COURT FILE NO.: 37882/15

DATE: 2020-09-16

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: JOELLE SPADACINI-KELAVA, Applicant

AND:

DAVID GEORGE KELAVA, Respondent

BEFORE: Kurz J.

COUNSEL: Aaron Franks and Martha McCarthy for the Applicant

Harold Niman and Donna Wowk for the Respondent

HEARD: In writing

ENDORSEMENT

Introduction

[1] The Appellant mother (“Joelle”) and the Respondent father (“David”), each appeals portions of the arbitration award of Alfred Mamo (“the arbitrator”), dated September 10, 2019, and his clarification award of October 25, 2019 (collectively “the award”). Their appeals lie to this court under s. 45(6) of the Arbitration Act. In accord with the parties’ mediation-arbitration agreement, and ss. 45(2) and (3) of the Arbitration Act, the parties are entitled to do so without leave in regard to questions of law and mixed fact and law.

[2] The arbitrator is an experienced and respected family law lawyer, mediator and arbitrator. His award deals with both parenting and financial issues. Each parent appeals some aspect of the award in regard to both parenting and financial matters.

[3] As set out below, because of the timeliness of the parenting issues, I have bifurcated this appeal. In this decision, I only deal with the parenting issues. However, near the end of this decision, I also set out questions in which I require further assistance from counsel for the balance of this appeal. Those questions relate to the application of the doctrines of proprietary and issue estoppel to the issue of title to the matrimonial home.

[4] The background to this matter is briefly set out in the arbitrator’s costs award of May 7, 2020, as follows:[^1]

1. The parties who were married on May 10, 2000, had two children of their marriage, D born July 17, 2008, and C, born April 27, 2010.

2. The family lived together in the Greater Toronto Area (GTA) until the Spring of 2014 at which time the mother and the children began to live in Indiana in the United States of America, so as to allow C to attend a specialized centre for the treatment of autism (BACA) in Indianapolis.

3. While Joelle and the children were in Indianapolis, on a time limited Visa, David continued to live in the matrimonial home in Oakville, Ontario and visited with Joelle and the children frequently. After the breakdown of the relationship and separation in May of 2015, David continued to live in the former matrimonial home and Joelle continued to live in Indiana.

4. The issues to be determined at the hearing included:

i. Should the children continue to live in Indianapolis or return to the Oakville area?

ii. What would the parenting plan, including decision making and residency requirement entail?

iii. Ownership of the matrimonial home;

iv. Equalization of net family property;

v. A determination of retroactive and prospective child and spousal support as well as extraordinary expenses relating to children.

[5] In his award, the arbitrator pointed out that C suffers from “severe autism”. Manifestations of her condition include C being non-verbal, aggressive, and seriously self-injurious. D suffers from Attention Deficit Hyperactivity Disorder (“ADHD”), for which he receives a daily dose of Concerta. He also suffers from “bouts of anger and emotional upset”. Despite his young age, D has also spoken of suicide.

[6] The arbitrator described the parties as “two dedicated parents who went to extraordinary efforts to provide their children … with the best opportunity to reach their potential in life. Joelle and David each made individual and collective sacrifices before and after their separation.” The arbitrator set out the parents’ plan to have Joelle temporarily move to Indiana with the children to obtain treatment for C at BACA. C’s enrollment in BACA had the specific goal of “modifying C’s self-injurious behaviours, and teaching her ways of communicating with others.” The arbitrator found that C’s treatment with BACA was demonstrating positive results, including a diminution of C’s self-injurious behaviours and an increase in her ability to communicate.

[7] The parties separated about a year after the move to Indianapolis, when Joelle learned from her brother and father of David’s sexual activities in Ontario. Her parent and sibling had entered the matrimonial home, ostensibly to feed the family cats, while David was visiting Joelle and the children in Indiana. However the brother and father removed computers and other electronic items that suggested David’s infidelity. Joelle later learned that David had installed spyware on her phone and digital devices.

[8] Joelle felt betrayed by the revelation of what she described as David’s “double life” and “risky” behaviour. She soon commenced family law proceedings in this court. For about three months after the separation, Joelle was uncooperative in allowing David to contact the children. This period ended at about the end of August 2015.

[9] In addition to this litigation, David is presently engaged in unresolved litigation with Joelle’s family members arising from the removal of his electronic documents. In June 2018, he added Joelle as a party to that litigation. At the time of the arbitration, that litigation remained unresolved.

[10] On January 26, 2016, Gibson J. referred the issues in this proceeding to arbitration. In the same order, Gibson J. ordered that psychologist, Dr. Irwin Butkowsky, conduct a s. 30 assessment. During the course of his assessment, the parties requested that Dr. Butkowsky assist the arbitrator in attempting to mediate a solution to their parenting issues. The assessor reluctantly agreed to engage in that unusual process. His consent was predicated on the parties’ explicit agreement that if the mediation process fails, as it did, no party would object to his continuing the assessment process or even raise the issue.

[11] Dr. Butkowsky ’s 90-page report and oral evidence were important elements in the arbitrator’s analysis of the children’s best interests. While the arbitrator did not rely on Dr. Butkowsky’s recommendations to arrive at his award, he did place great weight on the expert’s interviews and clinical observations.

[12] The arbitrator made a multidirectional parenting award that required the children to be returned to Ontario upon the earliest occurrence of a number of circumstances, and in any event by May 31, 2020, at the latest. Until then, the children would remain in Indiana in Joelle’s the primary care. Upon their return to Ontario, the children will continue to primarily reside with Joelle, subject to less than equal parenting time with David.

[13] The arbitrator awarded the parties joint custody and joint decision making with regard to major issues. But if the parties are unable to agree after consultation and discussion, Joelle was granted the right to make the final determination on that major issue.

[14] The award further states that if Joelle does not relocate to the GTA with the children upon the happening of one of the dates set out in the award, they shall be placed in David’s primary care until she does relocate. If Joelle does not relocate to the GTA by August 15, 2020, David will be granted final primary care, subject to variation in the event of a material change on circumstances.

[15] In line with his decision to award Joelle primary residence of the children within the GTA, the arbitrator granted the parents differing rights of first refusal. If Joelle is unable to care for the children overnight during her parenting time, she shall offer David the right of first refusal to care for the children, failing which she is required to make her own arrangements. David has a reciprocal obligation to offer Joelle a right of first refusal. However, David’s obligation to offer Joelle a right of first refusal comes into play when he is unable to care for the children for four hours or more.

[16] One of the key reasons that the arbitrator required the return of the children to the GTA was his finding about the treatment available to C in Toronto. He found that that an autism treatment facility in Toronto, the New Haven Learning Centre (“NHLC”), can offer Applied Behavioural Analysis autism treatment to C that is equivalent to the high level, intensive treatment offered at C’s Indiana treatment centre, BACA.

[17] The arbitrator found that “[i]t is now possible for BACA to pass on the key to C’s learning to the NHLC and for C’s progress to continue in a community where long term plans can be made with the support of her parents, brother, family and friends in the country of her origin.” A transition timetable would have to be established between BACA and NHLC “so as to minimize disruption in the learning process and to transfer, to the extent possible, C’s confidence and relationship with her workers at BACA to their equivalent at NHLC.” The arbitrator stated that NHLC requires at least 60 days’ notice of any programme commencing for C.

[18] A key reason that the arbitrator required the children to return to Ontario was his finding that D’s best interests required a return to the GTA. D deeply missed his father, David. The arbitrator writes that in speaking to Dr. Butkowsky, D “clearly expressed a wish to return to reside in Toronto in order to see his father more frequently, as well as his family and previous friends.” D also candidly admitted to the assessor that he would miss his Indiana school and friends as well. Dr. Butkowsky felt that D’s wishes were independent. The arbitrator agreed with that view.

[19] D suffered from emotional problems that arise in part from his distance from his father and extended maternal family in the GTA. Commencing in or about December 2015, Joelle took D to see a Dr. Hill-Birk at the Community Health Network in Indiana, in part in regard to D’s ADHD. Dr. Hill-Birk did not testify but her notes were placed in evidence on consent. I could find no references to Dr. Hill-Birk’s specialty in the record.

[20] Dr. Hill-Birk’s September 15, 2016 note indicates Joelle’s: “… concerns about behaviour says he has ‘evil voice in head that tells him not to talk to dad’ and that he ‘has daydreams that dad is getting shot’”. Dr. Hill-Birk’s January 26, 2017 note states that D “[s]ays he has voices in head that tell him not to call daddy.”

[21] A consistent theme in Joelle’s consultations with Dr. Hill-Birk was her concern about D’s defiance and the adverse effects of the “[c]ontentious divorce and custody battle going on”.

[22] Evidence was also presented to the arbitrator that in or about March 8, 2018, D had spoken of suicide to his teacher and school principal. D’s comments about actual attempts at suicide seemed fanciful. But what concerned the school principal was that D stated that “…I think that things would be better for everyone if I’m not around”. This evidence came in the form of an email from the principal to the parties, which although hearsay, was admitted into evidence in the arbitration hearing.

[23] D was ultimately referred to a social worker, Stephen Woock. Mr. Woock’s note of his initial intake interview of November 7, 2018, admitted on consent into evidence, reports that D:

…cries easily and often, has trouble sleeping, and has few friends.

…disclosed feeling angry with parents for getting divorce…

…presents today with Anger, School problems Family conflict. Depression Screening depressed mood. ADHD Inattention, Hyperactivity, Impulsivity, Significant Impairment in: Social functioning and Academic functioning, with Depressed mood, With Anxiety With Conduct.”

[24] Mr. Woock’s notes of subsequent sessions referred to D’s feelings of anger (particularly at his mother) and powerlessness with his situation. D also expressed ambivalence about a trip to visit his father. But Mr. Woock’s final note of March 27, 2019 spoke of David attending the session that day with D. The child was “…happy and enthusiastically hugged dad”, who had driven all night to visit for the spring break.

[25] Dr. Butkowsky‘s clinical impressions of D aligned with those of Mr. Woock.

[26] The arbitrator delayed the date for the children’s return to Ontario because 1) D had already commenced his school year, 2) it was necessary to arrange for a transition plan between BACA and NHLC, and 3) Joelle needed some time to arrange housing in Ontario.

[27] While the parenting issues were the key ones between the parties, the arbitrator make a number of significant findings regarding property, equalization and support issues between the parties. I will deal with those findings and the terms of his award in a subsequent endorsement.

Stay of Parenting Provisions of the Award

[28] In light of the closing of NHLC because of the pandemic, I granted a stay of the parenting provisions of the award on May 26, 2020 (2020 ONSC 3277). I also granted the parties leave to enter the following affidavits into evidence, those of: Joelle sworn May 5, 2020 and May 16, 2020; Erin Orr, sworn April 16, 2020; Brigitte Barsalou, sworn May 5, 2020 (regarding the commissioning of Joelle's affidavit of May 16, 2020), and David, sworn May 14 and May 18, 2020.

Order of Coats J. of July 14, 2020 re Summer Parenting Schedule

[29] The children have continued to primarily reside with Joelle in Indiana other than in the times that they have been with their father, whether in Indiana or Ontario. For the summer of 2020, the parties agreed to an order of Coats J. that varied my May 26, 2020 Order upon the following terms:

1. D shall be in the care of David from Monday, July 6, 2020 until Sunday, August 16, 2020 which parenting time may take place in Indiana and in Ontario, as determined by David. For clarity, David shall be entitled to travel to Ontario with D during this period provided that the child is returned to Indiana by August 16, 2020.

2. C shall be in David’s care in Indiana from Monday, July 6, 2020 until such time as he leaves for Ontario with D in accordance with the previous paragraph.

3. D shall be in the care of Joelle from August 17, 2020 to August 19, 2020 and C shall be in David’s care in Indiana for the same period.

4. D and C shall be in David’s care in Indiana from August 19, 2020 to August 30^th, 2020 or longer if David so advises Joelle. Notice that David will be exercising parenting time in Indiana beyond August 30^th, 2020 will be provided to Joelle by August 16^th, 2020.

5. While in David’s care in Ontario, he shall be entitled to take D for a psycho-educational assessment with Dr. Bridgman which had originally been scheduled for July 13, 2020 and July 15, 2020, which dates had to be rescheduled due to D’s delayed arrival in Ontario. The assessment has been rescheduled to July 28, 2020 and July 30, 2020, or to such other date to take place before August 16, 2020.

6. Pending the determination of the appeals, the children’s residency schedule, subsequent to August 30, 2020, including parenting time in Ontario, shall otherwise be as agreed by the parties. In the event the parties are unable to agree on any such schedule, either party shall be entitled to bring the matter back before the court by way of motion for determination of the issue.

7. The costs of the motion were reserved to the completion of the appeal.

Issues

[30] This appeal raises the following parenting issues:

1. Did the arbitrator err by ordering that the children return to the GTA?

2. Did the arbitrator err in granting Joelle primary care, final decision making and differing rights of first refusal when the children return to the GTA?

Standard of Review

[31] Because there was some dispute in the materials regarding the scope of appellate review in this case, I will explain what I understand to be the applicable standard. I note first of all that the arbitration agreement limits the scope of appellate review to errors of law and mixed fact and law.

[32] In Rosenberg v. Yanofsky, 2019 ONSC 6886, Desormeau J. offered an excellent review of the law regarding the standard of review of the decision of an arbitrator in a family law proceeding. She wrote:

7 The decision of an arbitrator deserves as much deference on appeal as does a decision of a trial judge: Palmer v. Palmer, 2010 ONSC 1565 (Ont. S.C.J.) at para. 3 (cited in Reati v. Racz, 2016 ONSC 1967, at para. 28)

8 In reaching an award, an arbitrator sits in the same position as a judge in a lower court when a decision is appealed to a higher court, and for a decision to be overturned on appeal, the appellate court must find that the reasons amount to an error [in] law and that the decision is not correct, or that a palpable and overriding error was made on a question of mixed fact and law: Gray v. Brusby, 2008 CarswellOnt 4045 (Ont. S.C.J.) at para. 27, and Palmer, supra, at para. 5, cited in Reati v. Racz, 2016 ONSC 1967, at para. 29.

13 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: O'Connell v. Awada, 2019 ONSC 273, at para. 9, citing with approval Robinson v. Robinson, [2000] O.J. No. 3299 (Ont. S.C.J.), at para. 5.

[33] Desormeau J. cited these comments from Housen v. Nikolaisen, 2002 SCC 33 (S.C.C.), regarding the appellate test when dealing with questions of mixed fact and law:

h) a question of mixed fact and law involves the application of a legal standard to a set of facts; where a decision-maker applies the wrong law to a set of facts, then this will constitute an error of law subject to the standard of correctness (para. 27); and

i) matters of mixed fact and law lie along a spectrum; where a legal principle is not readily extricable so as to characterize the error as an error of law subject to the standard of correctness, then the matter is a matter of mixed fact and law subject to the more stringent standard of palpable and overriding error (paras. 36-37).

[34] In Van de Pere v Edwards, 2001 SCC 60, 2001 S.C.J. No. 60, Bastarache J. spoke for the Supreme Court of Canada in reminding appellate courts that the narrow scope of appellate review applies in family law cases, including those dealing with custody and access. He wrote at para. 12 that:

The narrow power of appellate review does not allow an appellate court to delve into all custody cases in the name of the best interests of the child where there is no material error as decided in Hickey. The Court of Appeal is not in a position to determine what it considers to be the correct conclusions from the evidence. This is the role of the trial judge.

[35] At para 13, Bastarache J. explained the reasons for appellate deference when dealing with custody and access cases. He wrote of the need for finality in those cases. In addition:

Custody and access decisions are inherently exercises in discretion. Case-by-case consideration of the unique circumstances of each child is the hallmark of the process. This discretion vested in the trial judge enables a balanced evaluation of the best interests of the child and permits courts to respond to the spectrum of factors which can both positively and negatively affect a child.

Issue No. 1: Did the arbitrator err by ordering that the children return to the Oakville area?

[36] Joelle seeks an order reversing the arbitrator’s determination that the children return to Ontario from Indiana, where they have lived with her since 2014. Joelle wishes to remain in Indiana with the children indefinitely, primarily to provide autism treatment for C at BACA. Her central arguments are that:

1. The arbitrator failed to prioritize the children’s best interests to the Divorce Act‘s “maximum contact principle”;

2. The arbitrator erred by failing to defer to her parenting position;

3. The arbitrator failed to recognize a number of procedural and substantive flaws in Dr. Butkowsky‘s assessment, and offered the assessor’s observations undue weight;

4. The arbitrator erred in finding that her move to Indiana was a temporary one.

5. The arbitrator erred in imposed differing standards of scrutiny on Joelle and David’s evidence;

6. The arbitrator improperly relied on demeanor evidence.

[37] Before I review those arguments, it is important to recall, as set out immediately above, that this appeal is not a trial de novo. The issue is not whether I would have weighed the evidence differently than the arbitrator or come to a different conclusion on that evidence than he. It is not whether I would have exercised my discretion in the same manner as the arbitrator. Rather the issue is whether the arbitrator, in weighing that evidence, drawing his conclusions and exercising his discretion, made any error of law, applied the law wrongly to the facts of and/or whether he engaged in any palpable and overriding error on a question of mixed fact and law.

[38] It is through this lens that I must consider the arguments made in regard to all of the issues raised in this appeal. The standards set out above are particularly apposite to the parenting issues, where the weighing of evidence, determinations of credibility and decisions regarding the best interests of the children occupy the central focus.

[39] In short and as set out below, I uphold the arbitrator’s parenting award. I do so because I find that the arbitrator’s decisions to require the return of the children to Ontario, and with regard to their parenting arrangements when they do so represent no error of law or mixed fact and law. In short there is no basis to overturn his findings. Saying that, I turn to each of the parties’ arguments against the arbitrator’s award.

1. The arbitrator did not fail to prioritize the children’s best interests to the “maximum contact principle”

[40] Under s. 16(8) of the Divorce Act, the exclusive consideration in parenting decisions is the best interests of the children. It states:

(8) In making an order under this section, the court shall take into consideration only the best interests of the children of the marriage as determined by reference to the conditions, means, needs and other circumstances.

[41] The arbitrator committed no error of law in his application of the best interests principle. He correctly, frequently, and consistently asserted that his parenting decisions were guided by the best interests of the children, as mandated by s. 16(8) of the Divorce Act. He also properly took guidance from the detailed best interests factors set out in s. 24(2) of the Children’s Law Reform Act (see Jackson v. Jackson, 2017 ONSC, at para.60)

[42] By my count, the arbitrator mentions the term “best interests” 51 times in his decision. Further, his very in-depth review of the evidence and the factors that he relied upon to arrive at his decision, including the unique circumstances of each child, show an appreciation of the “conditions, means, needs and other circumstances” of both children.

[43] The arbitrator also demonstrated an understanding of the delicate interplay between the needs and abilities of each child and the relationship of each child to each parent. He set out the special needs of each child and treatment accorded to them, and in particular C, in great detail. He understood that C’s relationship to her mother was far stronger than that to her father, but that D’s bond with his father was closer than that of his sister. On the other hand, D has a far stronger need to return to Ontario than his sister. But he found that C’s needs can be met by a transfer of her treatment from BACA to NHLC, provided that a proper transition plan was in place. That finding was available to him on the evidence.

[44] In exercising his discretion to find that the best interests of the siblings before him may not fully overlap, the arbitrator was following the comments of L'Heureux-Dubé J. in Young v Young, 1993 34 (SCC), [1993] S.C.J. No. 112 (S.C.C.), at para. 74, that:

The wide latitude under the best interests test permits courts to respond to the spectrum of factors which can both positively and negatively affect a child. Such discretion also permits the judge to focus on the needs of the particular child before him or her, recognizing that what may constitute stressful or damaging circumstances for one child may not necessarily have the same effect on another.

[45] In making his award, the arbitrator properly referred to s. 16(10) of the Divorce Act, which refers to both the maximum contact principle and the friendly parent principle. That provision states:

Maximum contact

(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

[46] The wording of the DA s. 16(10) explicitly subordinates the maximum contact principle to the child’s best interests. The principle is to be honoured only to the extent that it is “consistent” with the child’s best interests. That point was emphasised by L’Heureux-Dube J., writing in dissent on the result but not in her analysis of best interests in the seminal Supreme Court of Canada decision, Young v. Young, 1993 34 (SCC), [1993] S.C.J. No. 112 (S.C.C.). As L’Heureux-Dube J. wrote, beginning at para. 40:

Thus, it is clear that maximum contact is not an unbridled objective, and that it must be curtailed wherever the welfare of the child requires it. The best interests of the child remain the prism through which all other considerations are refracted.

53 I am in agreement with my colleague that s. 16(10) indicates that Parliament has expressed its opinion that contact with each parent is valuable. On the other hand, it must also be recognized that the goal of maximum contact is not absolute and that access may be restricted where there is evidence that such contact would otherwise conflict with the best interests of the child. This limitation on maximum contact is both abundantly clear on a straightforward reading of the section and consistent with the spirit of the Act and its focus on the best interests of the child. In my view, the analysis may and should stop at this point.

[47] Having cited and even relying on s. 16(10), the arbitrator was clear and correct in stating at para. 146 of his award, that the best interests of the children is the “paramount consideration in making a custody order” under the Divorce Act. He also correctly described the maximum contact principle as a “second mandatory consideration” under s. 16 (see Berry v. Berry, 2017 ONCA 705, at para. 27). The arbitrator also cited the decision of the Ontario Court of Appeal in Rigillo v Rigillo, 2019 ONCA 548, which held that courts determining custody and access issues must advert to the maximum contact principle. The failure to do so is a reversable error of law.

[48] Nonetheless, at para. 207 of the Award, the arbitrator adopted a number of appellate cases that held that, in his words, the maximum contact principle Is “mandatory although not absolute in that the judge is only obligated to respect it to the extent that such, contact is consistent with the child’s best interests“.

[49] Despite those references, the mother also argues that the arbitrator failed to properly weigh the children’s best interests, including the relevant but subordinate maximum contact principle, properly. She argues that the arbitrator failed to find that David’s plan was focussed on his needs while her plan was focussed on the children. She also argued that her plan better represented continuity of care for the children. David disagrees and points out that there was evidence that allowed the arbitrator to find that her position also arose out of her personal needs.

[50] The arbitrator was well aware of those arguments and clearly considered them. He appropriately cited with approval J.B.H. v T.L.G., 2014 29737 (ON SC) (Ont. S.C.J.) at paras. 352 to 356, where Lafreniere J. wrote of the need to take a “child focussed approach” to children’s best interests, rather than the parents’ perceptions of their rights or interests, as parents (see also Jackson v. Jackson, above, at para. 56). He was able to cite evidence regarding the motivations of each parent (including Joelle’s post-separation feelings about David and her desire to begin a new life in Indiana) as well as the strengths and weaknesses of their plans from the perspective of children’s best interests.

[51] I add one final note regarding the maximum contact principle. Recent amendments to the DA that are scheduled to come into force on March 1, 2021 will eliminate the terms “custody” and “access from the legal parenting lexicon. It will also offer a list of specific best interests factors for a court to consider within the context of the primary consideration of “... the child’s physical, emotional and psychological safety, security and balancing and well-being.”. Nonetheless, the maximum contact principle will remain a mandatory consideration, as set out in the soon-to-be amended s. 16(6), as follows:

(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.

[52] In other words, even if these amendments were in force at the time of the hearing, the arbitrator would have been required to give effect to the maximum contact principle, as consistent with the children’s best interests, which he did.

2. The arbitrator did not err by failing to defer to Joelle’s parenting position

[53] Joelle’s further argument with regard to best interests is that the arbitrator should have deferred to her position because she is the children’s “custodial parent”. Joelle cites Gordon v. Goertz, 1996 191 (SCC), [1996] 2 SCR 27 at para. 48 for the proposition that “when considering a relocation application, deference is owed to the views of the custodial parent”. However that quote, as set out in her factum, is misleading because it omits the context and the first words of the paragraph quoted.

[54] In the previous paragraph, McLachlin J., as she then was, wrote for the majority of the Supreme Court of Canada:

47. For those reasons, I would reject the submission that there should be a presumption in favour of the custodial parent in applications to vary custody and access resulting from relocation of the custodial parent.

[55] The full context of the following paragraph, which Joelle quotes in part, reads in full:

48. While a legal presumption in favour of the custodial parent must be rejected, the views of the custodial parent, who lives with the child and is charged with making decisions in its interest on a day-to-day basis, are entitled to great respect and the most serious consideration. The decision of the custodial parent to live and work where he or she chooses is likewise entitled to respect, barring an improper motive reflecting adversely on the custodial parent's parenting ability.

[Emphasis added]

[56] The first clause of the first sentence of paragraph 48, only as modified by the rest of the sentence, remains the law today.

[57] While she is presently the de facto primary caregiver of the children, Joelle is not their custodial parent. No order or award grants her that status. In fact, the temporary order of Trimble J. of December 9, 2015 calls for joint custody of the children. As the arbitrator was entitled to find, the decision to move to Indiana with the children was a joint and temporary one. The joint intent was that Joelle and the children would return to Ontario.

[58] Further, the Supreme Court was very clear in Gordon v. Goertz that the sole consideration in mobility cases is the children’s best interests. As McLachlin J. wrote at para. 50(6): “[t]he focus is on the best interests of the child, not the interests and rights of the parents.”

[59] While Joelle refers to amendments to the Divorce Act with regard to relocation questions, those provisions were not in force during the arbitration and are yet to come into force.

[60] Here, the arbitrator had before him evidence that allowed him to come to the main conclusions that the children’s overall best interests, while not perfectly aligned, collectively supported a return to Ontario. The arbitrator offered Joelle’s plan great respect and the most serious consideration. He implicitly and explicitly accepted that both plans had elements that would provide structure, consistency and predictability to the children. But he ultimately found that D’s interests would be best met under David’s plan while those of C could be equally met under either plan. Since it was not in the interests of the children to be separated, the balance was tipped in favour of a return to Ontario.

[61] I see no palpable or overriding error in regard to any of those findings. They were supported by the evidence and represented no error in principle. The arbitrator’s finding is entitled to deference.

3. The arbitrator did not fail to recognize a number of procedural and substantive flaws in Dr. Butkowsky‘s assessment, nor did he offer the assessor’s observations undue weight

[62] Joelle makes two sets of arguments with regard to Dr. Butkowsky’s evidence. First, she argues that Dr. Butkowsky’s assessment methodology was flawed because he took on a second, mediator’s role, at the parties’ explicit request. In that role, he attempted to assist the parties and arbitrator to resolve their parenting issues. Thus, he was aware of the parties’ settlement positions when the unsuccessful mediation process ended and the assessment resumed. Further, the process was delayed by the period during which the parties mediated. Dr. Butkowsky admitted at the hearing that the process may have “impacted the reliability and validity of the findings”. He also questioned whether he would embark in such a process again.

[63] Joelle neglects to mention a fact cited by the arbitrator. As the arbitrator noted, Dr. Butkowsky engaged in the bifurcated process “…at the urging of the parties and on condition that he will continue with the assessment process if the mediation sessions are not successful.”

[64] Thus, Joelle objects to a process that she herself (like David), with the assistance of a leading family law lawyer, twice convinced the expert to accept. The parties and assessor first agreed to the bifurcated process before Dr. Butkowsky took on the mediation role. They agreed again before he resumed his assessment role. There was no objection to Dr. Butkowsky’s re-assuming his assessor’s role after the mediation broke down.

[65] Part of the parties’ agreement was that this dual role would not be raised in the arbitration. Yet, unhappy with his assessment, Joelle did indeed question the process she could be said to have championed.

[66] I also note that the award makes no reference to an objection to Dr. Butkowsky testifying as an expert. Rather, Joelle’s counsel asked the arbitrator to place little weight on Dr. Butkowsky’s evidence.

[67] Joelle has cited no authorities that would point to any impropriety in Dr. Butkowsky’s role in this proceeding or any ground to disregard his evidence. I note as well that Dr. Butkowsky had once before engaged in a process similar to that in this case. In M. v. F., 2015 ONCA 277, the Ontario Court of Appeal considered his evidence despite that dual role. It found no error in the trial judge preferring the evidence of Dr. Butkowsky to that of another expert who critiqued Dr. Butkowsky’s report. In saying that, I also note that no objection appears to have been raised in that appeal regarding the assessor’s dual roles.

[68] Joelle criticized the delays that the mediation process engendered in the assessment process and the further delay between the dates of the Butkowsky report and his testimony at the arbitration. In addition, she criticized Dr. Butkowsky’s failure to attend at her home or BACA when he was conducting his interviews in Indianapolis. She points out that the endorsement of Gibson J. called for the assessor to travel to Indiana as part of his assessment. Another assessor was to be chosen if Dr. Butkowsky could not engage in the travel.

[69] Dr. Butkowsky explained that he had a method of interviewing and observing parents with children in a setting with a two-way mirror so that he could observe them. He undertook the same process with both parents.

[70] The lengthy time of the bifurcated assessment offered advantages as well as disadvantages in his assessment. As Dr. Butkowsky pointed out, it allowed the assessor the opportunity to observe the parents and children over a greater period of time than would be available during a normal assessment.

[71] In any event, the arbitrator was fully alive to the dual roles of Dr. Butkowsky. He was also alive to Joelle’s criticisms of Dr. Butkowsky‘s methodology and the delays that she cites. He considered the limitations that the bifurcated and extended assessment process imposed on Dr. Butkowsky. He made clear that he was not delegating his decision-making to the expert. In fact, he did not rely on the assessor’s findings and recommendations in coming to his own conclusions. He wrote at para. 140 of his decision that:

I am mindful that a judge or an arbitrator is not to delegate her determination of the issue with respect to custody of the children and ancillary rights and obligations by adopting the views of the third party professional who prepared the assessment. See the case of Johnson v Cleroux, (2002) 2002 37304 (ON CA), 23 RFL (5th) 176 (OntCA) and Strobridge v Strobridge, (1998) 1994 875 (ON CA), 4 RFL (4th) 169 (OntCA)).bifurcated, and conducted over a prolonged period of time, that this could have impacted the reliability of his findings. I have been mindful of this. What I have found the most helpful about Dr. Butkowsky’s evidence, are not his findings or recommendations, but his factual and clinical observations based on his interactions with the parents and the children.

[Emphasis added]

[72] In short, the arbitrator chose what of the assessor’s evidence was helpful and disregarded the rest. His decision to place weight on Dr. Butkowsky’s factual and clinical observations is supported by the assessor’s unquestioned qualifications and his own finding that the assessor “…gave evidence in a fair, balanced and straightforward fashion.”

[73] The arbitrator also observed the extent to which Dr. Butkowsky’s findings regarding D’s needs, including a return to Ontario, matched up with the observations of Stephen Woock, the social worker to whom Joelle took D for therapy in Indiana. He was also aware that Joelle’s sanguinary picture of D and his contentment in Indianapolis is not supported by the statements that she made to Mr. Woock when bringing the child in for treatment. I add that the same can be said regarding her statements to Dr. Hill-Birk.

[74] These were all findings available to the arbitrator on the evidence.

[75] I add that it is not clear how Dr. Butkowsky’s attendance at BACA or Joelle’s home would have changed his assessment. He had no question as to the merits of the BACA programme or Joelle’s parenting abilities. At best, those attendances would have confirmed the positive views he expressed in his report and evidence.

4. The arbitrator had evidence available to find that Joelle’s move to Indiana was a temporary one

[76] Joelle states that the arbitrator erred in finding that her stay with the children in Indiana was a temporary one. This ground appears to relate to a finding of fact rather than mixed fact and law and is thus inapplicable to this appeal. In any event, there was no palpable and overriding error in that finding. The arbitrator had before him sufficient evidence attesting to the temporary nature of her stay in Indiana to allow him to make that finding. Much of that evidence came from Joelle herself.

[77] On September 22, 2014, Joelle swore an affidavit for U.S, immigration authorities that stated:

The specialists, as well and David and I, believe an early intervention treatment plan at BACA is our best chance to reduce the impact of C’s disability and we want to give our daughter the best chance possible to succeed. I value this opportunity and attend all free parent trainings at BACA so that I can prepare to take C back home to Canada.

[Emphasis added]

[78] In another affidavit for immigration purposes, sworn June 2, 2016, Joelle swore:

Although I am in the States with C and D for C to receive medical intervention, we do not intend to remain in the States. The children’s father and I are going through a divorce and will need to work out a custody arrangement and visitation. We also have two (2) homes in Toronto. In terms of residence, our family home is jointly owned by me and is occupied by my children’s father at this time, with our two (2) family pets. I have every intention of keeping the family home so my children will return to their home, neighbourhood, friends and my son’s same school upon our return. The second home is rented for additional income. David is in Canada, as his place of employment is there and he has no intention of moving or being apart from the children on a permanent basis.

This situation, being separated from my family and friends and the children from their father for long stretches of time and having my children in unfamiliar schools in an unfamiliar city, is not ideal. However, we understand it is temporary but are committed to finding the best treatment for C, as the alternative will likely involve an institution.”

[Emphasis added]

[79] Joelle repeated these statements in an affidavit of November 29, 2016.

[80] Joelle points out that her U.S. immigration lawyer testified that non-immigration visas, like those obtained by Joelle, are by their nature “not permanent”. In fact, a person can “stay many, many, many, many years in the United States” on such visas, as Joelle has done. Nonetheless, the plain words of her affidavits about intending to return to Canada cannot be ignored. These statements support David’s evidence of the planned temporary nature of the stay in Indiana.

[81] Perhaps the strongest factor in support of the arbitrator’s finding was not cited in his award. In her Application, issued in this court on June 10, 2015, Joelle pleaded:

On or about March 2014, the Applicant/Mother and the two children of the marriage moved to Indiana, USA, on a temporary basis, for medical care for their daughter, C.

[Emphasis in original]

[82] In Kabutangana v. Coachman Insurance Co., 2017 ONSC 1594, at para. 23, Mitchell J. (citing Hughes v. Toronto-Dominion Bank, 2002 CarswellOnt 1544 (Master) at para. 10), defined an admission as "...an unambiguous deliberate concession to the opposing party." Mitchell J. also cited the definition of that concession in Soxonchuk v. Polych [2011] O.J. No. 449 at para. 10, as follows: "[i]n order to constitute an admission in a pleading under our Rules, the admission must be both unambiguous and deliberately made by the party pleading it as a concession to its opponent."

[83] The statement of the temporary nature of Joelle’s move to Indiana in her pleading is clearly an admission. It is unambiguous and deliberate. It clearly operates as a concession as to the nature of the move to Indiana. Under r. 22 of the Family Law Rules, “[a]n admission that a fact is true …contained in a document served in the case... may be withdrawn only with the other party’s consent or with the court’s permission.” Here nether consent nor permission were granted.

[84] I also note that the order of Trimble J. of December 9, 2015 prohibits Joelle from applying for any further US visa extensions without David’s consent. As David has pointed out, that term appears to have been honoured in the breach.

[85] In the context of all of the evidence, it was open to the arbitrator to find that the stay in Indiana was intended to be a temporary one and that the parties’ joint plan had been to return with the children to Canada.

5. The arbitrator did not impose differing standards of scrutiny on Joelle and David’s evidence

[86] Joelle argues that the arbitrator imposed a stricter level of scrutiny on her evidence than that of David. While that can be an error in law, as I read them, her arguments actually ask this court to rebalance the factors that the arbitrator relied upon to arrive at his decision.

[87] Joelle complains that the arbitrator made “allowances” to David, by not referring to in his decision to certain statements he made in cross-examination. She is particularly critical of the arbitrator’s limitation of her cross-examination of David’s sexual practices. She raises that concern notwithstanding s. 16(9) of the Divorce Act, which directs the court not to rely on “the past conduct of any person unless the conduct is relevant to the ability of the person to act as a parent of a child”. She claims that such evidence is relevant to whether he was honest with Dr. Butkowsky about his sexual practices. She adds that that evidence would have been relevant to his parenting ability.

[88] The rebalancing of evidence that Joelle calls for is not available to this court, both under the arbitration agreement and under this court’s proper scope of review as set out above. Further, I agree with the arbitrator that David’s sexual practices, while he was in Ontario and Joelle was in Indiana, should play no part in the determination of parenting issues.

[89] In any event, the arbitrator was more than fair to Joelle in considering each party’s evidence. He offered her unqualified praise her for her parenting abilities and dedication. He even spoke of her parenting abilities being superior to those of David. His parenting decision was based on what he understood to be in the children’s best interests as set out above, not any adverse finding in regard to Joelle or improperly considered view of David. I give no effect to this argument.

6. The arbitrator did not improperly rely on demeanor evidence

[90] Joelle argues that the arbitrator improperly relied on demeanor evidence to determine that Joelle would return the children if he ordered their return to Canada. This argument is intermingled with a number of Joelle’s other arguments regarding deference to her decision as the children’s primary caregiver, differing standards of scrutiny for the parties (the arbitrator says nothing about David’s demeanor), whether she was “daring” the arbitrator to make an order that she did not accept, and over-reliance on Dr. Butkowsky’s observations.

[91] Joelle argues that the arbitrator set the stage by commenting on her surprising testimony about her indecision regarding a return to Ontario if the children were required to do so. She had neither raised that prospect before the hearing nor did she, at the hearing, commit to anything but uncertainly about her intentions should the children be required to return.

[92] The arbitrator wrote that Joelle’s expression of the possibility that she may not join the children drew “… a collective gasp of incredulity by all those hearing that position for the first time.” The arbitrator went on to cite David’s argument that perhaps Joelle’s ostensible indecision is “… part of a Machiavellian strategy … to essentially ‘dare’ the arbitrator to place the children out of her day-to-day care recognizing the enormous negative impact that that would likely have on the children.” The arbitrator was clear that “I do not subscribe to that theory.”

[93] The arbitrator then made two further comments about demeanor, which were not determinative of his findings, let alone his ultimate decision. The first related to an answer by Dr. Butkowsky regarding his opinion on whether Joelle would return to Ontario with the children. The arbitrator wrote:

228. When Dr. Butkowsky was asked to comment on Joelle’s position that she might not move back to Ontario with the children if an award is made requiring the children to come back to Canada, his answer essentially was that Joelle will not do that. In making that response, I noted that a slight smile on Dr. Butkowsky’s face which to me conveyed the message that Joelle might be saying that for her own reasons but that her dedication to the children will prevail and that she is not going to abandon them. [Emphasis added]

[94] Joelle is correct that courts should be careful about over-reliance on demeanor evidence. But such evidence is admissible. In R. v. Bent, 2016 ONSC 6388, Hill J. spoke of the equivocal place of demeanor evidence in the assessment of credibility. He wrote at para. 112:

Assessment of a witness' credibility includes evaluation of his or her demeanour as testimony is provided to the trier(s) of fact in the courtroom — this includes "non-verbal cues" as well as "body language, eyes, tone of voice, and the manner" of speaking: R. v. N.S. (2010), 2010 ONCA 670, 2010 CarswellOnt 7640, 102 O.R. (3d) 161 (C.A.), at paras. 55, 57, affd 2012 SCC 72, 2012 CarswellOnt 15763, [2012] 3 S.C.R. 726. However, a trier's subjective perception of demeanour can be a notoriously unreliable predictor of the accuracy of the evidence given by a witness ...

[95] The Ontario Court of Appeal summed up the present state of the law in regard to demeanor evidence in R. v. Slater, 2018 ONCA 962, stating at para 74 that demeanor evidence “…is merely one factor to be considered in assessing credibility and not to be given undue weight… Indeed, juries are commonly instructed to this effect.”

[96] In R. v. Giroux, 2017 ABCA 270 at para. 7, the Alberta Court of Appeal stated that "the line is crossed ... when a trial judge's assessment of the witness' demeanour becomes the sole or dominant basis for determining credibility, and where the trial judge appears to be unaware of the risks associated with over-reliance on demeanour".

[97] Here, where the arbitrator referred, colourfully and perhaps unnecessarily, to the “collective gasp”, he did so to illustrate the notion that Joelle’s professed indecision represented a surprising change in her plan. Strictly speaking, that was not a demeanor characterization as the arbitrator was not referring to Joelle’s demeanor. Rather he was illustrating the newfound nature of Joelle’s professed indecision. While the arbitrator referred to David’s uncharitable characterization of that portion of Joelle’s evidence, he rejected it, offering instead a very positive characterization of Joelle’s dedication to her children.

[98] The arbitrator’s observation of Dr. Butkowsky’s demeanor when giving his evidence accorded with the expert’s answer itself. That answer, in turn, accorded with the arbitrator’s own observations and findings. He wrote:

229. Based on the evidence and my observations of the mother, I agree with Dr. Butkowsky. I do not doubt that there is a part of her who is concerned about C’s potential regression if she moves back to Ontario. I also heard her anxiety around the prospect of the New Haven Program not working out for C and then not being able to turn back the clock by re-entering the United States to live and for C to go back to BACA. I think that it was in that context that Joelle mused about not moving to provide C with a safety net if things fall apart, as Joelle believes might happen due to her lack of faith in David’s ability to care for C consistently.

[99] Clearly the reference to Dr. Butkowsky’s demeanor when testifying was far from determinative. Essentially, all of the arbitrator’s references to demeanor were simply illustrative of his own finding that Joelle was so dedicated to her children that she would not essentially abandon them if they were required to return to Ontario. That finding was available to him based on all of the evidence, including that of Joelle’s history of care for the children, his finding regarding the temporary nature of the stay in Indiana, her testimony at the hearing, and that of Dr. Butkowsky.

Conclusion Regarding the Children’s Return to Ontario

[100] The arbitrator’s decision regarding the return of the children to Ontario is entitled to deference as it was based on neither an error in law nor a palpable and overriding error in an issue of mixed fact and law. Accordingly, I dismiss Joelle’s appeal with regard to the terms of the award regarding the return of the children to Ontario.

[101] However, as I stated in my stay decision, the terms of the children’s return were premised on a pre-COVID-19 world. I granted my stay of the parenting terms of the award in large measure because they could not be carried out at that time without risking the best interests of the children. NHLC was closed and was suggesting that C remain in Indiana at BACA until NHLC could accommodate C.

[102] Since the time of my stay order, the Ontario government has decided that schools will open. The province’s pandemic lockdown is now in phase three. I am unaware of the status of NHLC, whether any transitional planning between it and BACA has taken place, or how all of this will affect the transition timing called for in the award. Further, D has likely returned to classes in Indiana.

[103] In his clarification award, the arbitrator spoke of the importance of the parents working together to form a “thoughtful and planned transition from Indianapolis to the GTA.” That still needs to occur.

[104] Under s. 134(1)(c) of the Courts of Justice Act, I have broad powers on appeal to “… make any other order or decision that is considered just”. In the process of doing so, I may receive further evidence or direct a reference or trial of an issue (s. 134((4)(b) and (c)).

[105] While upholding the arbitrator’s decision requiring the return of the children to the GTA, I must determine how best to implement it. I will have to vary a number of the deadlines set out in the award. I will require affidavit evidence as to the present status of NHLP and any contact between it and BACA. I will hold a hearing to receive each party’s plan for implementing the award.

[106] In order to get started in that regard, I ask counsel to arrange a telephone/Zoom conference call conference before me. During or following that conference call, I will decide on the process to resolve the implementation of the children’s return to the GTA. I will also set out a process for answering the questions about estoppel in regard to title to the matrimonial home set out below.

Issue No. 2: Did the arbitrator err in granting Joelle primary care, final decision making and differing rights of first refusal when the children return to Ontario?

Parties’ Pre-Hearing Understanding Regarding Arrangements if Children Returned to GTA

[107] David appeals the terms of the award that offer him less than equal parenting rights once the children return to Ontario.

[108] Prior to the commencement of the arbitration, the parties had agreed that if the children were required to return to Ontario, they would engage in an equal, shared, week-about parenting schedule, with changeovers on Sundays. The arbitrator did not grant that arrangement.

[109] Rather, he awarded Joelle primary care of the children in Ontario, with David having less than equal parenting time with the children. That time includes: one overnight per week for D, one different overnight per two weeks for C, and one weekend, from Friday to Monday, for both children together. In addition, the parties will share holidays. Each party will be entitled to two non-consecutive weeks with the children per summer.

[110] The arbitrator set out that schedule within the context of a joint-custody arrangement that allows Joelle the final say in all major decisions should the parties not agree after consultation. He also granted the parties separate rights of first refusal. Only if Joelle does not return to Ontario will David be granted custody of the children.

[111] Joelle does not dispute David’s assertion that the arbitrator did not inform the parties that he was considering such an arrangement before he included it in his award.

The Arbitrator’s Rationale

[112] The arbitrator’s rationale was that the parties remained in conflict and enmeshed in litigation. In separate legal proceedings, David is suing Joelle’s family members. In fact, he added Joelle to his civil lawsuit against her family members just days after Dr. Butkowsky recommended to the parties that the “highly acrimonious [civil] litigation”, cease for the benefit of the children. The arbitrator agreed with that opinion and added that:

Outstanding litigation, between Joelle and her family on the one side, and David on the other, has created a toxic environment in which the family is now immersed and will continue to be engulfed in, soaking the adults and the children in trauma.

[113] In considering the relationship between the parties, the arbitrator did not feel that any “peace treaty” between the parties would be sufficient to actually bring peace to the litigious parties. Further, the arbitrator found that Joelle has been the children’s primary caregiver and decision maker for the past five years. He found that she has generally made decisions after consultation with David, despite David’s assertions of Joelle’s unilateralism.

Appeal Positions of Parties Regarding Parenting in Ontario

[114] David seeks a joint and shared parenting arrangement in Ontario that accorded with the parents’ pre-hearing understanding. That arrangement would give him fully equal parenting rights. It would also see the children change residences between the parents each Sunday on a week-about schedule, him having an equal say in all major decisions and, as set out below, an equal right of first refusal.

[115] David argues that it was improper to change a parenting arrangement agreed upon by both parties. He says in his Memorandum of Argument that Joelle agrees that if her appeal of the requirement to return to Ontario is dismissed, “…the award should be changed to provide for an equal shared residency schedule for the children…”

[116] Joelle’s responding factum is ambiguous on that point. She states that she has taken issue with elements of the arbitrator’s decision and that it certainly merits appellate review. However, it is my understanding from counsel that she no longer agrees that if the children are required to return to Ontario, the parties should engage in a full shared parenting arrangement.

[117] Without taking a clear position in regard to the request, Joelle points out in her factum that Dr. Butkowsky opined that she is the better of the two parents. He described her parenting skills as “excellent” and added that she “related to the children with evident warmth and playfulness” and was “observed to set limits calmly, consistently and effectively.” I note that the assessor also offered praise for David’s parenting, but in a more limited manner. He found that David “displayed generally good parenting skills and appeared sensitive to the needs of both children, however, he appeared inconsistent and, at times, ineffective in setting limits.”

[118] Joelle states, in regard to her plan to remain in Indiana, that it is appropriate for the arbitrator to grant her final decision-making responsibility because of her superior parenting skills, her role as primary caregiver, her success in that role, the conflict between the parties and the parties’ difficulties in communicating.

Case law Regarding Joint Custody with Special Needs Children and Parental Conflict

[119] Joelle cites cases such as Kaplanis v Kaplanis, 2005 1625 (ON CA), 2005 CarswellOnt 266 (Ont. C.A.), Lawson v. Lawson, 2006 26573 (ON CA), 2006 CarswellOnt 4789 (Ont. C.A.) and Jackson v. Jackson, above, for a variety of propositions. In essence, she argues that those authorities say that joint custody is not the default, that the court must carefully consider the ability of the parents to communicate, that it cannot be ordered in the hope that parental communication will improve. Just because both parents are fit parents, as they are here, does not mean that joint custody is appropriate. Those assertions reflect the state of the present state of the law.

[120] Here, the issue raised is not joint custody per se, as the arbitrator ordered it. Rather it involves incidents of joint custody such as final decision making, as well as the actual parenting schedule. I deal below with the issue of differing rights of first refusal.

[121] Joelle argues that these constraints on joint custody orders are accentuated when dealing with children managing complex special needs. That point was emphasised by Sherr J. of the Ontario Court of Justice in Ciutcu v. Dragan, 2014 ONCJ 602, who wrote the following about joint custody orders and special needs children:

33. In Kaplanis, the court emphasizes that it is particularly essential for parents to have good communication when a child is young. The same reasoning applies, if not even more, to special needs children. Their needs are complex and it is essential to their well-being that there should be an effective decision-making process in place for them. For these children, important decisions frequently need to be made about medical treatment, supportive services, education and activities. They need stability and consistency in decision-making and conflict can be particularly harmful for them. See: Kenney v. Kenney, [2007] O.J. No. 2564 (SCJ -- Family Court)."

(see also: Rozpedzik v. Garcia, 2018 ONCJ 38 at para. 55)

Courts not Bound by Positions of Parents in Parenting Matters

[122] In Richardson v. Richardson, 2019 ONCA 983, the majority of the Ontario Court of Appeal found that in making parenting decisions, the court is not limited by the positions that parties take before it or by the terms of their settlement.

[123] In fact, even when presented with a settlement, the court has the authority to review and reject it if it fails to meet the best interests of the child. That is because the court is required to determine any parenting issue before it based only on the child's best interests. Of course, that remedy should be exercised with caution and rarely invoked. Mere disagreement with the agreed upon terms is not sufficient to set them aside. Any decision to set aside an agreement must consider the benefits to the children of a compromise resolution rather than a litigated one. Further, the court must fully explain both the rejection of the parties’ proposed resolution and any reason that the judge did not inform the parties the concerns with their proposed resolution. In that way, the parties can attempt to address them.

[124] In Laliberte v. Jones, 2016 SKQB 192, Danyliuk J. of the Saskatchewan Court of Queens Bench took a very similar approach to that adopted by our Court of Appeal. In considering the right of a court to reject the withdrawal of a custody application, he wrote:

17 First, I note this is a family law matter. It is not a criminal trial, nor a commercial dispute. This is an action involving a child's interests. The court is not obligated to sit idly by and act only as a referee. In family law matters this court frequently exercises its inherent or parens patriae jurisdiction to attempt to do real justice between the parties and for the children, and to ensure that the interests of children (who cannot speak for themselves in these proceedings) are protected. Family law requires a somewhat different perspective than what is required for other legal disputes, not only for adjudicators but for counsel and the litigants as well.

18 This is reflected in legislation, in the rules of court, in judgments, and in the very practice and procedure by which such matters are conducted.

[125] Danyliuk J. also wrote of the specific family law rules that apply in Saskatchewan and the court’s inherent ability to control its process. In considering all of those, he metaphorically concluded at para. 35 that:

…having released the custody genie from the procedural bottle, the petitioner cannot unilaterally seek to shove it back inside.

[126] Of course, here the arbitrator lacked either the parens patriae or inherent jurisdiction of this court to control its process. But it is not necessary to invoke either element of jurisdiction to ensure that the paramount factor in all parenting decisions, the best interests of the children, is honoured.

[127] The arbitration agreement that governed the parties’ mediation/arbitration process called for all custody and access decisions to be made under the Children’s Law Reform Act or if a divorce has been granted or the parties are involved in divorce proceedings (as they are in this court), under the Divorce Act. Further the Family Law Rules and Rules of Civil Procedure apply to the arbitration, where applicable.

[128] As set out above, under s. 16(8) of the Divorce Act, when making an order for custody and access, or “any terms, conditions or restrictions in connection therewith [per. s. 16(6)]”:

the court shall take into consideration only the best interests of the child…

[Emphasis added]

The court lacks the jurisdiction to make a custody or access order that is not in those best interests. So too does the arbitrator.

[129] I add that subrule 2(2) of the Family Law Rules states that “[t]he primary objective of these rules is to enable the court to deal with cases justly.” In Titova v. Titov, 2012 ONCA 864, the Ontario Court of Appeal found, relying on that rule that there are some circumstances in which unrequested orders are appropriately made (albeit stating that to be particularly the case with self-represented parties). In A.A. v. Z.G., 2020 ONCA 192, the appeal court stated that “Rule 2 specifically grants judges some procedural freedom to resolve family law disputes fairly and expeditiously. ”

[130] For all those reasons, I find that the arbitrator had the jurisdiction to make a parenting order for the time after the children return to Ontario that was not in accord with the parties’ original agreement or understanding. That being the case, the type of remedy imposed by the arbitrator must be considered an exceptional one and one requiring a clear explanation based on the children’s best interests. I find that to be the case here.

[131] The arbitrator was very clear that his decision would not end the conflict between the parties. David was not only unable to follow the recommendation of the assessor to resolve the civil litigation with Joelle’s family, he chose instead to add her as a party. The arbitrator was very concerned about the ability of the parties to work together upon the children’s return to Toronto or to make decisions together. He also felt, based on the evidence, that Joelle was the long-term primary caregiver of the children and possessed the superior parenting skills (without denigrating those of David).

[132] Normally, it would have been appropriate for the judge or arbitrator to, as the majority stated in Richardson, inform the parties of his concerns so that they could resolve them. But in the mediation/arbitration process below, unlike a trial, the arbitrator had been intimately involved in a mediation process with the parties. He was appropriately aware of the positions of the parties and the likelihood of their reaching a resolution with his further directions. Based on his experience with the parties, it can be inferred that he felt that that would not occur. Thus, the arbitrator’s failure to telegraph his concerns with a shared parenting arrangement in Ontario does not impact on the propriety of his decision.

[133] For those reasons, I find that the arbitrator made no error in granting a parenting schedule that the parties had not agreed upon, made Joelle the primary caregiver and set out a decision-making process within the context of joint custody that allowed Joelle the final say.

No Error in Differing Rights of First Refusal

[134] David also takes issue with the award’s differing arrangements regarding rights of first refusal if a parent is unable to care for the children during their parenting time. Once again, that decision was available to the arbitrator. That decision was based on the evidence with regard to Joelle’s term as the children’s primary caregiver, her intimate knowledge of the children’s needs, the fact that, despite conflict with her family, she had extended family in the GTA who had a relationship with the children, and the fact that in contrast, David’s support network was quite shallow.

Alleged Inconsistency in Requiring the Children to return to Ontario and Granting Joelle Primary Care, Final Making Responsibility and Differing Rights of First Refusal

[135] Before concluding the parenting issues, I note Joelle’s argument that the arbitrator’s decision was illogical because of the alleged inconsistency between requiring the children to return home to the GTA and granting her the primary parenting role when that occurs. Her point is that the arbitrator failed to defer to her primary parenting role in Indiana but grants such a role to her here in Ontario. She effectively argues that this reflects a logical inconsistency in the arbitrator’s rationale.

[136] I do not agree. The issues are separate. The arbitrator considered the relevant factors in each phase of his decision. A parenting plan is not necessarily a “cookie cutter” device that applies to all parties at all times; far from it. That point is all the more apposite in the complex facts of this case. The children, D and C have profound and differing needs that overlap only in part. The reasons that it is in the best interests of the children to return to Ontario do not set in stone the parenting arrangements that are in their best interests when they return here. The arbitrator carefully considered each of those factors in making his award. Those two elements of the award are responsive to the children’s needs rather than mutually inconsistent. As set out above, they are entitled to appellate deference.

Conclusion re Parenting Arrangements and Differing Rights of First Refusal when the Children Return to the GTA

[137] For the reasons set out above, the arbitrator’s decision about parenting arrangements when the children return to the GTA was one that was available to him on the evidence. It reflects no error. I dismiss David’s appeal in that regard.

Financial Issues

[138] This appeal has been argued in writing only. In conference calls with counsel, I advised that I would likely bifurcate this decision between parenting and financial issues in order to ensure that the parenting issues are resolved as quickly as possible. Because of the delay in preparing this endorsement (the parties spent some time in negotiations, with the assistance of Coats J. during the course of this appeal), I had hoped to include both sets of issues in one endorsement. However in the course of preparing my reasons, I came to realize that I have questions with regard to some aspects of the financial issues in the appeal. Accordingly, rather than delay the release of my parenting decision, I am releasing this endorsement and giving directions with regard to the financial issue in which I require assistance from the parties.

Further Questions for the Parties

[139] I direct counsel to respond to the questions set out below.

[140] The questions to which I require answers are:

1. Were Joelle’s appeal assertions of the application of the doctrines of proprietary estoppel and issue estoppel raised before the arbitrator?

2. If not should this court consider those doctrines in light of the following questions:

a. had the question been raised at the proper time, would any further light have been thrown upon them?

b. is it in the interests of justice to consider those two forms of estoppel in this appeal? and

c. does the court have a sufficient evidentiary record and findings of fact to do so?

(see Quan v. Cusson, 2009 SCC 62, [2009] 3 S.C.R. 712 at para. 36 and 37)

3. is there what are the consequences in regard to the arguments that she raises on those issues in this appeal?

4. Assuming that that this court is entitled to consider the application of the doctrine of proprietary estoppel on this appeal, what evidence was called before the arbitrator that supports the claim to its application?

5. Is a consent order or award subject to the doctrine of issue estoppel?

6. Is the answer different if the consent is based on mutual mistake?

7. If the court may entertain the issue estoppel argument, what are the consequences of the terms of the consent award of March 5, 2019, requiring:

• David to consent to the sale of the matrimonial home;

• Joelle to have an equal say in the selection of a listing agent for the sale of the home;

• Both parties to sign the listing agreement; and

• David to pay the costs of any minor repairs or staging, up front, “… to be reimbursed for 50% from Joelle’s half of the net sale proceeds of the sale of the home. “ [Emphasis added]

8. If the court were to accept the application of the principle of proprietary and/or issue estoppel to the facts of this case, what would be the legal basis for awarding the relief claimed by Joelle and the legal mechanism to do so? I ask that question in light of the facts that:

a. While the arbitrator’s award of March 5, 2019 refers to “Joelle’s half of the net sale proceeds of the sale of the home”, it does not specifically direct that Joelle is entitled to 50% of the net sale proceeds of the home.

b. There was no claim before the arbitrator for rectification of title to the matrimonial home;

c. Joelle had withdrawn her claim to unequal division of net family property some three months before the commencement of the hearing.

d. With the arbitrator refusing to entertain David’s claim to an unequal division of the parties’ net family properties, Joelle raised no unequal division argument of her own before the arbitrator;

e. In the absence of a claim to an unequal division of the parties’ net family properties, the arbitrator simply awarded an equalization of the parties’ net family properties.

f. There was no trust claim regarding the matrimonial home before the arbitrator and in any event, the arbitration agreement stated that “[a]ll property issues shall be determined in accordance with the provisions of the Family Law Act. R.S.O. 1990, C.F.3, as amended”.

g. On the other hand, David never moved before the arbitrator to set aside the order for sale, despite the claim that it arose from a mutual mistake.

[141] During the telephone/Zoom conference call called for above, I will determine the logistics by which these questions will be answered, including whether in writing or orally or both.

Conclusion

[142] In conclusion, I dismiss Joelle’s appeal regarding the arbitrator’s award requiring the return of the children to the GTA. I also dismiss David’s appeal of the arbitrator’s award regarding parenting arrangements when the children return to Ontario. I will hold a hearing to determine how to implement the award for the return of the children to Ontario. Before that hearing, I will conduct a telephone/Zoom conference call to discuss the process for that hearing and for answering my questions regarding issue estoppel and title to the matrimonial home.

[143] The balance of this appeal, in regard to financial issues and costs only, remains on reserve.

“Marvin Kurz J.” Electronic signature of Justice Marvin Kurz, Original will be placed in court file

Dated: September 16, 2020

[^1]: In order to protect their privacy, I have changed the references to the children’s names in both this decision and my quotes from the award to initialize the children’s names.