Horowitz v. Nightingale
Ontario Reports Ontario Superior Court of Justice, C.S. Nelson J. April 6, 2017
138 O.R. (3d) 10 | 2017 ONSC 2168
Case Summary
Family law — Arbitration — Arbitration agreement — Parties entering into minutes of settlement which resolved issues of custody, access and property — Minutes of settlement providing that parties agreed to submit child and spousal support issues to arbitration — Minutes not containing mandatory formal requirements set out in Regulation under Arbitration Act — Minutes not constituting valid arbitration agreement — Arbitration Act, 1991, S.O. 1991, c. 17 — O. Reg. 134/07, s. 2.
The applicant brought an application for custody, access, child and spousal support and equalization of net family property. The parties entered into minutes of settlement resolving the issues of custody, access and property. The minutes of settlement provided that the parties agreed to submit to arbitration the issues of child and spousal support, life insurance and medical and dental benefits and costs. A draft arbitration agreement was prepared and was signed by the respondent. The applicant did not sign it. The respondent brought a motion for an order staying the application on the ground that the parties had entered into an arbitration agreement.
Held, the motion should be dismissed.
The minutes of settlement did not contain the mandatory formal requirements set out in s. 2 of O. Reg. 134/07 under the Arbitration Act, 1991. The parties clearly indicated by their conduct after signing the minutes of settlement that they knew that a secondary agreement was a condition precedent to the arbitration. The minutes of settlement did not qualify as an arbitration agreement.
M. v. F., [2015] O.J. No. 2048, 2015 ONCA 277, 58 R.F.L. (7th) 1, 253 A.C.W.S. (3d) 134; Marchese v. Marchese, [2007] O.J. No. 191, 2007 ONCA 34, 219 O.A.C. 257, 35 R.F.L. (6th) 291, 154 A.C.W.S. (3d) 275; [page11] M.J.B. Enterprises Ltd. v. Defence Construction (1951) Ltd., , [1999] 1 S.C.R. 619, [1999] S.C.J. No. 17, 170 D.L.R. (4th) 577, 237 N.R. 334, [1999] 7 W.W.R. 681, J.E. 99-859, 69 Alta. L.R. (3d) 341, 232 A.R. 360, 49 B.L.R. (2d) 1, 44 C.L.R. (2d) 163, 3 M.P.L.R. (3d) 165, REJB 1999-11937, 87 A.C.W.S. (3d) 681; Parker v. Pal, [2014] O.J. No. 6338, 2014 ONSC 7035, 55 R.F.L. (7th) 91, 249 A.C.W.S. (3d) 120 (S.C.J.); Thomson v. Thomson, [2012] O.J. No. 1177, 2012 ONCJ 141, 18 R.F.L. (7th) 483, 212 A.C.W.S. (3d) 9; Winfair Holdings (Lagoon City) Ltd. v. Simcoe Condominium Corp. No. 46, [1997] O.J. No. 3495, 39 O.T.C. 110, 73 A.C.W.S. (3d) 541 (Gen. Div.), distd
McFarland v. McFarland, [2015] O.J. No. 1790, 2015 ONSC 2355 (S.C.J.), consd
Other cases referred to
C.P. Hotels Ltd. v. Bank of Montreal, , [1987] 1 S.C.R. 711, [1987] S.C.J. No. 29, 40 D.L.R. (4th) 385, 77 N.R. 161, 21 O.A.C. 321, 41 C.C.L.T. 1, 4 A.C.W.S. (3d) 299; Haas v. Gunasekaram, [2016] O.J. No. 5286, 2016 ONCA 744, 62 B.L.R. (5th) 1, 272 A.C.W.S. (3d) 21
Statutes referred to
Arbitration Act, 1991, S.O. 1991, c. 17, ss. 1 [as am.], 5(1), 7(1), (2), (2)4 Family Law Act, R.S.O. 1990, c. F.3
Rules and regulations referred to
Family Arbitration, O. Reg. 134/07
MOTION for an order staying a family law proceeding.
Dani Z. Frodis, for applicant. Lorne H. Wolfson, for respondent.
C.S. NELSON J.: —
Introduction
[1] The respondent, Mr. Nightingale, moves for an order staying the family law proceeding between him and his spouse, the applicant, Ms. Horowitz.
[2] The respondent moves for the stay on the ground that minutes of settlement between the parties, dated May 10, 2016, obligate the parties to arbitrate the issues in dispute before Mr. Stephen Grant.
Issue
[3] Do the minutes of settlement comprise an arbitration agreement?
Background
[4] The parties were married for 16 years prior to their separation. They have three children. The applicant, Ms. Horowitz, [page12] initiated an application for custody, access, child and spousal support and equalization of net family property.
[5] After a four-way meeting on May 10, 2016, the parties entered into minutes of settlement resolving the issues of custody, access and property. The minutes of settlement read, in part, as follows:
Paragraph 6
The parties agree that as a result of these Minutes, the issues between them that remain outstanding are as follows:
a. Prospective child and spousal support;
b. Retroactive child and spousal support (Murray claims that he has overpaid and seeks reimbursement; Leslie claims that Murray has underpaid and seeks a retroactive payment);
c. Life insurance and medical and dental benefits; and
d. Costs.
Paragraph 7
The parties agree to submit the issues outlined in paragraph 6 . . . to Arbitration with Stephen Grant on four of the following dates (subject to confirmation from Mr. Grant's office and the parties regarding the appropriate amount of time for the hearing): July 27, 28, 29, August 2, 3, 15, 16 and 18. Provided that the arbitration proceeds, Murray will not proceed with a motion to reduce the support and will withdraw his current motion re same without costs. The Settlement Conference date will be vacated.
[6] Both parties were represented by senior family law lawyers at the May 10, 2016 meeting.
[7] On June 30, 2016, the applicant, who was by then self-represented, and the respondent's counsel (the record does not make it clear whether the respondent himself was in attendance) attended before Justice McGee to speak to the matter. Justice McGee endorsed the record as follows:
Parties entered into Minutes of Settlement on May 10, 2016. OTG per Minutes filed. Mr. Wolfson to prepare draft order.
A motion is scheduled for August 17, 2016. At that time, if the parties have not entered into an Agreement to Arbitrate, the next date can be set to move this matter to an early trial.
Mr. Nightingale has agreed to complete his Questioning, prior to an Arbitration proceeding.
Aug 17, 2016 Motion
The respondent will serve his Motion Record by July 22, 2016. Response due by August 8th, reply by noon on August 15. [page13]
Settlement Conference
To proceed Oct 6, 2016 at 9:30. Full Briefs, Offer to Settle and draft Trial Scheduling Endorsements to be filed, so matter can then be placed on the Trial List for November.
Submissions -- Respondent
Legislative provisions
[8] The respondent submits that the parties entered into a binding and subsisting arbitration agreement. As a result, the respondent argues that the court application brought by the applicant must be stayed pursuant to s. 7(1) of the Arbitration Act, 1991, S.O. 1991, c. 17, which reads as follows:
Stay
7(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.
[9] The respondent argues that the minutes of settlement are an arbitration agreement under the Arbitration Act. He relies on s. 1 of the Arbitration Act, which defines "arbitration agreement" as
. . . an agreement by which two or more persons agree to submit to arbitration a dispute that has arisen or may arise between them;
and "family arbitration" as
. . . 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.
[10] The respondent also relies upon s. 5(1) of the Arbitration Act, which sets out the provision that an arbitration agreement may be an independent agreement or part of another agreement.
[11] The respondent points out that the minutes of settlement dispose of the equalization and all property issues between the parties. In addition, the minutes of settlement dispose of the parenting issues through the appointment of a parenting coordinator.
[12] In dealing with life insurance, the minutes of settlement put in place a plan "pending the arbitration". In fact, that very phrase is used twice. It is used again in para. 7 (but somewhat [page14] differently) by the use of the phrase "provided that the arbitration proceeds".
Stand-alone agreement
[13] The respondent submits that paras. 6 and 7 of the minutes of settlement constitute an arbitration agreement within the meaning of ss. 1 and 5(1) of the Arbitration Act. This, he submits, is a stand-alone agreement which is included in a larger agreement (the entire minutes of settlement).
[14] The respondent also takes the position that all of the usual formalities required in an arbitration agreement need not be strictly observed.
Regulation 134/07
[15] Family Arbitration, O. Reg. 134/07 made under the Arbitration Act reads as follows:
Standard Provisions
2(3) Every family arbitration agreement made on or after September 1, 2007, other than a mediation-arbitration agreement or a secondary arbitration agreement, shall contain,
(a) . . .
(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 iv of subsection (4).
(4) The following are the provisions referred to in subsections (1), (2) and (3):
- 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.
- 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. [page15]
The arbitrator for this arbitration is ......................... (name of arbitrator).
(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.
àààààààààààààààà..àààà.
(Signature of party)
- 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. . . .
iv. The parties were separately screened for power imbalances and domestic violence by someone other than me and I have considered his or her report on the results of the screening and will do so throughout the arbitration.
àààààààààààààààà..àààà.
(Signature of arbitrator)
Further facts and implied terms
[16] While the respondent acknowledges that the regulatory requirements are not contained in what, he submits, is the arbitration agreement (paras. 6 and 7 of the minutes of settlement), he argues that it is of critical importance that the court have regard to the facts that occurred immediately after the signing of the minutes of settlement.
[17] The minutes of settlement were signed on May 10, 2016. From that time until June 2, 2016, there was extensive correspondence between the parties to try to arrange the arbitration hearing.
[18] Mr. Grant, during this four to five-week period, forwarded a draft arbitration agreement that was considerably more detailed than paras. 6 and 7 of the minutes of settlement. Mr. Grant's draft agreement was discussed between counsel and amended by the then applicant's counsel. The draft arbitration agreement also required input as certain wording was blank and left to the parties to complete.
[19] Within a day or two of hearing from the applicant's former counsel, the respondent signed the draft arbitration [page16] agreement. His counsel also signed the certificate of independent legal advice.
[20] The draft arbitration agreement was sent back to the applicant's former counsel but remained unsigned. The arbitrator, Mr. Grant, did not sign the draft arbitration agreement either, as I am told, this typically occurs after the parties have signed. There is also evidence to indicate that Mr. Grant told the respondent's counsel he would continue to act as arbitrator, even if his draft was not signed by the applicant, as long as the "court ordered it".
[21] The respondent relies on the facts occurring after the signing of the minutes of settlement to demonstrate that the parties moved diligently to effect the arbitration.
[22] Within a day or two after returning the draft arbitration agreement to the applicant's former lawyer, the respondent's lawyer learned that the applicant's lawyer was no longer acting on the file and that the applicant would be acting on her own behalf.
[23] On June 30, 2016, during a brief court appearance, Justice McGee endorsed the court record.
[24] The respondent points out that the terms of Justice McGee's order are virtually identical to the minutes of settlement with some words included, "to deal with the possibility that the arbitration would not go ahead".
[25] The respondent further points out that there was a pending motion to change an earlier temporary support order. He eventually withdrew it after agreeing to pay costs to the applicant.
[26] In the fall of 2016, the applicant brought a motion for disclosure before the court. As she was self-represented, the respondent attended upon the motion without counsel. An order for disclosure was made. The respondent states that he was not aware of the fact that he might have been able to request a stay at that appearance.
[27] Nothing has occurred on the file since the autumn of 2016. I am told that Mr. Grant continues to hold dates available if the arbitration is to proceed.
[28] The respondent submits that the court should strive to do what is reasonable in the circumstances of this case. He argues that there is an implied term in this "contractual" situation to do what the parties clearly wanted. The court, he submits, should find that there is an arbitration agreement and, therefore, stay the application under s. 7(1) of the Arbitration Act. The court should strive to carry out the intentions of the parties.
[29] A supplementary document is not required, because a secondary document simply serves to educate the parties about process. [page17]
[30] The respondent submits that the added words in Justice McGee's endorsement about a secondary agreement are verbiage, in the sense that they take nothing away from the fact that the parties entered into an arbitration agreement by signing the minutes of settlement.
Refusing a stay -- Undue delay
[31] Section 7(2) of the Arbitration Act allows the court in certain circumstances to refuse a request for a stay. Section 7(2) states as follows:
Exceptions
7(2) However, the court may refuse to stay the proceeding in any of the following cases:
A party entered into the arbitration agreement while under a legal incapacity.
The arbitration agreement is invalid.
The subject-matter of the dispute is not capable of being the subject of arbitration under Ontario law.
The motion was brought with undue delay.
The matter is a proper one for default or summary judgment.
[32] The only factor that might be engaged in this case is s. 7(2)4 which allows the court to refuse a stay where the motion for the stay was brought with undue delay.
[33] The respondent's position is that there was no undue delay as he brought his motion to stay in a timely fashion. Other than obtaining a date for the hearing of the temporary support motion and its withdrawal, he instituted no further court action. He stresses that the disclosure motion in the autumn of 2016 was brought by the applicant and not by him.
Cherry-picking
[34] Finally, the respondent submits that not to imply a term and validate the arbitration agreement would simply be wrong. This is because it would allow the applicant to cherry pick those terms of the minutes of settlement she favours and disregard those she does not. The court, the respondent argues, should do what is fair.
Floodgate argument
[35] Further, the respondent argues the court should not concern itself with a floodgate argument as this case could be restricted to its unique circumstances. [page18]
Submissions -- Applicant
[36] The applicant submits that since 2007, when the regulation with respect to family arbitrations came into effect, the formalities must be followed. The regulations are mandatory in nature and apply to all primary arbitrations. In this case, the formalities have been ignored and the court cannot override them by implying terms even where intention is clear.
[37] The applicant, in addition to raising the argument about formalities, directs the court to the wording of the endorsement of Justice McGee. The applicant argues that the court itself clarified matters by using "if/then" language. The endorsement of the court foresees the need for a secondary document called an "Agreement to Arbitrate" which, presumably, would include the necessary formalities. The applicant argues that a formal agreement to arbitrate is a necessary condition precedent to an arbitration.
[38] The applicant also points out that the dates for the arbitration set out in both the minutes of settlement and court order have not been met.
[39] In addition, the applicant relies on the court's jurisdiction to refuse a stay because the respondent waited far too long to bring his motion to stay and, therefore, the court should dismiss it pursuant to s. 7(2) of the Arbitration Act.
[40] Finally, the applicant is concerned about the fact that, if the arbitration were to proceed as envisaged by the respondent, a family arbitration award would likely be unenforceable because the award would be flawed as a result of lack of formalities.
Discussion
[41] The respondent clearly understands that the arbitration agreement he relies upon offends the mandatory regulations to the Arbitration Act requiring formalities. It is the minutes of settlement and the events that followed that should allow the court to hold that the intention of the parties was to arbitrate and, therefore, order that the arbitration proceed, notwithstanding the lack of formalities.
[42] The respondent points out that, as the minutes of settlement were conducted at a four-way meeting, there was, in fact, independent legal advice. It is presumed that as the parties and arbitrator are in Ontario that Ontario law would apply. The respondent, however, makes no mention of appeal rights and the failure of the arbitrator to sign. In an arbitration, given that the process is contractual, appeal rights do not materialize automatically. They must be set out. The fact that the arbitrator has not yet signed his certificate is also problematic as it is presumed [page19] that there has been no discussion about the issue of a power imbalance between the parties (domestic abuse has not been raised) which is also a formal requirement.
[43] The respondent relies on two cases that allow the court to imply terms to reflect the intention of the parties. As both are commercial cases, they are distinguishable on their facts but the principle is important.
[44] In M.J.B. Enterprises Ltd. v. Defence Construction (1951) Ltd., , [1999] 1 S.C.R. 619, [1999] S.C.J. No. 17, at p. 634 S.C.R., Justice Iacobucci referencing Justice LeDain in C.P. Hotels Ltd. v. Bank of Montreal, , [1987] 1 S.C.R. 711, [1987] S.C.J. No. 29, states:
. . . terms may be implied in a contract: (1) based on custom or usage; (2) as the legal incidents of a particular class or kind of contract; or (3) based on the presumed intention of the parties where the implied term must be necessary "to give business efficacy to a contract or as otherwise meeting the aeofficious bystander' test as a term which the parties would say, if questioned, that they had obviously assumed" (p. 775).
[45] This reasoning does not apply in the circumstances of this case as the legislature has chosen to make certain formal requirements necessary in order to have a legal and binding arbitration. If the respondent were correct, the court would be implying a process as opposed to "terms". This it cannot do. The contractual arrangement that Justice LeDain was focused upon was purely private, not governed by legal formal requirements as is the case before me.
[46] Similarly, in Winfair Holdings (Lagoon City) v. Simcoe Condominium Corp. No. 46, [1997] O.J. No. 3495, 39 O.T.C. 110, 73 A.C.W.S. (3d) 541 (Gen. Div.), Winfair was estopped from contesting the validity of an agreement on the basis of ratification because of dealings between it and the defendant. Once again, this was a purely private contract between commercial parties that was not governed by formal legislative requirements.
[47] It is important to examine Justice McGee's endorsement of June 30, 2016. While courts cannot take an active role by ordering parties to arbitrate, a court may make an order on consent once parties have themselves chosen that process. To overcome formal deficiencies, however, a court should not imply or engraft terms upon what is essentially a consensual process chosen by the parties.
[48] In this case, Justice McGee, in her endorsement, clearly foresaw that the parties required a secondary document and even stated that they were going to enter into a secondary document called an agreement to arbitrate. At no time did Her Honour state that the application was stayed. In fact, quite the opposite, [page20] as provision was made for the continuation of the court case if an agreement to arbitrate was not reached. That possibility was envisaged. It is reasonable to assume that the respondent, who was represented at the event before Justice McGee, did not raise the issue of a stay at that time. If it was raised, Justice McGee made no mention of it. If it was not raised, then it seems to me that an opportunity was lost. I would have thought that when Her Honour indicated a future course for the litigation, the issue with respect to a stay would have been raised, given the respondent's view that an arbitration agreement had been reached.
[49] In addition, while I agree with the respondent that both parties were diligent in attempting to move the matter towards an arbitration by Mr. Grant, the entirety of their dealings and conduct in the weeks after the signing of the minutes of settlement demonstrated that both of them knew a secondary agreement was a condition precedent to the arbitration itself. Otherwise, why bother? Both parties behaved as though more than the minutes of settlement were required to get the matter to arbitration.
[50] If one examines the draft arbitration agreement carefully, one can readily see how important some of the provisions are to a successful arbitration. While I agree with the respondent that many of the provisions are educationally focused, some, nonetheless, deal with very real rights and obligations. For instance, the draft arbitration agreement contains a provision for the confidentiality of the process. Neither the court order nor the minutes of settlement covered that point. Nor, in my view, could it be covered by an implied term through court order.
[51] The respondent has raised a number of other cases for the court to consider.
[52] In Haas v. Gunasekaram, [2016] O.J. No. 5286, 2016 ONCA 744, the Court of Appeal, at paras. 10 and 12, states:
The law favours giving effect to arbitration agreements. This is evident in both legislation and in jurisprudence. Section 7 of the Arbitration Act contains mandatory language, stating "the court in which the proceeding is commenced shall, on the motion of another party to the arbitration agreement, stay the proceeding".
As can be seen, the statutory language in s.7 of the current Arbitration Act is directory, not equivocal. It strongly favours giving effect to an arbitration agreement. This policy direction is reinforced by s. 17 of the Arbitration Act:
17(1) An arbitral tribunal may rule on its own jurisdiction to conduct the arbitration and may in that connection rule on objections with respect to the existence or validity of the arbitration agreement. [page21]
(2) If the arbitration agreement forms part of another agreement, it shall, for the purposes of a ruling on jurisdiction, be treated as an independent agreement that may survive even if the main agreement is found to be invalid.
(Emphasis in original)
[53] I agree with this statement of the law. However, in the case at bar, there is no arbitration agreement. The minutes of settlement do not qualify as an arbitration agreement. The case is not about the jurisdiction of the arbitrator.
[54] In M. v. F., [2015] O.J. No. 2048, 2015 ONCA 277, the Court of Appeal bound a recalcitrant party to recommendations made by a "mediator/arbitrator". While M. v. F. deals with mediation/arbitration and not just an arbitration, it is clear that the party who disagreed with the recommendations made had gone through the entire process. This is quite unlike the present matter where there was a refusal to sign a properly constituted arbitration agreement. As well, the Court of Appeal appears to base its findings on the ruling of the trial judge who had included a provision in the court order that any recommendations made would be implemented. The Court of Appeal did not focus on the issue of the validity of a mediation/arbitration, let alone an arbitration agreement. As well, Justice McGee's endorsement recognizes the necessity for a more formal agreement and set out a future plan for the court case in the event arbitration did not proceed. This is quite different than the issue presented in M. v. F.
[55] In Marchese v. Marchese, [2007] O.J. No. 191, 2007 ONCA 34, the motion judge concluded that because the parties consented to a mediation/arbitration, there was an agreement to arbitrate between them. In this case, the appellant refused to continue with the arbitration after mediation breakdown. In dismissing the appeal, the Court of Appeal upheld the trial judge.
[56] It is important to note, however, that Marchese was decided prior to O. Reg. 134/07 coming into force. This regulation required every family arbitration agreement to observe its formalities.
[57] In Parker v. Pal, [2014] O.J. No. 6338, 2014 ONSC 7035 (S.C.J.), Justice Trimble spoke of the importance of holding parties to their agreement and, therefore, afforded a high degree of deference to the arbitration process by refusing to intervene in it. It is to be noted in this case that the parties had already signed a valid arbitration agreement and the arbitrator had already made an interim (temporary) ruling. The aggrieved party was moving against the arbitration process by claiming bias. Once again, the court points out the mandatory nature of s. 7(1) of the Arbitration Act to grant a stay. In Parker v. Pal, a valid arbitration was not at issue as it is here. [page22]
[58] In Thomson v. Thomson, [2012] O.J. No. 1177, 2012 ONCJ 141, the court was dealing with a separation agreement that referred future issues to mediation/arbitration. The issue for the court involved future dispute resolution by way of mediation. There is no issue with respect to the nature of the agreement.
[59] The applicant also brought certain case law to the court's attention. I will deal with only one. In McFarland v. McFarland, [2015] O.J. No. 1790, 2015 ONSC 2355 (S.C.J.), Justice Minnema in dealing with minutes of settlement that set out the fact there would be a consent order for secondary arbitration stated, at subpara. [7]5 as follows:
- 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?
[60] The court indicated that while it appreciated and supported what counsel were seeking to accomplish, it required written submissions or "even a factum" on the issue.
[61] In McFarland, there is clearly a recognition of the need to follow the provisions of both the Family Law Act, R.S.O. 1990, c. F.3, and the Arbitration Act and regulations. There is interesting speculation about how a court might engage in the issue, if so requested. In the case at bar, the court was not asked to deal with enforcing the order.
[62] It is interesting to speculate on how a court might rule when asked to enforce an order that contains an agreement to enter into an arbitration process. Generally speaking, a court is without jurisdiction to order parties to engage in an arbitration or mediation process, with the exception of its persuasive powers, especially during a conference. But what happens when the parties have already agreed?
[63] I was not given any indication that there was follow-up in McFarland. The answer will, therefore, have wait for another day.
[64] A court can be asked to enforce its own order. In this case, the court was asked to order a stay and not to enforce Justice McGee's order.
[65] Seeking enforcement, in this particular case, might not enjoy the same success as it might otherwise, because the court flagged what would happen if arbitration did not proceed. The circumstances might be entirely different if the minutes of settlement had simply dealt with the parties' willingness to enter into an agreement and had not added what the respondent has called "verbiage". [page23]
[66] I do not need to comment on reasons to refuse a stay pursuant to s. 7(2) of the Arbitration Act because I have already found that there is no valid arbitration agreement before this court.
[67] However, as the parties each made submissions on the point, I shall deal briefly with the issue of refusing a stay. The facts occurring after it had been determined that the applicant would not sign the draft arbitration agreement, would have resulted in a refusal of a stay due to the length of time it took to get this motion before the court. Wrapped up in that is the fact that, once the respondent realized that the applicant was not going to sign Mr. Grant's draft arbitration agreement, the respondent moved ahead with his court motion to change support (until later withdrawing it) and he participated in a disclosure motion long after he knew that the draft arbitration agreement was not going to be signed. While I appreciate that both parties were unrepresented at the disclosure motion, the submission that the respondent did not understand he could have asked for a stay rings hollow. In the first place, I must treat an unrepresented party as I would treat a represented party and, therefore, cannot excuse any lack of knowledge of the law. Secondly, the respondent is a lawyer himself and was quite capable of indicating to Justice Douglas, who heard the disclosure motion, that the process should be put on hold because of the arbitration. That was not done, or at least not done effectively.
[68] While it might seem somewhat peripheral to the main point of whether there is a valid arbitration agreement in effect, the applicant is correct in pointing out that the dates upon which the arbitration were to take place, as set out in the minutes of settlement were not utilized. In my view, this is a de minimus issue. In addition, although Mr. Grant was chosen as the arbitrator, the respondent himself proposed, at one stage, that the parties choose another person, thinking that the choice of arbitrator may have been a factor in the applicant's refusal to conclude the draft arbitration agreement or, possibly, that Mr. Grant was unavailable.
[69] From a policy point of view, I am mindful of how important it is in family law to hold parties to their agreement. It is also important to have options such as arbitration and mediation/arbitration for parties who wish to opt out of the litigation process. Getting parties to agree on both process and substantive issues is, after, all an important function of case management. Had there been no formal requirements necessary, and had Justice McGee and the parties themselves not recognized the need for and importance of a formal arbitration agreement, [page24] I may have been persuaded to stay the court application or deal with the apparent breach of court order in some other manner.
[70] It seems to me that there are some steps available for those who wish to enter into the arbitration process through a consent order of the court:
(1) have the parties sign an arbitration agreement that observes the formalities at the time the consent order is requested; and
(2) ask the court to stay the legal proceeding when the consent order is requested.
Order
[71] There will be an order dismissing the respondent's motion to stay the application and court process.
[72] I would once again like to thank counsel for their very thorough submissions.
Costs
[73] Should the parties be unable to agree upon the issue of costs, the applicant shall have until April 18, 2017 to forward written submissions. The respondent shall respond by no later than April 27, 2017; a brief reply, if necessary, will be accepted if it is delivered no later than June 1, 2017. Submissions to be filed in the continuing record and shall be no longer than three pages excluding bills of costs and offers to settle.
Motion dismissed.