Court File and Parties

COURT FILE NO.: FS-17-21445-0000 DATE: 20180704 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Andreas Veneris AND: Mipha Koh Veneris

BEFORE: J.T. Akbarali J.

COUNSEL: Michael Miller and Rachel Pilc for the Appellant Nicole Tellier for the Respondent

HEARD: June 28, 2018

Endorsement

[1] The appellant appeals from a series of awards made by Arbitrator Goldhart. In particular, the appellant appeals the arbitrator’s decision that the parties’ four-year-old child, E, be registered on the Korean Family Registry, an order that the parties hire a transfer facilitator to transfer E between them and share the expense in proportion to their incomes, and the arbitrator’s decision as to costs.

[2] In addition, each party brings a motion for fresh evidence. At the hearing of the appeal, I allowed the respondent’s motion for fresh evidence on consent and I allowed certain portions of the appellant’s affidavit to be admitted as fresh evidence also on consent. I dismissed the balance of the appellant’s motion to adduce fresh evidence, including two reports from the TDSB and two reports of a Dr. Augustine Meier, with reasons to follow. I declined the appellant’s request for an adjournment to allow him to appeal my determination on the fresh evidence motion before the main appeal was heard.

[3] In these reasons I first give my reasons on the parties’ preliminary motions. I then address the main appeal, which I find is without merit and which I dismiss in its entirety.

The Preliminary Motions

[4] The respondent brought a motion to adduce fresh evidence on appeal consisting of her evidence in support of her argument that the appellant is in breach of the award under appeal and certain paragraphs of the order of Justice Weagant dated March 10, 2016. Her fresh evidence also addresses the ongoing effect on E of the direct exchanges between the parties. This evidence was admitted on consent. The respondent seeks to rely on the evidence of the appellant’s alleged breaches of the award and order in the context of remedy and costs of this appeal. The evidence of the ongoing effect of the direct transfers on E relates to the arbitrator’s determination that indirect transfers are in E’s best interests, and her award that the parties engage a transfer facilitator to allow for indirect transfers.

[5] The respondent also sought relief that the appellant’s appeal be dismissed due to his breaches of the arbitral award and the order of Justice Weagant. However, at the outset of the hearing, the respondent advised that she would withdraw her request for this relief in an effort to have the issues on the main appeal dealt with as quickly as possible.

[6] The appellant also brought a motion to adduce fresh evidence. At the outset of the hearing, I noted that the appellant’s material included two affidavits, one of which had 49 exhibits, and much of which related to evidence or events that could not be called fresh. The appellant advised that he was principally concerned with the admission of a report from E’s school detailing her performance at school and an attendance report from E’s school, and with the admission of two reports from Dr. Meier.

[7] Dr. Meier was engaged by the College of Registered Psychotherapists of Ontario to provide a report with respect to allegations the appellant had made against Carol-Jane Parker, a psychotherapist, who had given evidence in the arbitration. According to the appellant, the reports demonstrate that Ms. Parker’s evidence was not reliable and demonstrate that the respondent possibly has transitory hysterical psychosis.

[8] The respondent objected to the admission of most of this proposed fresh evidence. She provided a copy of one of the appellant’s affidavits, redacted so that what remained was his evidence with respect to the alleged breaches of the award and the order of Weagant J. She consented to the admission of this redacted affidavit evidence on the basis that evidence regarding the alleged breaches was both fresh and would be relevant to a remedy that she would seek were she successful on the appeal.

[9] The respondent noted that the appellant filed a revised volume 4 of his appeal record which included fresh evidence for which no order to admit had been given and also evidence that the arbitrator had declared inadmissible in the arbitration.

[10] The appellant made no submissions on whether the respondent’s redactions to his affidavit were appropriate or on the documents contained in his revised volume 4. Rather, the appellant’s submissions focused solely on the Meier reports and the TDSB reports.

[11] In R. v. Palmer , [1980] 1 S.C.R. 759, the Supreme Court of Canada set out a four-part test for the admission of fresh evidence:

a. The evidence could not have been adduced at trial; b. The evidence must be relevant in that it bears on a decisive or potentially decisive issue; c. The evidence must be reasonably capable of belief; d. The evidence must be such that, if believed, it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

[12] The test is relaxed where the evidence sought to be adduced relates to the best interests of the child: Goldman c. Kudelya, 2017 ONCA 300 at para. 25.

[13] At the hearing of this appeal, after submissions on the merits of the motions, I advised the parties that I would not admit the reports of Dr. Meier or the reports of the TDSB, and that my reasons would follow. I also declined to receive revised volume 4 of the appellant’s appeal record. I admitted the appellant’s redacted affidavit on consent.

[14] Since the appellant restricted his argument to the two TDSB reports and the two Meier reports, I explain the reasons for refusing their admission below.

[15] In my view, the TDSB report relating to the child’s attendance fails the second and fourth branches of the Palmer test. I asked the appellant to identify which of the issues under appeal from the arbitrator’s award might be affected by the child’s attendance report. The appellant submitted that the report was relevant to the child’s best interests but could not relate it to a specific issue under appeal. In my view, the question of the child’s registration on the Korean Family Registry or the question of the transfers between the parties have nothing to do with the child’s attendance at school. The arbitrator’s cost determination is equally unaffected by the child’s attendance at school. The proposed evidence does not bear on a decisive or potentially decisive issue and could not reasonably be expected to have affected the results of the arbitration.

[16] Similarly, the TDSB report dealing with the child’s performance at school does not relate to the issues under appeal. The appellant argued that the child’s overall success is inconsistent with the arbitrator’s finding that indirect transfers were necessary to avoid harm to the child. However, the TDSB report has nothing to do with the child’s state during the direct transfers that are currently taking place between the parties. It does not bear on a decisive or potentially decisive issue. Moreover, the arbitrator’s conclusion on the question of the transfers was based on evidence, including videotaped evidence that she viewed, that the child becomes distressed and enters into a dissociative state during the direct transfers. Evidence that the child performs well in another setting is not evidence that could reasonably be expected to have affected the result at arbitration.

[17] The Meier reports opine that Ms. Parker may have breached certain professional standards relating to her conduct prior to the arbitration. The parties were aware of her conduct prior to the arbitration. Most of these professional standards are not relevant to the substance of her work. However, Dr. Meier’s reports address Ms. Parker’s competence to administer psychometric testing and suggests she may have been incompetent to do so. He also suggests that evidence Ms. Parker gave at the arbitration about whether the respondent is a flight risk was outside her competence.

[18] The psychometric testing is important to the appellant. Ms. Parker administered psychometric testing to the parties on the basis that she would provide each of them with a summary of the results. In error, and without the consent of the respondent, she released raw test data and scores to the appellant’s counsel directly. The results suggested that the respondent might have a significant mental health disorder. When this was brought to Ms. Parker’s attention, she advised that there was an error in the results. There may have been coding errors, or there may have been data entry errors, or both. Ms. Parker corrected the errors and provided updated test information to the parties. Although the appellant had previously expressed no concern about the respondent’s mental state, he now alleges she has a mental disorder, and relies on the reports of Dr. Meier to establish it. He also seeks to rely on the reports of Dr. Meier to discredit Ms. Parker.

[19] In my view, the Meier reports should not be admitted as fresh evidence for many reasons:

a. There is no affidavit evidence from Dr. Meier. The reports are hearsay, but the appellant seeks to rely on the reports for proof of the truth of their contents. The appellant made no attempt to justify their use based on a principled exception to the hearsay rule. b. In my view, the reports are not necessary. There is no evidence that Dr. Meier was not available or that the appellant could not have obtained another expert to review the test data if it were necessary to do so. Moreover, the reports are not reliable. The respondent has had no opportunity to cross-examine Dr. Meier or to produce her own evidence on her mental health. The disciplinary proceedings for which the report was produced are ongoing and no findings or conclusions have been reached. Without establishing an exception to the hearsay rule, this is not evidence that can be relied upon for proof of the truth of its contents. It thus cannot be said to be reasonably capable of belief. c. If the question of the respondent’s mental health was raised by the original psychometric testing, that information was known to the appellant prior to the arbitration. He did not seek to deal with it at that time, retain his own expert or seek an adjournment of the arbitration. Similarly, Ms. Parker’s errors with respect to the psychometric testing was known to the parties prior to the arbitration. She was questioned about that issue. Her qualifications to opine on whether the respondent was a flight risk were also addressed during her evidence at the arbitration. In this sense, although the report of Dr. Meier post-dates the arbitration, the content of the report is not evidence that could not have been adduced at trial. d. The appellant wishes me to take a paragraph from Dr. Meier’s report that discusses certain test results and conclude that the respondent struggles with a partial break with reality and possible transitory hysterical psychosis. Dr. Meier has not met the respondent. There is no expert evidence before me with respect to these tests, their reliability or any other evidence that might assist me in interpreting them. I decline to become my own expert. This evidence is not reasonably capable of belief. e. There is no acknowledgement of expert’s duty in the file, yet I am asked to rely upon Dr. Meier’s reports, in his absence, as expert evidence. This is another factor that renders this evidence less reliable, and not reasonably capable of belief. f. With respect to Dr. Meier’s conclusions about Ms. Parker, I note that the arbitrator herself found her evidence to be quite problematic at many levels, including the lack of rigour in the administration and scoring of the psychological testing of the parties. However, the arbitrator found that the psychological testing of the parties was not relevant to the issue she was being asked to determine. As a result, she did not spend more time to detail the “serious concerns” that she had with Ms. Parker’s evidence. Moreover, Ms. Parker’s evidence about whether the respondent is a flight risk was only some evidence among a substantial amount of evidence the arbitrator heard from many sources. It cannot thus be said that Dr. Meier’s evidence about Ms. Parker could reasonably be expected to have affected the result at arbitration. g. Finally, there is a statutory prohibition on accepting a report prepared for an RHPA proceeding into a civil proceeding. Section 36(3) of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 provides that “... no report, document or thing prepared for or statement given at [a proceeding under this Act] … is admissible in a civil proceeding …”. The appellant argues that I can ignore this statutory prohibition based on the best interests of the child. There is no such discretion in the statute. I disagree that I can disregard the prohibition that the legislature has set out.

[20] Fundamentally, the appellant seeks the admission of Dr. Meier’s reports to urge me to find that the respondent is suffering from transitory hysterical psychosis on the basis of inconsistencies that Dr. Meier has identified between different psychometric test results, performed by Ms. Parker, who he states is possibly incompetent to conduct the testing, when Dr. Meier has never met the respondent, has provided no evidence, and cannot be cross-examined, when the import of the tests is not explained, in circumstances where the data suggesting that the respondent might have a mental illness was available before the arbitration, but the appellant undertook no analysis of that data and sought no adjournment. And he asks me to do all of this in the face of a statutory prohibition against receiving the Meier reports into evidence. This is an absurd position.

[21] At the hearing, when I indicated I would not allow the Meier reports or the TDSB reports into evidence, the appellant sought an immediate adjournment to appeal my determination of his motion. I declined, indicating that I was concerned about the effect of the direct transfers on the child, and was not prepared to delay the main appeal given the appellant’s admitted refusal to begin indirect transfers as ordered by the arbitrator, despite the fact that no stay has been granted.

The Main Appeal

[22] Before I describe the issues on the main appeal, I provide some context as to how the arbitration came to be.

[23] When the parties separated, E was six months old. The respondent is a Korean national who grew up in Japan and had lived in the United States. The appellant is a Greek and Canadian national who grew up in Greece and has obtained a position in Toronto. The parties live in Toronto.

[24] Litigation began in the Ontario Court of Justice. It was acrimonious and expensive. One of the recurring themes was the appellant’s belief that the respondent would abduct E and bring her to Japan. On the eve of trial, the parties reached a settlement agreement which was incorporated in the consent order of Weagant J. dated March 10, 2016. The order provides that the parties have joint custody of E. It also provides a number of terms limiting E’s travel and mobility, including terms restricting either party from having custody of E’s birth certificate. The order identifies a document holder to have custody of E’s original birth certificate. The document holder specified in the order is Cheryl Goldhart.

[25] As a result of the settlement, the parties agreed to arbitrate three parenting-related issues, also with Cheryl Goldhart. In this way, Ms. Goldhart wears two hats: she is both arbitrator and document holder. The parties also agreed to separately arbitrate with another arbitrator their financial issues. I understand their financial issues remain unresolved. The appellant estimates the between the two of them they have spent $2 million on proceedings thus far. The financial arbitration is not affordable at this time.

[26] The parenting-related issues were meant to be arbitrated immediately over three days but the arbitration lasted 11 days and took place over six months. The issues placed before the arbitrator were:

a. The appellant’s request that the child be baptized in the Greek Orthodox Church; b. The respondent’s request that the child be registered on the Korean Family Registry; c. The weekend exchange location for the pickup and drop-off of the child.

The Arbitrator’s Decision

[27] First, the arbitrator dismissed the appellant’s request that the child be baptized in the Greek Orthodox Church, finding that she did not have authority to choose the appellant’s religion over the respondent’s religion for the child. No appeal is taken from this finding.

[28] Second, she found that the child should be registered on the Korean Family Registry. She concluded that the Korean Family Registry has great cultural significance for Koreans. She acknowledged that by registering E on the Korean Family Registry, E would become eligible for a Korean passport. However, she accepted expert evidence to the effect that if E’s birth was registered on the Korean Family Registry at the same time as the parties’ divorce and their joint custody order, the Korean government would not issue E a passport without the consent of both parents. The evidence indicated that the original birth certificate is required for registration on the Korean Family Registry. The arbitrator, who is also the document holder responsible for holding the original of E’s birth certificate, awarded that she would attend at the Korean consulate with the parties or their counsel with the original birth certificate and to ensure that the registration of E’s birth would happen contemporaneously with the registration of the divorce and the joint custody order. The arbitrator accepted that these safeguards would prevent the respondent from obtaining a Korean passport for E, and found that the respondent is not a flight risk. She further found that the appellant’s fear that the respondent will abduct E is not grounded in reality.

[29] Third, with respect to the transfers, the arbitrator found that neither party’s proposal for a transfer location was acceptable. She expressed grave concern for E’s well-being during the transfers based on evidence given by each parent, Ms. Parker, another witness, Dr. Pugliese, who had observed the transfers, and videotaped evidence recorded by the appellant, perhaps surreptitiously, of a number of transfers. The arbitrator concluded that direct transfers were not in E’s best interests. As a result, she awarded that the parties would hire a transfer facilitator to conduct indirect transfers of the child between them and they would share the expense in proportion to their incomes.

[30] Weagant J.’s order called for the arbitration to proceed immediately. The respondent had advised Weagant J. that the arbitration would proceed over certain days that had been reserved for trial. Appellant’s counsel did not correct this representation. As it turned out, the appellant’s counsel was unavailable on those days. The respondent thus moved before the arbitrator to bifurcate the question of the exchange so it could be heard immediately. She was not successful on the motion. The arbitrator reserved costs of the motion until after the arbitration had been determined.

[31] In considering costs of that motion, the arbitrator concluded that the appellant had negotiated in bad faith, leading the respondent to believe that the arbitration could proceed immediately when he knew it could not. She stated that had she known at the time of the motion the facts she learned during the arbitration, she would have granted the bifurcation motion. Although the appellant had been successful on the bifurcation motion, she awarded costs of that motion to the respondent.

[32] With respect to costs of the arbitration, the arbitrator measured the result of the arbitration against the offer to settle delivered by the respondent and concluded that she had been successful in every respect, obtaining awards as good as or better than those contained in her offer. She considered factors relevant to a costs determination and concluded that the appellant should pay 70% of the respondent’s costs of the arbitration, including 70% of the disbursements and 70% of the respondent’s share of arbitration fees. In addition, she ordered that the appellant pay the full costs of the time the arbitrator spent reviewing the transcripts of the arbitration, an exercise she had undertaken at the insistence of the appellant and which she found to be wholly unnecessary.

The Issues For Appeal

[33] The appellant appeals from the determinations with respect to the Korean Family Registry and the transfer facilitator. He also appeals costs, although he has not sought leave to do so. The issues before me on this appeal are as follows:

a. Did the arbitrator make palpable and overriding errors of fact when she determined that the child could be placed on the Korean Family Registry without violating the travel and mobility provisions of Weagant J.’s order? b. Did the arbitrator err by finding that the child should be placed on the Korean Family Registry through a process which included the arbitrator attending the Korean consulate with the child’s original birth certificate and overseeing the registration of the child’s birth, the parties’ divorce and the joint custody order? c. Did the arbitrator exceed her jurisdiction by determining that the parties must hire a transfer facilitator and share the expense in proportion to income? d. Did the arbitrator err by failing to hear the evidence of a proposed witness, Dr. Barbara Jo Fidler, on the issue of the transfers? e. Did the arbitrator err in reaching her costs award? In particular: i. Did she err by awarding costs of the bifurcation motion, on which the appellant was successful, to the respondent? ii. Is the award plainly wrong because it is punitive?

[34] Many of the issues raised on this appeal involve questions of fact, or questions of mixed fact and law. The arbitrator’s determinations on those questions are entitled to deference, and cannot be interfered with unless they amount to palpable and overriding error. As the Supreme Court of Canada has noted, a narrow scope of appellate review in family law matters promotes much needed finality: Ojo v. Mason, 2013 ONSC 1240, at paras. 19-24; Van de Perre v. Edwards, 2001 SCC 60, at paras. 8-16.

[35] Before I turn to the analysis of the issues raised on appeal, I pause to note that the appellant conducted this appeal like a hearing de novo. He had a difficult time articulating the basis for his appeal in the context of the appropriate standard of review. He sought to introduce significant evidence that was not proper, and not just by motion but also by adding documents to his appeal record for which no leave had been granted, and in some cases, where the evidence had been ruled inadmissible by the arbitrator. Moreover, I found many of the appellant’s arguments imprecise and, when asked to provide support for the statements made, the appellant’s counsel could not do so.

The Korean Family Registry

[36] The appellant’s first argument is that the arbitrator erred by concluding that it was possible for E to be registered on the Korean Family Registry without contravening Weagant J.’s order. He argues that the child is eligible for a passport once on the Registry, and the order does not permit a passport to be obtained for her.

[37] I disagree with the appellant. First, Weagant J.’s order is silent as to whether a passport can be obtained. The order prohibits E from travelling outside Canada until she is at least 13 years old, but it does not prohibit her from obtaining a passport. There is a provision prohibiting either party from obtaining a birth certificate for E without an order of the court until she reaches 13, but there is no similar provision respecting a passport.

[38] In any event, the arbitrator did not award that E would obtain a passport. Rather, she considered the circumstances under which E could be registered on the Korean Family Registry without obtaining a passport. She accepted evidence from the respondent’s expert that if E’s birth was registered with the government of Korea at the same time as the parties’ divorce and the joint custody order, the government would not issue her a passport without both parties’ consent. She thus awarded that the registration would take place in this manner to safeguard against the possibility that the respondent could obtain a passport for E on her own. This is a finding she was entitled to make and which is grounded in the evidence.

[39] The appellant argues this is an error because all the respondent has to do is forge his signature and the child can obtain a passport and be removed from the jurisdiction. However, this argument must be considered in the context of the arbitrator’s findings that the respondent is not a flight risk, and that the appellant’s fear that she will abduct E is a “preoccupation and perhaps obsession” that is “not grounded in reality”. The appellant disagrees with this finding but there is a basis in the record on which the arbitrator was entitled to reach these conclusions. In considering whether the respondent is a flight risk, the arbitrator considered a list of risk factors put forward by the appellant’s expert. She reviewed the evidence of the parties as well as objective evidence about the parties’ actions, including the respondent’s decision to leave the appellant mere days before the date they had agreed to attend to place E on the Korean Family Registry, and the fact that the respondent has already travelled with E to Japan and returned without incident. She also noted that the respondent is working towards moving her mother to Canada permanently. There is no basis to overturn the arbitrator’s findings on these points.

[40] The appellant also argues that the respondent is not engaged in the Korean community such that the arbitrator erred in concluding that registering E on the Korean Family Registry has cultural significance for the respondent. The respondent and her expert testified as to the cultural significance of registration on the Korean Family Registry. The arbitrator did not err in concluding that registering E on the Korean Family Registry has cultural significance for the respondent. There was ample evidence on the record to allow her to so find.

[41] The appellant also argues that the arbitrator cannot oversee the process of E’s registration on the Korean Family Registry. He states the arbitrator has impermissibly put herself in the position of attempting to enforce the arbitration award.

[42] The evidence before the arbitrator indicated that the original birth certificate is required to register the child on the Korean Family Registry. The arbitrator is also the document holder. In my view, her award directs that she must attend the consulate in her capacity as document holder. Nothing in Weagant J.’s order prohibits her from so doing. In particular, para. 34 of the order, on which the appellant relies, restricts the parties from obtaining the original birth certificate or a copy, and provides that they may request that the document holder provide a copy to an institution that requires it under certain conditions. However, paragraph 34 does not restrict what the document holder may do with the original birth certificate as long as it remains in her custody. The first sentence of the paragraph states that “[i]f a birth certificate or passport is required for school or other such purpose, the original shall be held with Cheryl Goldhart…” In my view, the arbitrator’s award that she, as document holder, attend to register E on the Korean Family Registry does not offend the provisions of Weagant J.’s order regarding E’s birth certificate.

[43] Moreover, to the extent the arbitrator oversees the registration of the birth, divorce and custody order, this oversight of an incident of custody on a matter that the parties agreed to put before her is a practical step consistent with her role as arbitrator. I agree with the respondent that the arbitrator adopted a practical and purposeful approach to ensure her decision that it was in E’s best interests to be registered on the Korean Family Registry would be implemented in accordance with her award.

The Transfer Facilitator

[44] The appellant argues that the arbitrator exceeded her jurisdiction by awarding that the parties should hire a transfer facilitator and share the cost in proportion to their income. He states that the question put to the arbitrator was the location for the weekend exchanges, and her jurisdiction was limited to determining where the transfer should take place.

[45] Weagant J.’s order states that “[t]he issue of the weekend exchange location shall be referred to Cheryl Goldhart for an immediate Arbitration”. However, the order also states that Arbitrator Goldhart would have jurisdiction regarding a number of issues, including “any other parenting issue” except certain exceptions, none of which apply to the issue of the transfer facilitator.

[46] Moreover, the agreement the parties executed with Arbitrator Goldhart gives her jurisdiction over “all parenting issues arising from the parents’ Minutes of Settlement”.

[47] I also note s. 28 (b) of the Children’s Law Reform Act, R.S.O. 1990, c. C12, which the appellant used before the Arbitrator to argue that she had authority determine any aspect of an incident of custody. Section 28 (b) refers equally to incidents of access. If Arbitrator Goldhart had acknowledged authority pursuant to s. 28(b) of the CLRA to determine incidents of custody, she also had it to determine incidents of access, including a transfer facilitator.

[48] In my view, while the very specific question put to Arbitrator Goldhart was the question of the weekend exchange location, the order, the arbitration agreement and s. 28(b) of the CLRA all invested the arbitrator with the jurisdiction to determine related incidents of access. This purposive interpretation of her jurisdiction recognizes the best interests of E. Moreover, it is consistent with the parties’ evidence and submissions at the arbitration. The parties gave evidence about the effect on E of the direct exchanges that had been taking place. Arbitrator Goldhart reviewed that evidence at length, and concluded that indirect transfers were necessary in E’s best interests. There was ample evidence in the record for her to make that finding.

[49] After the release of her award, the parties made further representations on who the appropriate transfer facilitator should be. The appellant made substantive argument on the point and raised no objection to the arbitrator’s jurisdiction to make the award of a transfer facilitator at that time.

[50] As to the appellant’s complaint that the arbitrator had no jurisdiction to deal with the cost of the transfer facilitator she awarded, I note that, had either party’s proposed transfer location been accepted (the respondent proposed APCO while the appellant proposed a child minding service at the YMCA) there would have been a cost associated with it. The question of weekend access exchanges thus necessarily involved a question of cost. The arbitrator was within her jurisdiction to make that determination with respect to the transfer facilitator.

[51] In any case, Arbitrator Goldhart did not make determinations of a financial nature. She did not decide what the parties’ incomes were or make other determinations as to cost. Rather, she awarded that the cost of the transfer facilitator be shared by the parties in proportion to income, as if it were a s. 7 expense. Determining this corollary issue does not offend the jurisdiction the parties have conferred on the arbitrator they have chosen to address their financial issues.

[52] The appellant also argues that the arbitrator erred in refusing to allow the evidence of Dr. Barbara Jo Fidler on the question of the transfers. I disagree. Dr. Fidler was involved with the family in a therapeutic capacity. She had not witnessed any transfers of the child between the parties. By the time the appellant identified Dr. Fidler as a witness, the arbitrator had heard and seen significant evidence of the transfers. She exercised her discretion to control the arbitration process – which it must be remembered lasted for 11 days when it had been scheduled for three – by refusing to hear evidence on an issue already well-canvassed from a witness with little to offer on the subject. This determination was, in my view, in keeping with the primary objective to deal with cases justly, including saving expense and time, and dealing with the case in ways that are appropriate to its importance and complexity: rule 2(2) and (3) Family Law Rules, O. Reg. 114/99.

[53] In my view, this ground of appeal should be dismissed.

Costs

[54] The appellant did not seek leave to appeal costs. The respondent allows this is a technical argument. Rather than deal with the costs appeal on that basis, I will address it on the merits.

[55] Costs are discretionary: s. 131 Courts of Justice Act, R.S.O. 1990, c. C.34. In Hamilton v. Open Window Bakery, the Supreme Court of Canada held that a costs award should be set aside on appeal only if the trial judge made an error in principle or the award is plainly wrong.

[56] With respect to the appellant’s argument that the arbitrator erred in awarding the respondent costs of the bifurcation motion when he was the successful party, r. 24(1) creates a presumption that the successful party is entitled to costs of a motion. However, r. 24(4) provides that a successful party who has behaved unreasonably during a case may be deprived of all or part of the party’s own costs, or ordered to pay all or part of the unsuccessful party’s costs.

[57] The arbitrator found that the appellant negotiated in bad faith by allowing the respondent to believe that the arbitration could proceed immediately on days that had been reserved for the trial. She found he knew his counsel was not available on those days. She found that proceeding to arbitration immediately was important to the respondent who had otherwise made significant concessions in the settlement the parties had reached. She held that this was a tactic that could not be condoned and ordered the appellant to pay the respondent’s costs as a result. There was a basis in the evidence upon which she could reach that conclusion, including documentary evidence that was ordered produced in the arbitration. There is no error in principle in her doing so.

[58] The appellant argues that she should not have considered evidence from the arbitration when determining costs of the motion. I disagree. Costs of a step in a case may be reserved for determination at a later stage in the case: r. 24(1)(b). The decision to reserve costs to a later step is typically taken when the trier of fact expects that the fair attribution of costs will be better determined in view of the facts that will be known after the completion of the later step. Otherwise there is no reason to defer costs to a later stage in the process. The arbitrator did not err in deferring the determination of costs of the motion to the end of the arbitration, and making that determination in view of all the facts known to her at that time.

[59] The appellant argues that there were issues on which neither party succeeded. He seeks to apportion the total amount of costs by the number of pages he states each issue occupies in the transcripts and on this basis argues that the respondent’s costs should be reduced.

[60] The arbitrator concluded that the respondent was the successful party having regard to the orders she sought in arbitration and also the offer she had made. She noted the decision in Benoit v. Kerr, 2014 ONSC 5401 at para. 18 where the court held that success in a proceeding is “most easily measured by comparing the result obtained…and the result sought….and the offer to settle”. She made no reversible error in determining the respondent to be the successful party.

[61] With respect to the appellant’s argument that requiring him to pay 70% of the respondent’s costs is punitive, I disagree. When assessing quantum, the arbitrator considered appropriate factors, including the importance, complexity or difficulty of the issues, the time spent on the case, the respondent’s offer to settle and proportionality.

[62] She also considered the reasonableness or unreasonableness of each party, and noted that the appellant’s inability to appreciate the consequences of his actions or to fully understand how his behaviour affects other people results in positions he has taken being counterproductive to any resolution. She found this behaviour created unnecessary costs that the respondent incurred.

[63] While the appellant argued that he did not have the ability to pay, there is evidence in the record that is inconsistent with this submission. In any event, the costs of these parties’ very expensive proceedings have to come from somewhere. The arbitrator explained the reasons why she concluded the costs award in favour of the respondent was appropriate. Her reasons are well-explained and there is ample basis for them in the record. It would not be just to force the respondent to incur costs for the appellant’s counterproductive litigation positions because he says he cannot afford the costs himself. He should not be permitted to litigate in this manner without consequence. However these consequences are not punitive; rather they are the natural consequences of the decisions he has taken.

[64] Accordingly the arbitrator made no error in principle in her costs award, nor is the award plainly wrong.

[65] In the result I dismiss the appeal in its entirety.

[66] The parties were not in a position to address costs of the appeal or preliminary motions at the hearing. The respondent has indicated she may be seeking additional remedies pursuant to r. 1(8) if she is successful in the appeal. The appellant indicated that he would prefer to deliver costs submissions in writing rather than reattend to make the necessary arguments.

[67] Accordingly, I direct the respondent to provide written submissions, not to exceed six pages, plus a bill of costs and any offers to settle, by July 13, 2018. The appellant shall provide responding submissions, not to exceed six pages plus a bill of costs and any offers to settle by July 20, 2018. The respondent may deliver reply submissions, not to exceed three pages, by July 27, 2018.

Akbarali J. Date: July 4, 2018