SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-17-416419
DATE: 20210421
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
A.A.
Appellant
– and –
R.R.
Respondent
R. McLean, for the Appellant
C. Rawn, for the Respondent
HEARD: March 18, 2021
Shore, J.
[1] The parties participated in an arbitration with the Honourable Craig Perkins(“Arbitrator”). The arbitration award was released on December 24, 2020 (“Award”). The Appellant has brought this motion for leave to appeal the Award and for an order staying the Award, pending appeal.
[2] The primary ground for the appeal is that the Arbitrator exceeded his jurisdiction when making an award decreasing the Appellant’s parenting time with the child. It is submitted by the Appellant that the Arbitrator had jurisdiction to either increase the Appellant’s time with the child or leave the current parenting plan, but the Arbitrator did not have jurisdiction to decrease the Appellant’s time with the child. The Appellant also submits that the Arbitrator did not have jurisdiction to appoint someone to assist with the transfers of the child between the parties.
[3] The questions for this court to consider are as follows:
a. Does the appellant have a right to appeal the arbitration award, with leave?
b. If the appellant has a right to appeal the arbitration award with leave, what is the test for leave to appeal?
c. Should leave to appeal be granted in this case?
d. If leave is granted, should the court make an order staying the arbitration award pending appeal?
[4] For the reasons set out below, I find that:
a. The Appellant has a right to appeal the Award with leave;
b. However, I am not prepared to grant leave to appeal the Award in this case; and
c. Given that the Appellant has not been granted leave to appeal the award there is no need to determine whether to stay the Award pending the appeal, but in any event, the Appellant would not have been granted a stay of the Award pending appeal.
Does the appellant have a right to appeal the arbitration award?
[5] The right to appeal can stem from the arbitration agreement between the parties (and the arbitrator) or from the Arbitration Act.
[6] Paragraph 26, the parties’ arbitration agreement stipulates that:
The parties have the right to review any arbitration award in accordance with section 46 of the Arbitration Act and the right to appeal any award on a question of law, with leave, as provided by section 45 of the Arbitration Act.
[7] Section 46 of the Arbitration Act is not relevant to the issues before the court today. Section 45 of the Arbitration Act provides:
(1) If the arbitration agreement does not deal with appeals on questions of law, a party may appeal an award to the court on a question of law with leave, which the court shall grant only if it is satisfied that,
(a) the importance to the parties of the matters at stake in the arbitration justifies an appeal; and
(b) determination of the question of law at issue will significantly affect the rights of the parties. 1991, c. 17, s. 45 (1).
[8] The Appellant therefore has a right to appeal a question of law, with leave of this court under both the Arbitration Act and the Arbitration Agreement. Is the Appellant appealing a question of law?
[9] The primary issue on appeal is whether the arbitrator had jurisdiction to make an award decreasing the Appellant’s parenting time with the child. The issue of jurisdiction is a question of law and therefore, if given leave, the Appellant has a right to proceed with the appeal on the question of whether the Arbitrator had jurisdiction to make the order.
What is the test for leave to appeal an arbitration award?
[10] As set out above, pursuant to section 45 of the Arbitration Act, a court shall only grant leave to appeal an arbitration award on a question of law if the Court is satisfied that:
(a) the importance to the parties of the matters at stake in the arbitration justifies an appeal; and
(b) determination of the question of law at issue will significantly affect the rights of the parties. 1991, c. 17, s. 45 (1).
Should leave to appeal be granted in this case?
[11] It is important to understand the overall role of this Court in dealing with motions for leave to appeal arbitration awards. The Supreme Court of Canada has stated that a narrow scope of appellate review in family law matters, in general, promotes much needed finality: Ojo v. Mason, 2013 ONSC 1240 (Ont. S.C.J.), at paras. 19-24; Van de Perre v. Edwards, 2001 SCC 60 (S.C.C.), at paras. 8-16; and Veneris v. Koh Veneris 2018 ONSC 4164, 2018 CarswellOnt 11297Ontario
[12] The Court of Appeal specifically applied this idea to motions for leave to appeal arbitration awards in the Superior Court of Justice. The Court of Appeal in Petersoo v. Petersoo, 2019 ONCA 624 (Ont. C.A.), at paras. 35-37, cited a line of jurisprudence indicating that:
[35] Mediation/arbitration is an important method by which family law litigants resolve their disputes. Indeed, the courts encourage parties to attempt to resolve issues cooperatively and to determine the resolution method most appropriate to their family. The mediation/arbitration process can be more informal, efficient, faster and less adversarial than judicial proceedings. These benefits are important with respect to parenting issues, which require a consideration of the best interests of children. The decision of an arbitrator, particularly in child related matters, is therefore entitled to significant deference by the courts: see Patton-Casse v. Casse, 2012 ONCA 709, 298 O.A.C. 111, at paras. 9, 11.
[36] The essence of arbitration is that the parties decide on the best procedure for their family. Although the family law of Ontario must be applied, the procedures on an arbitration are not meant to mirror those of the court...
[37] Here the parties decided that an appeal would only be based on a question of law. As this court stated in Alectra Utilities Commission v. Solar Power Network Inc., 2019 ONCA 254, 145 O.R. (3d) 481, at para. 20:
So, the starting point in exercising the court's role under the Arbitration Act, 1991 is the recognition that appeals from private arbitration decisions are neither required nor routine and the courts perform a gatekeeping role in applications for leave to appeal family law awards. Courts are not to interfere lightly in the results of private arbitrators, particularly in matters such as this where the parties "bargained for finality" using narrow appeal rights. [emphasis added]
[13] What does the court mean by a gatekeeping role? Does it mean that there is discretion not to grant leave, even if the court finds that the test set out in section 45 of the Arbitration Act is met? I find that it does, or at the very least, it provides the court with a broad range of discretion in determining if the matter justifies an appeal under section 45 of the Act. In determining whether to grant leave to appeal an arbitration award, this Court must factor in the gatekeeping role played by the court, emphasized by the requirement to obtain leave of the court in the Arbitration Act.
[14] The parties have been involved in litigation since 2015. On May 29, 2019, on the eve of trial, the parties reached an agreement resolving the issues in dispute regarding their then four-year-old child. The agreement was incorporated into a consent order of Justice Kristjanson (“Order”).
[15] Although the Appellant was seeking equal time with the child, the parties agreed on a residential schedule that had the child residing with the Respondent Mother for one extra overnight in a two-week period. Paragraph 4 of the Order states:
The regular residential schedule for A.R. shall be reviewed by April 1, 2020, with a view to increasing the time A.R. spends with R.R. in accordance with her best interests. If the parties are unable to agree, they shall submit the review to mediation and, if necessary, arbitration with a mutually agreeable professional. [emphasis added for discussion later]
[16] After a number of false starts (because the parties tried to return this matter back into the courts), the parties were sent to mediation/arbitration to review the residential schedule, as required under the Order. The parties agreed that although the review was limited to the child’s residential schedule, the Arbitrator would also determine where the child would attend school. The parties had joint decision-making responsibility but could not agree on where the child would go to school. The parties specifically gave the Arbitrator authority over the school issue, but he otherwise could not make decisions affecting their joint decision-making arrangement.
[17] The Appellant’s position at arbitration, was that the child’s primary residence should be changed so that the child lived primarily with the him, with much more limited parenting time for the mother than what the Appellant had under the current order/agreement.
[18] In looking at the first part of the test set out in section 45 of the Arbitration Act, the ‘matter at stake’ in the arbitration was the residential schedule of the child. The issue on appeal is whether the Arbitrator had authority to reduce the residential time the Appellant spends with the child (as opposed to increasing the time or leaving the status quo).
[19] The issue of the child’s residential schedule is important to the parties. Although the award only reduced the time the Appellant spends with the child by one day every two weeks, the test for granting leave to appeal focuses on the importance “to the parties”. From reading the Order and the Award, the issue of how many overnights the child spends with each parent was and is an important issue to the parties. However, the test does not end there.
[20] The second part of the sentence carries on and includes the proviso that the importance of the matters at stake must “justify an appeal”. The Appellant agrees that the Arbitrator could have made an award which maintained the status quo. So, the matter at stake is the reduction of one night every two weeks of parenting time, or as quantified by the Appellant, 18 overnights in a year. As pointed out by the Respondent, some of the lost 18 days were made up by the increased holiday time. The Arbitrator changed the equal holiday time to give the father some additional time over holidays. Does the importance of the matter (a loss of less than 18 days in a year) justify an appeal, even if the issue at stake is important to the parties? The importance of the loss of one night every two weeks is somewhat diminished because some of the lost time was made up in holiday time. As set out at paragraph 61 of the Award “It is also hard to credit how an increase in the father’s parenting time from 45% to 50%, or for that matter a similar decrease, would make any material difference in the child’s life.”. The Arbitrator found that the Father’s concern about increasing his time to equal parenting time is at least in part symbolic rather than real and motivated in part by money. This too would diminish the importance of the reduction in parenting time.
[21] For the reasons set out below, I cannot justify the time and cost (both emotional and financial) of an appeal to the parties for the loss of something less than 18 days over the course of a year in the circumstances of this case. I will elaborate further.
[22] In addition to considering the importance of the matter to the parties, the court must then weigh the importance of the matter at issue with proceeding to an appeal. In looking at the issue of justifying an appeal, the circumstances and context of this case are importance.
[23] The parties were never married and never lived together. They have one child born of their relationship. These parties have been involved in litigation since 2015, even during an agreed upon hiatus, between May 29, 2019 and April 1, 2020, which hiatus was mandated as a term of their settlement/ consent order. The litigation began before the child was born. The Appellant sued the Respondent in civil court for $4 million in damages for deceit, fraud and fraudulent misrepresentation, alleging that he was deprived of the right to chose when and with whom he would become a father. The civil action was summarily dismissed in 2016 (as was his subsequent appeal), but there has been no decrease in the level of animosity and litigation between the parties in all these years. The parties were also back in litigation almost immediately following the consent order in 2019, with motions regarding school and contempt. The litigation in court resumed as soon at the arbitration award was released. There have also been numerous calls to both police and the Children’s Aid Society by one or both of the parties.
[24] The Arbitrator was concerned about the ongoing cost of the litigation on the child. At paragraph 43 if the Award he states “Deception, unreliability, and selfishness (rather than consideration of the child) on the mother’s part were continuing themes throughout the [Father’s] affidavit” and at paragraph 44 “He denied being still angry about becoming a father in the way that he did, but it was very clear from his answers and demeanour that he was and remains angry, resentful and morally indignant”. In speaking about the Appellant and his mother, the Arbitrator found at paragraph 57 that “They are, despite their protestations, still angry, resentful, disapproving and mistrustful toward the mother. Their continuing attitude causes them at time to lose their focus on the daughter’s best interests, and they must inevitably let the child see and hear their unfavourable view of the mother as they did so plainly in their testimony before me.”.
[25] The cost of continuing in this ongoing litigation is not just a financial cost. Back in 2017, the court commented that “This case started out on bad footing on both sides – but the parties are adults and need to put the past behind them for the sake of the child and for themselves…Protracted legal proceedings can only serve to damage everyone psychologically, and financially”. As recent as April 2020, the court found this case continued to be a high conflict case, despite a final resolution of the issues. The parties continued bringing motions to court throughout 2020 (when the Court’s ability to hear matters was restricted by COVID-19), right up until the arbitration. There can be no doubt that this is a high conflict case, being perpetuated by both parties.
[26] The parties have a six-year old child who has been caught in the middle of their dispute for her entire life. The cost of this appeal perpetuates the ongoing litigation. It provides no relief to the ongoing litigation, continues to consume limited court resources at a time when court resources are being stretched to the limit, and continues to place the child in the middle of their high conflict dispute, contrary to the best interest of the child. The cost of the appeal is high in these circumstances and I find not justified for a difference of less than 18 days of reduced parental time with the child in a year.
[27] Further, in considering whether the importance to the parties justifies an appeal, the court has discretion to consider the merits of the appeal. To allow an appeal to proceed if the appeal is devoid of merit, would entirely negate the court’s role as gatekeeper.
[28] The parties have been involved in litigation (whether in court or mediation/arbitration) since 2015. As set out above, the parties agreed to limited rights of appeal to questions of law, and only with leave of the court. Given the limited scope of the appeal rights, the issue of finality is also a factor in determining whether to grant leave to appeal in this case.
[29] It can be argued that a motion for leave to appeal an arbitration award is not based on the merits of the appeal, but whether the appeal ought to be heard. However, in determining whether an appeal ought to be heard, at some level the merits of the appeal must come into play. This is supported by the gate keeping role of this court in whether to grant leave to appeal: see Gragtman v. Gragtman 2020 ONSC 5322. The bulk of the Appellant’s factum and submissions focussed on the merits of the appeal.
[30] I will briefly consider the merits of the appeal. The sole issue for the appeal is one of jurisdiction. Did the arbitrator have jurisdiction to make an award decreasing the appellant’s time with the child? The Appellant submits that the Arbitrator had no jurisdiction under either the order or the arbitration agreement to make the Award he made. The Appellant submits that the issue of whether to decrease the child’s time with the Appellant was not before the Arbitrator.
[31] An arbitrator’s authority and powers stem from the arbitration agreement. If there is no signed arbitration agreement, there is no jurisdiction to arbitrate a case. The arbitrator’s authority is limited to deciding only those questions that are set out in the arbitration agreement.
[32] In having read both the Arbitration Agreement and the Court Order, I find it is clear that the Arbitrator had jurisdiction to make the award decreasing the child’s residential time with her father and the appeal is devoid of merit.
[33] The agreement between the parties was incorporated into a court order. The review clause in the order provides that the schedule shall be reviewed in accordance with the best interests of the child. The wording “with a view” is not mandatory, but suggestive. The term “with a view to increasing the time” cannot detract from the mandatory obligation both under the contract and the law in Ontario that the review must be decided in accordance with the best interest of the child. Looking at the language of the Order, nothing restricts the arbitrator from making a decision in the best interest of the child, even if it means reducing the Appellant’s parenting time with the child.
[34] The Arbitrator also turned his mind to jurisdiction and came to a similar conclusion:
- The May 29, 2019 order provides for a review of parenting time “with a vie to increasing the time [the daughter] spend with [the father] in accordance with her best interest.” The order was based entirely on the consent of the parties. The wording was a negotiated compromise of the parties’ competing interests, under the pressure of an approaching trial date… The language “with a view to increasing…” expresses an intention or maybe a presumption that the father’s parenting time with the daughter would increase, but it is qualified by “in accordance with her bests interests.”
[35] The Appellant also submitted that the Arbitrator did not have jurisdiction to address the transition of the child between the parties’ homes, only the issue of the schedule and the school. The Arbitrator correctly pointed out that section 24 of the Children’s Law Reform Act (both before and after the recent amendments), requires decisions on parenting orders to be made only taking into account the best interest of the child. Section 28 of the Act confers very broad authority to determine any aspect of the incident of parenting time, including “duration, frequency, manner or location” and authorizes “any additional order…necessary and proper in the circumstances”. The arbitrator has jurisdiction to determine incidents of access by virtue of s. 28(b) of the Children’s Law Reform Act: Veneris v. Koh Veneris, 2018 ONSC 4164, 2018 CarswellOnt 11297 (Ont. S.C.J.).
[36] The parties executed an agreement, which provided that the arbitrator had jurisdiction over “all parenting issues arising from the parents’ Minutes of Settlement.”. The arbitrator had acknowledged authority pursuant to s. 28(b) of the CLRA and thus also had jurisdiction to determine incidents of access (as it was then referred to), including the appointment of a transfer facilitator. This purposive interpretation of the arbitrator’s jurisdiction recognizes the best interests of the child. Moreover, it is consistent with the parties’ evidence and submissions at the arbitration. The parties gave evidence about the effect of the direct exchanges that had been taking place with their child. The arbitrator reviewed that evidence at length and concluded that indirect transfers were necessarily in the child’s best interests.
[37] I also find that nothing in the retainer/arbitration agreement restricts the Arbitrator’s jurisdiction in this regard. Paragraph B7 of the Arbitration agreement provides that the issues before the Arbitrator includes parenting time for the child. I attach a copy of the Arbitration Agreement to this Order. There was no qualification in the Arbitration Agreement that the Arbitrator could only increase the Appellant’s time with the child or leave it as it was prior to the review. While the Appellant may have wanted the schedule to increase, nothing in the order or agreement that limited the authority of the Arbitrator.
[38] Further, the Appellant’s draft award as submitted to the arbitrator went beyond what the Appellant now submits were issues outside the jurisdiction of the Arbitrator. The Appellant’s draft order covered the regular residential schedule for the school year, holiday times, summers, the child’s birthday, transportation responsibilities, and pick up and drop off locations, and in addition “any matters concerning parenting times that is authorized by section 28 of the Children’s Law Reform Act: see Award, paragraph 36.
[39] A very similar fact scenario arose in a 2018 decision of this court. In Veneris v. Koh Veneris, 2018 ONSC 4164, 2018 CarswellOnt 11297, the appellant argued 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. The Appellant submitted 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. In considering whether to grant leave to appeal, the court states as follows:
46 [T]he 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.
Stay Pending Appeal
[40] Finally, even if I had granted leave to appeal, I would not have granted a stay pending appeal.
[41] The Appellant has the onus of satisfying this court that the stay should be granted based on the three-part test established by the Supreme Court of Canada in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 (S.C.C.), 1994 117 ("RJR"), as follows:
(a) there is a serious issue to be adjudicated on the proposed appeal;
(b) irreparable harm will result if the stay is not granted; and
(c) the balance of convenience favours a stay pending appeal.
[42] All three parts of the test must be satisfied if an order for a stay of the arbitration award is to be granted.
[43] For the second part of the test, the burden of proving irreparable harm is on the Appellant. "Irreparable" refers to the nature of the harm, rather than its magnitude. The issue in dispute is one overnight with the child over a two-week period. I am not satisfied that irreparable harm will arise to either the child or the Appellant if the Award is not stayed pending appeal. Missing one night together over a two-week period will not irreparably harm either the child or the Appellant.
[44] It is my view that the interests of justice would not be served by granting a stay of the award pending appeal. Given that the Appellant could not meet the second part of this test, there would be no need to address the first and third part of the test.
[45] Motion for leave to appeal the arbitration award is dismissed.
Justice S. Shore
Released: April 21, 2021
COURT FILE NO.: FS-17-416419
DATE: 20210421
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
A.A.
Appellant
– and –
R.R.
Respondent
REASONS FOR JUDGMENT
S. Shore, J.
Released: April 21, 2021