COURT FILE NO.: FC-16-2045-1
DATE: 20210722
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
David Daniel Moncur
Applicant
– and –
Stéphanie Ginette Plante
Respondent
Mimi Marrello, for the Applicant
Michael Tweyman (on limited retainer), for the Respondent
HEARD: June 15, 2021
WRITTEN SUBMISSIONS: June 25, 2021
RULING ON MOTION AND CROSS-MOTION
laliberté j.
[1] The Court is dealing with a motion and cross-motion brought by the parties in the context of a Motion to Change commenced by the Respondent on July 17, 2020. The issues revolve around the final orders granted by Justice Kershman on November 15, 2018 and November 20, 2018. Both orders reflected comprehensive Minutes of Settlement signed by the parties who were represented by counsel in high conflict litigation. The first order sets out the parenting for the child Ian Richard Urs Plante-Moncur, born September 28, 2010. The second order disposed of the property and support issues.
[2] At the heart of the present proceedings is a provision incorporated in both final orders and termed as “Dispute Resolution” clause. It is identified as the process to be used in the event of disagreements between the parties on parenting and support. The final orders stipulate that the parties shall refer to the “Dispute Resolution” clause to resolve such issues. The “Dispute Resolution” process is worded as follows:
DISPUTE RESOLUTION
- If the parties disagree about the parenting, they shall first try to resolve the dispute through negotiation, either between themselves or with their respective counsel, and/or with the assistance of a mediator, for up to two mediation sessions, on the following terms:
a. The party seeking a change, or the resolution of a parenting issue, shall make the request for review or variation by giving the other, in writing:
i. Notice of the proposed change or parenting issue;
ii. Evidence supporting the proposed change; and
iii. Any requests for information from the other necessary to determine the issue.
b. A request under subsection (a) above shall be answered within 20 days.
c. After exchanging any information, the parties shall meet personally or through their representatives to resolve the issues in dispute. If they come to an agreement, the parties shall sign and date an amending agreement before witnesses.
- If the parties are unable to resolve the dispute through negotiation and/or mediation within 30 days of the request for review or variation, they shall arbitrate the issue with Carol Bartels or if Carol Bartels is unavailable, with an alternate mutually agreeable mediator. The arbitration shall be binding on the parties and the parties shall share up-front cost of arbitration equally. The arbitrator shall have the ability to determine the proportion for payment of costs (if any) by either party in his or her arbitration award.
[3] Unfortunately, the significant amount of material filed by both parties in these motions reveal that the conflict between them remains and has amplified at times.
[4] They unsuccessfully attended for mediation with Carol Bartels on February 20th, 2019 and June 20th, 2019. The Applicant has refused to proceed to arbitration as per the above noted “Dispute Resolution” clause and asserts that there is no mediation or arbitration agreement signed by the parties. He is therefore not compelled to participate in binding arbitration.
[5] As a further example of the ongoing discord between these parents, the Court notes that the Respondent was found in contempt of Justice Kershman's parenting order by Justice Pelletier on February 3, 2020. On June 25th, 2021, the Ontario Court of Appeal upheld Justice Pelletier's finding that she had intentionally breached the parenting order in four respects but replaced the findings of contempt and sanctions by declarations that she had intentionally breached the said order.
[6] On July 17th, 2020, the Respondent commenced a Family Law Rule 15 Motion to Change seeking to vary the final orders of Justice Kershman with respect to parenting and support provisions. She now asks, through the present motion, that her Motion to Change be stayed and that the issues follow the arbitration path set out in the final orders. She explains that she was self-represented when she commenced these proceedings and believed that she had no other avenue in response to the Applicants refusal to attend arbitration.
[7] In his response to the Motion to Change dated August 25th, 2020, the Applicant seeks a dismissal on the basis that there is no material change in circumstances to support the claims therein. He now opposes, through the present motion, the stay of the Respondent’s Motion to Change and submits that the proceedings should continue as a means to “fine tune” the final orders through judicial case management.
[8] The Respondent sought the following relief in her May 1, 2021 Amended Notice of Motion:
(1) An order that her Motion to Change shall be stayed given the arbitration clause in the parties’ final order;
(2) An order that the Applicant shall attend arbitration with respect to all areas of relief sought in the Motion to Change, as per the final order of Justice Kershman;
(3) An order that the Respondent be allowed to vaccinate the child with the COVID-19 vaccine as soon as it is available for children, without the Applicant's consent; and
(4) Virtual school -vs- in-person learning for the 2021-2022 school year be added to the areas of relief for the arbitrator to decide.
[9] At the outset of the hearing, counsel for the Respondent stated that she was not pursuing the claims set out in her Notice of Motion other than the ones dealing with the issue of arbitration and the stay of her Motion to Change to allow all matters to be dealt through arbitration.
[10] For his part, the Applicant seeks the following relief in his June 7, 2021 Amended Notice of Cross-Motion:
(1) An order that the Respondent's motion to stay her Motion to Change proceedings be dismissed;
(2) An order that the Respondent’s motion to force arbitration be dismissed;
(3) An order that the Respondent’s motion to be allowed to vaccinate the child without having to consult him be dismissed;
(4) An order that the parties’ summer holidays with the child, shall be as follows:
(a) With the Applicant from July 9, 2021 at 5:30 PM to July 19, 2021 at 5:30 PM;
(b) With the Respondent for a period of 10 consecutive days which consists of adding 3 days to her regular parenting time after July 23, 2021 or before or after July 30 to August 6, 2021;
(5) An order that the child shall return to in-person schooling in September 2021;
(6) An order that if either of the relief sought at paragraphs 4 or 5 above cannot be heard on the June 15, 2021 date, that this Honorable Court deem them urgent to be heard on the next available motion date;
(7) An order that Master Kaufman’s endorsement at the case conference in this matter held on November 25, 2020 is amended to remove paragraph B of his orders pertaining to the maternal grandfather’s funeral;
(8) An order that the Respondent shall refer to the Applicant as David Daniel Moncur and shall discontinue using “JR” on all communications, including court documents; and
(9) An order that the Respondent shall no longer communicate with the Applicant, by email at dmoncur@graybarcanada.com.
[11] Following the hearing of these motions on June 15, 2021, the Court invited counsel to provide further submissions on the following points:
− The formal validity of the “Dispute Resolution” clause as a family arbitration clause.
− How the Respondent's Motion to Change could proceed further as a means to deal with the parenting issues raised by both sides if it was agreed that there was no material change in circumstances.
[12] The Court was provided with submissions from counsel on both sides.
[13] The Applicant submitted the following:
− That the dispute resolution clause pertaining to arbitration is not valid as it does not meet the requirements set out by the Family Law Act and the Arbitration Act, including its regulation;
− That Justice Mackinnon’s decision in Magotiaux v. Stanton, 2020 ONSC 4049, is the leading case as to the validity of the arbitration clause;
− That the Respondent has not proven the necessary material change in circumstance that support the relief she seeks; she is trying to re-litigate the terms of the final order; and
− That the Respondent’s extensive non-compliance with the final order amounts to a material change in circumstance; such change is limited to “fine tuning and clarification” as discussed by Justice Gregson in Norris v. Morocco, 2020 ONSC 2420.
[14] The Respondent added the following submissions:
− Based on the Ontario Court of Appeal decision in Geropoulos v. Geropoulos, 1982 CanLii 2020, the Court should find that the regulations under the Arbitration Act are not intended to apply to a consent order that settled pending litigation;
− A consent order is not a “mediation-arbitration agreement”; the Regulations cannot be interpreted in a manner that will routinely frustrate the intentions, or policy, of the legislature; it is wholly impractical, if not at times impossible, for the parties to have an arbitrator execute the declaration when the case is resolved; and
− Reference is made to the Ontario Court of Appeal’s decision in Owers v. Owers, 2009 ONCA 296, which relates to a requirement in the Arbitration Act that an agreement be in writing and concludes that Geropoulos applies.
Discussion
[15] This matter touches on an unsettled area of the law which requires appellate review. The issues to be decided by the Court raise some difficulty when looked at in the context of the conflicting jurisprudence on the subject matter of family arbitration. Both sides are able to offer cases from the Ontario Superior Court of Justice which support their respective opposite positions. The Applicant relies on the Court's reasoning in Magotiaux v. Stanton, 2020 ONSC 4049, while the Respondent bases her position on Giddings v. Giddings, 2019 ONSC 7203.
[16] What then is the proper course to address the conflict and parenting issues which have arisen on a fairly constant basis since Justice Kershman's final orders of November 2018?
[17] Having considered the circumstances, the Court is of the view that family mediation and arbitration as agreed upon by the parties and accordingly ordered by Justice Kershman should prevail over a return before the Court as proposed by the Applicant.
[18] To be clear, the Court is very mindful of the fact that the “Dispute Resolution” clause in this matter is not a valid arbitration agreement. There is no question that it does not contain the required standard provisions set out in the Family Arbitration Regulation 134/07. However, what is clear is that the parties consented to the terms set out in the said clause which unequivocally reveal a common intent to resolve future disputes through the mediation/arbitration process. The wording makes mediation and arbitration mandatory. It states:
− “If the parties Disagree about the parenting, they shall first try to resolve the dispute...”
− “If the parties are unable to resolve the dispute through negotiation and/or mediation within 30 days... they shall arbitrate the issue...”
[19] It is noted that both parties entered into comprehensive Minutes of Settlement being represented by counsel. These Minutes resolved all the issues and formed the basis for Justice Kershman's final orders.
[20] The parties’ common intent for the resolution of future disputes clearly falls within the definition of “secondary arbitration” found under section 59.7(2) of the Family Law Act:
Sec. 59.7(2): In this section, “secondary arbitration” means family arbitration that is conducted in accordance with the separation agreement, a court order or a family arbitration award that provides for the arbitration of possible future disputes relating to the ongoing management or implementation of the agreement, order or award.
[21] The Court agrees and adopts Justice Gray’s analysis found at paragraph 58 of Lopatowski v. Lopatowski, 2018 ONSC 824:
[58] In this case, the parties had entered into a clear agreement to the use of a parenting coordinator with broad powers to assist them in parenting disputes, which was to include arbitral authority if necessary. The principle of good faith and honest contractual performance would require that the parties take the steps necessary to make that agreement operative. In a case such as this, the parties, represented by experienced counsel, would know that certain formalities could be required, including statutory formalities. At the outset, when they made their agreement, if either party was concerned about whether something in a potential parenting coordinator agreement might be an impediment, one might have expected experienced counsel to raise it, or at least see a draft parenting coordinator agreement before executing the Minutes of Settlement. Similarly, if either party thought any of the statutory formalities were in issue, one might have expected counsel to raise it.
[22] The essence of the Court's decision is that the Applicant is bound by the terms of Justice Kershman's order which are based on Minutes of Settlement to take steps necessary to make the order operative. This obligation is for him as well as the Respondent to enter into a formal and secondary arbitration agreement with the required standard provisions set out in the Family Arbitration Regulation 134/07. The Court must have the power to require parties subject of a court order to live up to their obligations.
[23] The Court's finding as to the parties’ intent is reinforced by the fact that they both participated in two mediation sessions as set out in the “Dispute Resolution” clause. The Applicant then refused to participate in the arbitration phase. In the absence of a valid “secondary arbitration” agreement, he was not obliged to participate. However, this does not relieve him to follow through with a valid agreement.
[24] The Applicant's obligation to follow through with “secondary arbitration” and enter into a valid agreement to that effect per Justice Kershman's final orders, finds support in the Ontario Court of Appeal’s decisions in Geropoulos v. Geropoulos, 1982 CanLii 2020 and Owers v. Owers, 2009 ONCA 296, which speak to the validity of family court orders that contravene formal statutory requirements. The Court notes the following analysis in Geropoulos:
In my opinion, the section plainly is not aimed at or intended to apply to authorized settlement agreements like the present, made with legal advice during the pendency of court proceedings which, to be effective, require the intervention of the court. Such agreements derive their effect from an act of the court; their authenticity is assured by the court’s supervision and control over them... no purpose is to be served in compelling agreements of this kind to comply with formalities of s. 54(1) and, if not, permitting parties to withdraw at will from compromises properly entered into by their legal representatives before trial of their action or … compromises concluded even during the trial of an action...
[25] This reasoning is found to apply in the present matter on the issue of the Applicant having to enter a valid secondary arbitration argument:
− The minutes of settlement were made in the course of family litigation proceedings;
− Each party was represented by counsel;
− The final orders derive their effect through the involvement of Justice Kershman;
− Their authenticity and validity are assured by Justice Kershman's supervision and control.
[26] The Court also finds that secondary arbitration is in the child's best interests. As stated by the Ontario Court of Appeal in Petersoo v. Petersoo, 2019 ONCA 624:
[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 the child.
[27] In its task of assisting the conducting of secondary arbitration in this matter pursuant to sec. 6 of the Arbitration Act, the Court also raises the concern regarding the Motion to Change commenced by the Respondent. The Court questions whether there is a foundation allowing for such a Rule 15 Motion to Change which requires a material change in circumstances under sec. 29 of the Children's Law Reform Act.
[28] As stated by the Ontario Court of Appeal in Goldman v. Kudelya, 2017 ONCA 300:
[33] For over two decades the law has been clear about the test to be applied when the court is asked to vary a custody order. In Gordon v. Goertz, [1996] 2 S.C.R., the Supreme Court Clarified that s. 17 calls for a two-stage inquiry. First, there must be a material change in the situation of the child which represents a distinct departure from what the court could reasonably have anticipated in making the previous order…
[34] If there is no material change, the inquiry ends…
[29] By all accounts, the conflict and acrimony between the parties in this manner is longstanding and was certainly well known when they executed the Minutes of Settlement and were granted final orders by Justice Kershman in November 2018. The present round of conflict and acrimony is certainly not a change which could have reasonably impacted on the substance of the said orders. It is more in the nature of a continuum. It is also more than “fine tuning” as suggested by the Applicant.
[30] The principle is such that continuing parental conflict known at the time of the order cannot stand as a material change in circumstances. The Court notes the following comment of the Ontario Court of Appeal in Litman v. Sherman, 2008 ONCA 485:
[43] It is clear that the parties’ relationship has been relentlessly acrimonious and conflictual since Rachel's birth. The fact that there has been no change in this sad state of affairs is what grounds my conclusion that the trial judge erred in re-opening the custody issue...
[44] The person occupying the most unfortunate position throughout this conflict is, of course, Rachel herself. Regretfully, she has known no other state of affairs. For her sake, I would encourage the parties to pursue and resolve their disputes in a more amicable fashion...
[31] If the Court is correct regarding the unavailability of the Motion to Change as a path to address the present parenting issues, some of which are pressing, then secondary arbitration is the only available process to deal with same.
[32] It is also of some significance that the Motion to Change was commenced by the party who now wishes to terminate same. As noted by the Court during the June 15, 2021 hearing, subject to costs, Family Law Rule 12(1) provides that “a party who does not want to continue with all or part of a case may withdraw all or part of the application, answer or reply...”
Conclusion
[33] For the reasons set out herein, the Court makes the following orders:
(1) The Respondent's Motion to Change commenced on July 7, 2020, is stayed pursuant to Section 7(1) of the Arbitration Act; and
(2) The parties are ordered to forthwith execute a family arbitration agreement to follow through with secondary arbitration as set out in Justice Kershman's final orders of November 15, 2018 and November 20, 2018.
[34] The parties are asked to try and agree on the question of costs for this motion and cross-motion. If unable to do so, each shall file brief written submissions not to exceed three pages together with their respective Bill of Costs. This shall be served and filed with the Court on or before August 31, 2021.
Released: July 22, 2021
COURT FILE NO.: FC-16-2045-1
DATE: 20210722
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
David Daniel Moncur
Applicant
– and –
Stéphanie Ginette Plante
Respondent
Ruling on motion and cross-motion
Laliberté J.
Released: July 22, 2021