NEWMARKET COURT FILE NO.: FC-12-42094-00
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Racquel Spivak
Applicant
– AND –
David Hirsch
Respondent
Counsel for the Applicant
Mark Greenstein
Counsel for the Respondent
Michael Zalev
HEARD: June 16, 2021
RULING ON MOTION
JARVIS J.
1The applicant (“the wife”)1 has brought a motion to have Alf Mamo (“the arbitrator”) removed as the parties’ arbitrator pursuant to sections 13 and 15(1) of the Arbitration Act, 1991, S.O. 1991, c. 17 (“the Act”). She claims that there is a reasonable apprehension that the arbitrator is biased, that he has not conducted the parties’ arbitration equally and fairly and has not treated her equally and fairly.
2The wife’s motion is opposed by the respondent (“the husband”).
3Sections 13, 15(1) and 19 of the Act provide as follows,
Challenge
13 (1) A party may challenge an arbitrator only on one of the following grounds:
Circumstances exist that may give rise to a reasonable apprehension of bias.
The arbitrator does not possess qualifications that the parties have agreed are necessary. 1991, c. 17, s. 13 (1).
Idem, arbitrator appointed by party
(2) A party who appointed an arbitrator or participated in his or her appointment may challenge the arbitrator only for grounds of which the party was unaware at the time of the appointment. 1991, c. 17, s. 13 (2).
Procedure for challenge
(3) A party who wishes to challenge an arbitrator shall send the arbitral tribunal a statement of the grounds for the challenge, within fifteen days of becoming aware of them. 1991, c. 17, s. 13 (3).
Removal or resignation of challenged arbitrator
(4) The other parties may agree to remove the challenged arbitrator, or the arbitrator may resign. 1991, c. 17, s. 13 (4).
Decision of arbitral tribunal
(5) If the challenged arbitrator is not removed by the parties and does not resign, the arbitral tribunal, including the challenged arbitrator, shall decide the issue and shall notify the parties of its decision. 1991, c. 17, s. 13 (5).
Application to court
(6) Within ten days of being notified of the arbitral tribunal’s decision, a party may make an application to the court to decide the issue and, in the case of the challenging party, to remove the arbitrator. 1991, c. 17, s. 13 (6).
Arbitration may continue
(7) While an application is pending, the arbitral tribunal, including the challenged arbitrator, may continue the arbitration and make an award, unless the court orders otherwise. 1991, c. 17, s. 13 (7).
Removal of arbitrator by court
15 (1) The court may remove an arbitrator on a party’s application under subsection 13 (6) (challenge), or may do so on a party’s application if the arbitrator becomes unable to perform his or her functions, commits a corrupt or fraudulent act, delays unduly in conducting the arbitration or does not conduct it in accordance with section 19 (equality and fairness). 1991, c. 17, s. 15 (1).
Equality and Fairness
19 (1) In an arbitration, the parties shall be treated equally and fairly. 1991, c. 17, s. 19 (1).
Idem
(2) Each party shall be given an opportunity to present a case and to respond to the other parties’ cases. 1991, c. 17, s. 19 (2).
4The following evidence and documents were filed:
(a) Affidavits from the wife sworn April 22, 2021 and June 10, 2021 (reply);
(b) Affidavit of the husband sworn May 27, 2021;
(c) Copies of Minutes of Settlement and a court Order, the Arbitrator’s Awards and communications between counsel and with the Arbitrator (included in the parties’ affidavits);
(d) Facta and case authorities.
5The following facts and procedural events are relevant:
(a) The parties were married on June 19, 2004 and separated on March 5, 2011. There are four children of the marriage ranging between 11 and 21 years of age;
(b) In earlier family law litigation, the parties settled their financial affairs by Minutes of Settlement dated February 19, 2014 (the “Minutes”);
(c) Paragraph 1 of the Minutes stated that the parties consented “to a multidirectional Order in the form attached as Schedule “A””. That Schedule was a draft Order dealing with parenting. The balance of the Minutes dealt principally with child support;
(d) Paragraphs 2 to 11 of the Minutes provided as follows:
- Commencing March 1, 2014, the Father shall pay to the Mother the following:
a) child support in the sum of $13,000 per month; and
b) 100% if the following section 7 expenses, to a maximum of $75,000 (net of tax benefits) per year, paid directly to the third parties:
i) private school tuition at Jewish Day School;
ii) Piano lessons;
iii) Gymnastics expenses;
iv) Swimming expenses;
v) Additional school and extracurricular activities as agreed upon by the parties;
vi) Summer camp; and
vii) Medical and dental expenses for the children not covered by medical insurance.
The child support set out in paragraph 2 of this Offer is based upon a shared parenting arrangement for the children, the Father’s annual income of $800,000, the Mother being imputed with an annual income of $50,000, and the Father paying net section 7 expenses to a maximum of $75,000.
The parties shall not incur additional section 7 expenses for the children without the written consent of the other party, such consent not to be unreasonably withheld and failing agreement, the issue of whether something constitutes a Section 7 expense (and if so, the extent of the parties’ respective shares of payment) will be summarily arbitrated by Mr. Alfred Mamo as a secondary arbitration, in accordance with the dispute resolution provisions of the multi-directional order.
The parties confirm that the current arrangements between them represent “special provisions” under the Child Support Guidelines that warrant the resolution pursuant to paragraph 2 of this Offer.
Commencing March 1, 2014, the Father will pay to the Mother spousal support in the amount of $1 per year.
The father will maintain the Mother on his extended health and dental coverage until the parties are divorced.
While required to pay child support, David will maintain the children on his medical, extended health and dental coverage for as long as it is available to him.
The parties acknowledge that priority has been given to child support over spousal support under section 15.3 of the Divorce Act. This priority has resulted in a reduced amount of spousal support to the Mother. A later reduction or termination of child support constitutes a change of circumstances for the purposes of either a subsequent application for the child support or an application to vary spousal support. For greater clarity, the Mother does not waive spousal support.
The child and spousal support in these Minutes of Settlement is fixed and non-variable until June 2018, save and except if there is a catastrophic change of financial circumstances of the Father or the Mother and/or a material change in the residential arrangements of the children. A catastrophic change is an involuntary loss of employment and income by the Father so as to make the child support completely unreasonable. If either party alleges a catastrophic change in financial circumstances or a material change in the residential arrangements of the children, then the matter will be resolved by Mr. Mamo in mediation/arbitration in accordance with the dispute resolution provision of the multi-directional order.
The parties will review child and spousal support in June 2018, through mediation/arbitration with Mr. Mamo. If either Mr. Mamo is unwilling or unable to act, the parties will use the dispute resolution provisions of the multi-directional order to select a substitute mediator/arbitrator. The parties will exchange the relevant financial disclosure as required by the guidelines in May 2018 in advance of the Review.
(e) Shortly after the Minutes of Settlement were signed, a consent Order was made by McGee J. on February 28, 2014 (“the Order”). This Order reflected what the parties had agreed about parenting in Schedule “A” to their Minutes. Among the Order’s many terms the parties agreed to a shared parenting arrangement wherein the children resided with each parent on a bi-weekly rotation schedule for alternating two and five day periods. Paragraphs 93-97 of the Order were entitled “Dispute Resolution” and provided as follows:
If the parties are unable to resolve a parenting issue that is designated in this multi-directional order as a matter for Mr. Mamo, then they shall mediate/arbitrate the issue with Alfred Mamo. For clarity’s sake, Mr. Mamo will deal with parenting disputes about minor changes to the schedule, extracurricular activities, including Summer camp, and such other parenting issues as contemplated in this multi-directional order. If Mr. Mamo is unwilling or unable to act, the parties shall select another mutually agreeable mediator/arbitrator or, failing agreement, will ask the Chair of the Family Law Section of the Ontario Bar Association, to choose the substitute mediator/arbitrator who has at least fifteen years of family law experience and choose from two names of qualified mediator/arbitrators chosen by each side. If Mr. Mamo or his substitute is required to deal with a parenting issue then he shall first receive the submissions of the parties in writing by email and at his discretion may attempt to mediate the issue and failing a resolution, he shall summarily resolve the issue based on the written submissions of the parties. The parties shall share equally the cost of the mediation/arbitration process subject to the right of the arbitrator to reapportion costs.
Mr. Mamo in conduction mediation/arbitration will be at liberty to direct that certain issues are to be addressed in counselling with Ms. Popielarzyk, including her ability to report to the Court if he deems it appropriate.
Mr. Mamo ‘s standard mediation/arbitration agreement and forms are attached as Schedule “A” to this Order and shall form part of this Order.
The mediation/arbitration or arbitration under this section will be considered a secondary arbitration and will be conducted under the Arbitration Act and the Family Law Act, R.S.O. 1990, c.F.3, as amended.
The parties hereby waive section 35 of the Arbitration Act.
(f) No reference was made in the Order to the Minutes: its support provisions have never been incorporated into a court Order;
(g) Shortly after the parties resolved their affairs one of the children started living primarily with her father in April 2014. Paragraph 10 of the Minutes which provided for mediation/arbitration pursuant to the Dispute Resolution provisions of the Order was engaged. In an Award dated February 4, 2015 Mr. Mamo reduced the child support by a modest amount and ordered costs payable by the mother;
(h) In June 2017 one of the other children decided that they wished to reside primarily with the mother. Neither party took any steps to vary the child support payable, the mediation/arbitration provisions of the Minutes were not engaged at that time;
(i) Paragraph 11 of the Minutes provided for an automatic review of child and spousal support in June 2018, this to be preceded by an exchange of financial disclosure in May. A mediation with Mr. Mamo followed on September 6, 2018. Prior to the mediation the father served an income report (“the Gobrin report”). The parties agreed to reduce the father’s child support on a temporary, without prejudice basis: they were unable to resolve matters on a final basis;
(j) There followed a series of procedural motions by the parties. On January 14, 2019 Mr. Mamo made a directional Award which dealt with disclosure, questioning and setting a three-day arbitration hearing to be completed by April 30, 2019 (this was subsequently scheduled for April 15-17, 2019). Among other terms, the father was to be questioned by February 15, 2019;
(k) Difficulties arose between the parties involving disclosure and scheduling the father’s questioning. On February 13, 2019 counsel for the mother suggested that the deadline for questioning the father be extended or that he be examined on February 15, 2019. Counsel for the father protested that one day’s notice to examine his client was unreasonable. He was not produced;
(l) Despite further negotiations, including a four-way March 6, 2019 settlement meeting, no resolution was achieved. The mother brought a motion to adjourn the arbitration on April 1, 2019 and to extend the deadlines set out in the January 14, 2019 Award. The father did not oppose the adjournment but requested when he delivered his responding material on April 4th that as an adjournment term there be awarded a temporary reduction in child support and that he be awarded costs. The parties’ submissions were heard on April 5, 2019;
(m) On April 10, 2019 Mr. Mamo granted the mother’s adjournment request, varied the timetable set out in his January Award and reduced child support on a without prejudice basis. The mother was directed to produce her expert’s report by July 15, 2019. Directions with respect to delivery of costs submissions were given;
(n) On April 17, 2019 a conference call was held by Mr. Mamo with counsel. The arbitration hearing was noted as having been set for a four-day period from September 9 to 12, 2019. Directions were given for the father’s questioning (on or before June 27, 2019) and for the mother (immediately after the father). The mother’s expert report was ordered to be delivered no later than August 26, 2019. No costs with respect to this step in the proceedings were ordered;
(o) On or about June 21, 2019, a few days before the parties’ questioning, one of the parties’ children (AH) failed to return to her father’s residence contrary to the parenting terms of the Order. The father took the position that the mother’s failure to facilitate the child’s return breached the Order and that until the child was returned (or a formal variation of the Order was made) the father would not be produced for questioning;
(p) After a teleconference between counsel and Mr. Mamo, the parties agreed to have the child interviewed for a Voice of the Child Report and, shortly afterwards, to vacate the start of the Arbitration scheduled for September 2019;
(q) On July 29, 2019 Mr. Mamo awarded the father costs of $10,250. These costs were not paid until the eve of this motion (i.e. on June 15, 2021);
(r) On September 9, 2019 counsel for the mother wrote to Mr. Mamo asking that he withdraw as arbitrator because the mother had formed the view that there was a reasonable apprehension of bias or real bias which made it inappropriate for him to continue as arbitrator. That letter catalogued the events giving rise the mother’s concerns. The father opposed the mother’s right to challenge the arbitrator and/or to initiate any such process because the 15-day challenge period mandated by s. 13(3) of the Act had expired. The mother confirmed that her position was based on a cumulative series of events and conduct;
(s) On September 20, 2019 Mr. Mamo declined to resign, setting out his reasons in a five-page endorsement, the relevant portions of which are the following:
I have considered Mr. Epstein’s position with respect to Ms. Spivak being out of time in terms of mounting a challenge pursuant to s.13(1) of the Arbitration Act. The section limits the challenge to an arbitrator to two grounds, the only one being applicable in this case is that allegedly there are “circumstances that give rise to a reasonable apprehension of bias”.
Based on Mr. Greenstein’s letter, the most recent event that is mentioned as an item of concern for Ms. Spivak is the Costs Endorsement dated July 28, 2019, and delivered by email to counsel on July 31, 2019. As no other “concerns” are referenced as grounds for the request being made by Ms. Spivak, the fifteen day period within which Ms. Spivak could challenge the arbitrator had clearly expired before the notice sent to the arbitrator in the form of the letter dated September 9, 2019.
The fact that Ms. Spivak’s concerns are cumulative makes the date of the last “incident” that much more important, based on the assumption that from Ms. Spivak’s perception, as she articulates it, no one event was sufficient to cause her to act.
Section 13(3) makes it mandatory that the person who wishes to challenge the arbitrator “shall send the arbitrator tribunal a statement of the grounds for the challenge within fifteen days of becoming aware of them”. The mandatory nature of the wording seems to indicate that there is no discretion in extending the time for the challenge to take place and no such extension has been requested in this case by Ms. Spivak.
Given the nature of the request now before me I do not want the response to the challenge to be simply based on a “technicality”.
Without deciding the issue, as to whether an extension of the time limit in s.13(1) is a possibility, I want to indicate that I would have declined to resign as arbitrator in this matter even if Mr. Greenstein’s letter to me was delivered within the period required under s.13(3).
I do not intend to comment on the content of the letter except to say that it seems that the “concerns” fall generally into three categories:
(a) Awards made with respect to substantive issues or costs;
(b) Complaint about the arbitrator doing something, or not doing something, in circumstances where no motion was brought with respect to the relief mentioned; and
(c) Decisions made during informal case management discussions which resulted in consensus relating to the matters under discussion.
- Looking at Ms. Spivak’s concerns as objectively as I can, I do not consider the incidents set out by Mr. Greenstein (if they were to be accurate, which is not admitted) to reflect conduct that meets the test adopted by Justice Gray in the case of McClintock v. Karam, 2015 ONSC 1024 (Ont. S.C.J.) quoting Justice de Grandpre’s question:
“what would an informed person viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not that Mr. Crowe, whether consciously or unconsciously, would not decide fairly.”
I will not comment on Ms. Spivak’s subjective “concerns”, except to say that I can categorically state that there is no ingredient in the Spivak and Hirsch case that leads me to be biased in favour of or against one of the parties. As I have emphasized in my Awards to date, I am mindful of my obligation to treat the parties fairly and equally and have to date endeavored to do that, and will continue to do so. From my perspective, there is nothing that would lead me to consciously or unconsciously not decide the issues before me fairly, and if there was, I would resign without being requested to do so.
I would only add that in my many years of dealing with family law cases as counsel, mediator or arbitrator, I am mindful of the fact that parties may form opinions with respect to the trier of fact, and his/her inclinations or preferences. This is especially so in high conflict cases such as this. I perceive Ms. Spivak challenging my ability to continue as arbitrator as being part of that dynamic, which includes the “wear and tear” of the litigation process, especially when interim decisions have to be made thereby, in the eyes of some litigants, creating a “winner” and a “loser” with respect to the issue(s) in question.
Lastly, I want to reassure Ms. Spivak and Dr. Hirsch that pursuant to s.19 (1) of the Arbitration Act, I will continue to treat the parties throughout the arbitration process equally and fairly.
(t) The wife started an Application to remove Mr. Mamo as arbitrator on October 3, 2019 and, on February 6, 2020, Christie J. directed that the matter proceed to a long motion to be scheduled by the court;
(u) On May 20, 2021 Kaufman J. made an Order granting leave to the parties to file material in excess of what was permitted pursuant to the Notice to the Profession effective January 4, 2021.
Discussion and analysis
Discussion and analysis
6There is no dispute between the parties about the test to be applied in determining either what amounts to a reasonable apprehension of bias or the evidentiary onus on the claimant. In A.M. v. J.M.2, an appeal involving a parenting dispute, the Court of Appeal dealt with both.
The test for reasonable apprehension of bias was recently stated by this court in Martin v. Martin, 2015 ONCA 596, 127 O.R. (3d) 1, at para. 68: “Would a reasonable and informed person viewing the matter realistically and practically and having thought it through conclude that the judge, consciously or unconsciously would not decide fairly”. The threshold for finding a reasonable apprehension of bias is extremely high. There is a strong presumption in favour of the judge’s impartiality and the question of a reasonable apprehension requires a highly fact-specific inquiry...3
7These principles equally apply to arbitration proceedings.4
8Circumstances in which an arbitrator was disqualified where apprehended or actual bias was demonstrated and which have invited the proscriptive challenge limitation in s.13(3) of the Act are often accompanied by, or overlap, complaints pursuant to s. 19 of the Act (equality and fairness). Examples include:
(a) Where the arbitrator has, or had, a personal relationship with one of the parties or their counsel5;
(b) The arbitrator’s actions strongly suggested during the mediation preceding formal arbitration that he had already made up his mind about the issues in dispute6;
(c) Where contractual pre-conditions to arbitration were ignored7;
(d) Where a party was either not given a fair opportunity to present their case and respond to the other party’s case or where the procedural terms of the parties’ Arbitration Agreement were not followed.8
9The wife’s complaints involve both bias and unfair treatment. As noted in A.M., a “highly specific fact-specific inquiry” is required. In her counsel’s letter of September 9, 2019 the wife referenced sixteen events that, cumulatively, gave rise to (“triggered”) her disqualification request, none of which was suggested to be more weighty than another or, on its own, sufficient to successfully ground her bias allegation but when viewed in the aggregate amounted to her not being “treated fairly and equally”. One event (i.e. #2) involved the wife’s complaint that Mr. Mamo had not initiated an increase in retroactive child support after one of the children began to live with her mother even when there was no mediation/arbitration process then underway. Another (i.e. #3) was a three-hour limitation on the husband’s questioning. A couple of the listed events were neutral or background narrative in content (i.e. #4 and #5 dealing with timetables and conference scheduling). Several others dealt with the wife’s disagreement with the arbitrator’s reasons for awarding the husband costs (i.e. #6, and #9-#14). Still another event (i.e. #15) was the wife’s complaint that Mr. Mamo had failed to mention in his costs Award her position about when the arbitration should proceed (three months instead of the five months directed).
10The arbitrator observed that the wife’s concerns fell into three categories although he did not directly respond to them except (and, possibly, understandably) in a general fashion. In his submissions, Mr. Greenstein mostly focussed on three principal areas, the first being the arbitrator’s failure to appreciate the circumstances surrounding the husband’s disclosure and scheduling his questioning; the second dealing with the arbitrator’s observations when dealing with costs that the wife was acting unreasonably; and the third being the arbitrator’s alleged failure to insist that the father be compelled to abide by the award timetable dealing with his questioning when he refused to be produced after the child did not return to his care as required by the Order. The wife believed that she was not being afforded the same litigation or procedural “latitude” as the husband: he contends that that the wife “made strategic decisions in the litigation that…led to certain results” and “not happy with those results … has made another strategic decision to change the decision maker”. The wife’s complaints related more to litigation conduct between the parties and their lawyers.
11A review of the evidence, including the Awards, yields the following observations:
(a) There is no evidence that at any time before the release of the costs Award the wife challenged the impartiality of the arbitrator or the fairness of his treatment of the parties, in particular of her9. There was no evidence either of any intervening event between the release of the Award and Mr. Greenstein’s September 9, 2019 letter to Mr. Mamo that would have contributed to the wife’s challenge;
(b) When in late June 2019 AH refused to return to her father’s care, the wife took the position, contrary to paragraph 94 of the Order, that she would not return the child or take her to the named counsellor because she didn’t trust her and so another counsellor had to be engaged. This position must be considered in light of the wife’s complaint that the arbitrator didn’t sanction the father for refusing to be questioned, contrary to the timetable deadline, until the she facilitated the child’s return to his care;
(c) All the Awards detailed the circumstances and evidence relevant to the award made. Context was provided. Excepting the actual costs disposition, neither party was preferred to the other. For example, in the Award dated January 14, 2019 Mr. Mamo granted the wife’s request for more timely (although less broad) disclosure from the husband and set out a tight timetable for the hearing as requested by the husband. At that juncture the wife had already had in her possession for about six months a report from the husband’s expert that indicated a very significant income decline prima facie warranting a not insignificant support reduction. Time was of the essence. The matter was high conflict. In the arbitrator’s April 10, 2019 Award, the wife’s request to adjourn the hearing was granted, further directions were given to ensure the husband’s disclosure and questioning, his motion to strike significant portions of her affidavit evidence was denied and the amount of support reduced as a term of the adjournment, a not uncommon disposition. There was no challenge of that Award until after the costs Award was released;
(d) A review of the costs Award discloses no error in principle and while this Court is not exercising an appellate function, there is nothing in those reasons that suggest other than a balanced approach. That Mr. Mamo may not have referenced certain arguments made by the wife or given them less weight than she preferred does not mean that he was biased, consciously or unconsciously, or that he was treating the wife unfairly.
12The evidentiary onus required for a finding of a reasonable apprehension of bias is “extremely high”. Unlike the McClintock case to which the wife referred the Court the language of the Awards does not suggest that Mr. Mamo had already made up his mind about the issues to be determined in the arbitration. Bias, as observed by Newbold J. in Allied, “denotes a state of mind that is in some way predisposed to a particular result, or that is closed with regard to particular issues.”10
13In the context of a high conflict family law litigation it is not uncommon that a party against whom an Order (or Award) is made may feel that they have not been heard or not treated fairly. That may explain the wife’s failure to pay the costs award for almost two years. But the wife’s concerns must be viewed in the context of the entirety of the arbitration proceedings and the strong presumption of impartiality. In the circumstances of this case I am not persuaded that the evidence rises to the high level required to meet a reasonable apprehension of bias.
Disposition
Disposition
14The wife’s motion to disqualify Mr. Mamo as arbitrator is dismissed. Given this disposition, it is not necessary to address the husband’s preliminary objections to what he contended was inadmissible evidence from the wife involving hearsay and disclosure of privileged settlement and related information.
Costs
Costs
15The following directions shall apply with respect to costs:
(a) The husband shall deliver his submissions by August 23, 2021;
(b) The wife shall deliver her submissions by September 1, 2021;
(c) Reply (if any) by the husband by September 8, 2021;
(d) All submissions shall be single page, double-spaced. In the case of (a), (b) and (c) the limit shall be four pages; reply shall be two pages. These submissions shall be filed in the Continuing Record;
(e) Offers to Settle, Bills of Costs and any authorities upon which a party may wish to rely shall be filed by the above deadlines but shall not form part of the Continuing Record;
(f) Counsel are to advise the judicial assistant (Laura.Gosse@ontario.ca) when they have filed their material and are directed to forward a copy of their submissions to her.
Justice David A. Jarvis
Date: August 10, 2021
Footnotes
- The parties were divorced on June 2, 2014. They are referenced as “wife” and” husband” for convenience only.
- 2016 ONCA 644.
- Ibid, at para. 55.
- Allied Truck Services Inc. v. Jeffrey Swift et al, 2015 ONSC 5496, at para. 12.
- Rothesay Residents Assn Inc. v. Rothesay Heritage Preservation & Review Board, 2006 NBCA 61; W.L.S. v. K.B.G., 2010 ONSC 4167.
- McClintock v Karam, 2015 ONSC 1024.
- Kainz v Potter, 2006 CanLII 20532 (ON SC) at paras 46 and 51-52.
- Hercus v. Hercus, 2001 O.J. No. 534; Surowiec v. Surowiec, 2016 ONSC 1095.
- In a September 16, 2019 email from Mr. Greenstein to Messrs. Epstein/Zalev, Mr Greenstein said that the wife’s position was “formulated recently”: Exhibit “F’ to the husband’s affidavit sworn on May 27, 2021.
- Supra #4 at para. 20.