evidence of the evolution of the adult child’s plans (his application to university and acceptance into a part-time course of study) shows some change in circumstances since the arbitrator’s decision, but not one that should lead the court to revisit what the arbitrator did in December 2014. The arbitrator expressly left it open to the appellant to pursue support should circumstances so warrant. This new evidence could form part of a record in support of such a motion, though, by itself, it falls short of meeting the test to prove that the adult child is a “child of the marriage” again.
[10] Accordingly the appeal is dismissed, with costs.
Jurisdiction and Standard of Review
[11] The parties’ arbitration agreement provides a full right of appeal from any arbitral award.
[12] The parties agree that the arbitrator’s award is reviewable on a standard of correctness on questions of law and a standard of deference on questions of fact. Procedurally, the standard of review is fairness.
Issue #1 - Procedural Requirements
[13] The arbitration agreement provides that matters shall be dealt with by “hearing” at which evidence is called and a record kept. That was not done in respect to the impugned award.
[14] However, the impugned award is part of a long process before this arbitrator, and the procedural requirements in the arbitration agreement do not preclude the arbitrator adopting appropriate proportional procedures that vary depending on the issues before him. In an early award the arbitrator determined that he would decide questions related to the education fund “summarily” and he followed this course throughout the history of the case.
[15] The arbitrator had previously decided that the education fund would be terminated if neither of the children had returned to full-time school attendance by the fall of 2014. This decision was not appealed.
[16] In the fall of 2014, neither child had returned to school. On the basis of the arbitrator’s prior decision, then, the education fund would be terminated. However, Ms Jung took the position that circumstance warranted maintaining the education fund: her youngest son was receiving treatment for his medical condition and intended to return to university. Further, Ms Jung took the position that the treatment pursued by her youngest son, itself, qualified as post-secondary education to be funded from the education fund.
[17] The arbitrator determined that he would deal with this issue summarily, the manner in which he had dealt with such issues in the past. He indicated that he would consider more than whether the youngest child had yet returned to school: he noted that the onus lay on Ms Jung to establish that her youngest son was once again a “child of the marriage” for support purposes. That, then, was the analysis the arbitrator brought to bear in establishing the parameters of the issue before him: the question was not whether there was some prospect that the youngest son might return to school at some time in the future, but whether he was a “child of the marriage” for the purposes of support at the that time. Implicit in this structure is a conclusion (a) that the youngest child appeared to have been independent for several years and had not brought himself back within the definition of “child of the marriage” by returning to school full-time; and (b) if there was some other basis for arguing that the youngest son remained a “child of the marriage” such that the education fund should be maintained against the possibility that he might return to school, the onus would lie on Ms Jung to establish the facts for such a conclusion.
[18] The arbitrator indicated that he would receive evidence by way of affidavit.
[19] One impediment to assembling a full record arose from the nature of the issues and the youngest son’s desire for privacy. Ms Jung did not wish to file detailed medical records which would then be available for Mr Jung’s perusal. She was content for her son’s specialist physician to speak directly with the arbitrator, but she did not file this physician’s affidavit or make the substance of his evidence available for cross-examination. The arbitrator did speak with the doctor, but did not reference the information provided by the doctor in his decision. Ms Jung challenges this process as essentially unfair: there is no record of what the doctor said to the arbitrator and no findings in respect to that evidence.
[20] Obviously these processes are not consistent with the procedural requirements in a court proceeding: a judge would not speak privately with a witness, in the absence of the parties and without a court reporter and then take that information into account. But just because this process is not acceptable in a court proceeding does not make it unacceptable in an arbitration. An arbitrator’s discretion is not unfettered, and there would be many situations where such an approach would not be acceptable. Here, however, I conclude that this approach was within the discretion of the arbitrator and may well have been the best way in which to proceed. Certainly it is not so unfair as to warrant reversal of the decision below.
“Child of the Marriage”
[21] The arbitrator was not being asked to decide whether the youngest son suffers from a disability, or whether that disability would render the son a “child of the marriage” unable to withdraw from parental control. The arbitrator was called upon to decide whether the education fund should be preserved against the possibility that the youngest son might return to school and be a child of the marriage if he did so. The arbitrator was satisfied that there should be no automatic entitlement to support from the education fund, and thus that the question of whether the youngest son was a child of the marriage would have to be litigated in the usual way should it arise in future.
[22] This point is fundamental to the arbitrator’s decision. The child in question is 28 years old. He has a university education. He has three years’ full-time work experience as a technology professional. He has lived away from home, and for a time in another city. He is diagnosed with autism spectrum disorder, a diagnosis that presents across a broad spectrum of practical functionality. On the basis of this diagnosis he has been advised that he would benefit from training courses geared to the effects of his condition, and a return to school for retraining on a part-time basis. If this evidence is all accepted, the training and further educational courses would benefit this adult child. But all of this, combined, does not make this child a “child of the marriage”, and the expert evidence from the child’s expert physician to the contrary is conclusory and untested by cross-examination. The child himself is reluctant to provide his personal information, and has not provided an affidavit setting out his goals, plans, means, and other evidence relevant to the question of whether the is now a “child of the marriage” within the meaning of the Divorce Act.
[23] The arbitrator correctly noted that the onus lies upon Ms Jung to establish that her youngest son is a “child of the marriage” by reason of disability. The arbitrator’s conclusion that Ms Jung had not met this burden is unassailable, and is not affected by the substance of whatever the doctor may have told the arbitrator in their unrecorded telephone conversation.
[24] It would have been open the arbitrator to conclude that the status of the youngest child was unclear and to direct a more formal hearing on this issue. He decided against this based on the history of the case: the diagnosis was not new, and a return to school remained no more than an aspiration. In these circumstances it was reasonable for the arbitrator to conclude that the education fund should be terminated, and any future request for support should be determined on the usual principles that apply where support is sought for an adult child who has ceased for a time to be a child of the marriage.
Constitutional and Human Rights Norms
[25] I assume, without finding, that the arbitrator was required to interpret the applicable law in accordance with constitutional and human rights norms, including the principles that underlie the constitutional guarantee of equality in the Charter. I see no departure from those principles in the arbitrator`s decision. Indeed, I see the decision as being based upon those principles.
[26] The decision does not discriminate against the parties youngest son on the basis of his disability. Rather, it recognizes that this disability may be the basis of a claim to support. That claim is not foreclosed by the decision. However, that claim, if it is pursued, must be pursued in the usual way, on evidence, and satisfy the test provided in the [Divorce Act](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-3-2nd-supp/latest/rsc-1985-c-3-2nd-supp.html) as to whether the parties youngest child is again a child of the marriage.
[27] The education fund, when it was established, was intended to fund post-secondary education for the parties’ children on the basis of the usual progression from high school to post-secondary schooling. This progress is not always smooth and uninterrupted. However, the fund’s purpose, on its face, did not extend parental responsibilities to pay for an adult childs education, no matter when it was obtained, and no matter what the financial circumstances of the child at the time. The arbitrator concluded, in effect, that the parents’ responsibilities under the education fund had concluded, without prejudice to the question of whether the parties might have further obligations arising because of a childs disability.
[28] It is not a violation of human rights norms to require a party to prove entitlement on the basis of disability and need.
Order and Costs
[29] The appeal is dismissed, with partial indemnity costs payable within thirty days by the appellant to the respondent fixed at $8,000 inclusive. Counsel presented the appeal with great ability on both sides, for which I am grateful.
D.L. Corbett J.
Released: 20150918
COURT FILE NO.: FS-15-20314
DATE: 20150918
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
GEORGINA JUNG
Appellant
- and –
RICHARD JUNG
Respondent
JUDGMENT
D.L. Corbett J.
Released: 20150918
[^1]: All or most of the fund is to be returned to Mr Jung, although there was some issue about whether Ms Jung might be entitled to 5% of the balance; that issue was not before this court on the appeal.