Court File and Parties
COURT FILE NO.: FC-17-1508 DATE: 2020/02/10 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Z.S., Applicant -and- B.P., Respondent
BEFORE: Justice Pam MacEachern
COUNSEL: Judy Overgaard for the Applicant Rodney B. Cross for the Respondent
HEARD: January 23, 2020
E N D O R S E M E N T
1The parties have engaged in litigation arising from their separation. The main issue resolves around parenting for their 2 ½ year old son. This matter was set to proceed to trial in September of 2019. The parties avoided a trial by executing Minutes of Settlement to have the issues determined by mediation/arbitration. The parties then signed an Arbitration Agreement, attended mediation and a number of pre-arbitration conferences. However, in early December 2019, the Respondent refused to pay his retainer for the arbitration process, refused to attend domestic violence and power imbalance screening, and took the position that arbitration should not proceed. The Respondent father now seeks to return the issues to court. The Applicant mother brings this motion seeking an order requiring the Respondent to proceed with the arbitration process.
2For the reasons that following, I find that the Minutes of Settlement, executed by the parties on September 20, 2019, require the Respondent to take the steps necessary to implement the terms of their agreement, which include attending domestic violence and power imbalance screening. Upon the Respondent completing that screening, in accordance with the terms of the executed the Arbitration Agreement, that Arbitration Agreement comes into effect.
Analysis
3On August 28, 2019, the Respondent accepted the Applicant’s offer to settle. This offer and acceptance are in writing. The terms are not in dispute. The terms include that the issues of parenting and child support are to be determined through mediation/arbitration with Kathryn d’Artois, subject to her availability, and for the parties to execute a mediation/arbitration contract. The accepted offer also provides for an expansion of the Respondent’s interim access. The terms include that if Ms. d’Artois becomes incapacitated to the extent that she cannot perform her duties as a mediator/arbitrator, the matter is permitted to be returned to court and re-listed for trial. The parties executed Minutes of Settlement incorporating the terms of the accepted offer.
4On September 20, 2019, the parties, with their lawyers and Ms. d’Artois, executed an Arbitration Agreement, as contemplated by the minutes. The parties executed the Arbitration Agreement before they had been screened for domestic violence and power imbalance screening. Such screening is required under the Arbitration Act. The wording of the Arbitration Agreement addresses this by providing that the Agreement only comes into effect when both parties have been screened.
5The Respondent’s first argument is that the Applicant is in breach of the Minutes because she did not complete the mediation provided for in the Minutes. I do not accept this argument. The Minutes required the parties to attend mediation, which they did by attending a mediation session with Ms. d’Artois on September 20, 2019. That a further mediation session was scheduled, but did not take place, does not constitute a breach of the Minutes. I also do not find that the Applicant did not demonstrate good faith compliance with the terms of the Minutes by cancelling the mediation session with Dr. Leonoff on December 12, 2019. The Applicant only cancelled that mediation session after the Respondent took the position, on December 2, 2019, that he “cannot afford to proceed to arbitration” and refused to pay the arbitration retainer.
6The Respondent’s second argument is that the executed Arbitration Agreement is not valid because the parties signed the agreement prior to being screened for domestic violence and power imbalance. The Respondent now refuses to attend for this screening.
7This argument ignores the fact that, regardless of whether the Arbitration Agreement has taken effect, the Respondent is bound by the signed Minutes of Settlement to have these issues resolved by mediation/arbitration and for him to sign an Arbitration Agreement. I accept the Applicant’s argument that the Minutes impose on the Respondent an obligation to take the steps necessary to make the Minutes operative [see Bhasin v. Hrynew 2014 SCC 71] which include an obligation to attend for domestic violence and power imbalance screening, upon which the Arbitration Agreement will be effective.
8This finding is consistent with the policy requirements behind the requirement for domestic violence and power imbalance screening. This purpose of this screening is not to exclude participants from an arbitration process, but to ensure that domestic violence and power imbalance factors are considered throughout the arbitration process.
9The Respondent advances a number of other arguments, which I also reject. I reject the Respondent’s argument that the Arbitration Agreement is not valid because it does not disclosure the cost of the arbitration. Ms. d’Artois specifies her hourly rate in the agreement and describes the nature of the services for which this rate will be charged. I do not accept that the agreement is not valid because it does not specify the total cost, which could only be specified if the exact duration of the proceedings is known. The Respondent was represented by counsel when he signed the agreement. I find that Respondent and his counsel could easily ascertain projected costs for the arbitration by multiplying Ms. d’Artois’ hourly rate by the expected duration of the proceedings, which they in part controlled. If there was any uncertainty about the cost, the Respondent or his counsel could have asked. There is no evidence before me that they did. If the Respondent wished to negotiate time limits for the proceedings in order to place limits on the cost, he should have done so when he signed the Minutes of Settlement as well as when he signed the Arbitration Agreement. I do not accept that the Respondent was taken by surprise by the cost of the arbitration process, particularly given that the parties otherwise intended to proceed to trial.
10I also reject the Respondent’s argument that Ms. d’Artois is now “incapacitated” from acting as Arbitrator due to an actual or perceived conflict of interest. The Respondent alleges that there is an actual or perceived conflict of interest with the Applicant’s counsel, Ms. Overgaard, because Ms. Overgaard intended to act as an instructor at a conflict resolution course taught by Ms. d’Artois and another professional. The evidence before me is that this course was cancelled. Even if the course was not cancelled, I would not find that such involvement, between two professionals, gives rise to an actual conflict or reasonably held perception that Ms. d’Artois is not impartial as between the parties and neutral with respect to any particular outcomes.
11I find that the real reasons for the Respondent’s objections to proceeding with arbitration are that he is now having second thoughts about his agreement to arbitrate the issues. I cannot allow this as a basis for him to withdraw from his obligations. He has signed Minutes of Settlement that are binding upon him. He has benefitted from certain aspects of those Minutes (having the matter removed from the September 2019 trial list, extending his interim access, engaging in some mediation, and with a number of pre-arbitration conferences). He cannot get out of his agreement by refusing to attend power imbalance screening.
12For the above reasons, the Respondent shall immediately attend for domestic violence and power imbalance screening with Ms. Caron George, within 14 days. Upon the completion of that screening, the Arbitration Agreement dated September 20, 2019 shall be effective and jurisdiction to address compliance with the terms of that Agreement shall be with the Arbitrator, subject to the court’s jurisdiction to intervene in accordance with s.6 of the Arbitration Act.
Costs
13If the parties are unable to agree on costs of this motion, the Respondent may file submissions concerning costs on or before February 21, 2020. The Applicant may file submissions concerning costs on or before February 28, 2020. Cost submissions of both parties shall be no more than three pages in length, plus any offers to settle and bills of costs and shall be spaced one point five spaces apart, with no less than 12-point font.
Dated: February 10, 2020 __________________
Justice P. MacEachern
COURT FILE NO.: FC-17-1508 DATE: 2020/02/10
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Z.S. Applicant -and- B.P. Respondent
BEFORE: Justice Pam MacEachern
COUNSEL: Judy Overgaard for the Applicant Rodney B. Cross for the Respondent
ENDORSEMENT
Justice Pam MacEachern
Released: February 10, 2020
