Overview

[1] A hearing with respect to the enforcement of a Family Arbitration Award took place before me via Zoom on February 2, 2021.

[2] The applicant mother brings a Request to Enforce a direction by Phil Epstein, Q.C., dated April 7, 2020 which the applicant considers an arbitral award pertaining to the choice of private schools for the parties' son VG, since the parents could not agree on the issue. The respondent disagrees that Mr. Epstein's direction, contained in an email, amounts to an arbitral award and opposes the enforcement request.

[3] For the reasons that follow, I find that Mr. Epstein's email constitutes a secondary arbitration award under the Family Law Act and is enforceable. I order that the parties proceed forthwith in respect of Mr. Epstein's award as an order of this court, and I award costs in the amount of $8,475 (all-inclusive) to the applicant.

Facts

[4] The parties began cohabiting in October 2007 and separated in January 2010. They have a son, VG, who is now 12, born March 26, 2009. VG is currently in Grade 6 attending Rosedale Day School in Toronto.

[5] The parties entered into a Partial Separation Agreement dated July 12, 2010 whereby they agreed to joint custody of VG.

[6] The parties originally agreed to Mr. Epstein acting as an arbitrator pursuant to a Mediation-Arbitration Agreement dated November 11, 2010. On June 25, 2013, Mr. Epstein issued a Procedural Award which determined that he had jurisdiction to decide on issues of VG's private school.

[7] The parties signed a new Mediation/Arbitration Agreement with Mr. Epstein dated February 6, 2014. Under section 9.5 of this Agreement, Mr. Epstein may deliver notices, awards or other communications to the parties via ordinary mail, fax or e-mail.

[8] On July 21, 2014, Mr. Epstein issued a consent award that determined that VG would attend the Rosedale Day School commencing September 2014. Paragraph 2 of the Consent Award states that:

The father agrees that the child will remain in private school until Grade 8, and thereafter the parties will have to reach agreement on where VG will go to high school. That issue may have to be resolved as a secondary arbitration, but it is most unlikely that I will be arbitrating at that time. Accordingly, the parties will have to select a substitute arbitrator for that review.

[9] Mr. Epstein issued a Multidirectional Award dated January 25, 2016, paragraph 24 of which states, "If the parties are unable to agree on major decisions relating the child's education, Mr. Epstein will summarily resolve the issue." Earlier in this Award, educational programming is defined as "psycho-educational assessment or testing, school choice or tutors".

[10] On April 7, 2020 at 10:19 a.m., Mr. Epstein sent an email to the parties, the characterization of which is the subject matter of this hearing:

Dear Lucy and Joe,

Firstly, thank you both for your good wishes and concerns.

Joe agrees that VG should go to a better school and his first choice would be UCC. If VG is not accepted at UCC then Sterling Hall, York School or Crescent would be other suitable choices. Accordingly, Lucy should prepare the necessary applications. I am not sure how the schools are going to process applications in these difficult times, but I leave it to the two of you to figure that out.

Thank you for co-operating on this important issue.

Phil Epstein

[11] For the balance of 2020, the relevant correspondence (or excerpts thereof) is as follows:

April 7, 2020 at 10:56 a.m. - the respondent responded to Mr. Epstein's email stating in part:

I just don't feel there are only 4 schools he should attend & that 2 of the schools (Sterling & Crescent) are prohibitive because of their distance

As I told you Mr. Epstein, the only choice I see of these 4 a is (sic) UCC because of football, which VG desperately wants to play

A lot can change in the next 3.5yrs until grade 9, which would mean the York School could also be a possibility if VG doesn't end up playing football.

When it opens up, please give me some dates to check out UCC & York.

April 7, 2020 at 11:23 a.m. - the applicant responds further commenting on various schools

April 7, 2020 at 11:38 a.m. - the respondent further responds in part:

Please make 2 appointments when available

UCC & York school

You can also add De Lasalle as well, since we are both familiar with the school

August 23, 2020 - the applicant sends the respondent an email stating in part:

If we are not applying to Sterling or Crescent as indicated in Mr. Epstein's award, my 3rd choice would be UTS followed by St. Mikes. I am happy to apply to all four. Please advise.

On September 4, 2020, Mr. Epstein wrote to the parties:

Mr. Lee is correct that I have resigned but that does not detract from the fact that the parties agreed and I ruled on the school issue before I resigned. My resignation does not change that. I decline to comment on the fee issue and leave that to the parties to sort out.

Summary of the Parties' arguments

[12] The applicant submits that Mr. Epstein's April 7, 2020 email about choice of schools constitutes a binding arbitral award for the following reasons:

(a) The parties specifically chose Mr. Epstein to decide on choice of school issues where they could not come to an agreement themselves.

(b) Mr. Epstein had jurisdiction under the various mediation-arbitration agreements to decide on the choice of schools.

(d) The wording of Mr. Epstein's April 7, 2020 direction is sufficiently clear to constitute an award and does not have to formally refer to itself as an arbitral award.

(e) Mr. Epstein's September 4, 2020 email confirms that Mr. Epstein himself considered his April 7, 2020 direction to constitute an arbitral award.

(f) The respondent has not appealed Mr. Epstein's April 7, 2020 award and the time for appeal has now passed.

[13] The respondent disagrees that Mr. Epstein's April 7, 2020 email is a binding award and argues as follows:

(a) Mr. Epstein's email lacks the clarity, certainty and specificity in direction that an enforceable award would have.

(b) The email only conveys Mr. Epstein's impression that the parties had some consensus over choice of schools.

(c) The imprecise wording of Mr. Epstein's email would make it difficult to reduce it to an order, an indication that it is not akin to an arbitral award.

(d) Following Mr. Epstein's resignation (due to health issues), a summary award dated June 26, 2020 was granted naming Ilana Tamari as successor Mediator/Arbitrator, and she is the appropriate decision-maker who should be tasked with deciding the choice of schools, if the parties cannot agree.

(e) Mr. Epstein's Consent Award dated July 21, 2014 is still operational and directs that VG continue at Rosedale Day School until Grade 8 is completed, or further agreed upon, or until a parenting coordinator is appointed.

(f) Although the applicant labelled Mr. Epstein's decision an "award", her language does not suggest that she considered the direction a final decision.

(g) At no time between April 2020 and September 2020 was it made clear that Mr. Epstein had delivered a binding award and Mr. Epstein's opinion of his own conduct, especially following his resignation, is not determinative.

Analysis

[14] There is no doubt that the parties retained Mr. Epstein to make a "choice of schools" decision where they were unable to agree, see Mr. Epstein's Multidirectional Award. This is also clear from the evolution of Mr. Epstein's med-arb agreements. Further, the med-arb agreement(s) make clear that Mr. Epstein was entitled to issue awards by email and summarily, which indicates that Mr. Epstein's decision(s) may not possess the same formality as a typical judicial or arbitral decision.

[15] The respondent acknowledges that Mr. Epstein could issue awards via email but submits that the April 7, 2020 direction is lacking in clarity, certainty and specificity. I disagree.

[16] I consider it significant that the first substantive paragraph of Mr. Epstein's April 7, 2020 email commences with the words "Joe agrees that VG should go…" As confirmed at the hearing, Ms. Epstein's involvement did not spring out of a vacuum. The parents hired him and paid him to perform a certain function. When the parents could not agree on an issue within his mandate, they turned to Mr. Epstein for a decision. Mr. Epstein engaged in hearing the parties out and issued his April 7, 2020 decision.

[17] Furthermore, the wording of Mr. Epstein's decision is clear. I would describe it as deciding that the "choice of schools" is the following: Upper Canada College (UCC), Sterling Hall, York School and Crescent School. UCC would be the first choice but, if VG is not accepted there, then the other three would be acceptable. I also consider it significant that Mr. Epstein wrote "Lucy should prepare the necessary applications." This language is consistent with a decision and a direction by Mr. Epstein, not an invitation for further discussion about choice of schools. The "I leave it to the two of you to figure that out" is not, as the respondent submits, an invitation to continue discussing school choice, but rather a comment about what the parents should do given that, in the early days of COVID-19, it was unclear about how private schools were going to process applications.

[18] I disagree that Mr. Epstein's previous Consent Award from July 2014, when VG was 5 years old, which stipulated that he continue at Rosedale until Grade 8 is completed "overrides" Mr. Epstein's April 7, 2020 direction. Clearly, VG was identified as a very bright, likely gifted student, and both parents were engaged in a discussion about moving him out the Rosedale Day School into a more appropriate academic environment. This is clear from Mr. Epstein's words "Joe agrees that VG should go to a better school."

[19] I also note that, while the respondent clearly quibbled with Mr. Epstein's April 7, 2020 direction, at no point, did he argue that Mr. Epstein's decision was not an arbitral award, at least until the within proceeding. I appreciate that the respondent is not a lawyer, however, on the evidence that was provided to me, the respondent did not disagree when the applicant called Mr. Epstein's direction an "award", or when Mr. Epstein himself wrote on September 4, 2020 "the parties agreed and I ruled on the school issue before I resigned." Had the respondent been surprised to hear that the parties' mere discussions had been elevated to a legal ruling, I would have expected him to have responded to the contrary.

[20] I also find that Mr. Epstein's direction constitutes a "secondary arbitration" under the Family Law Act and, as such, the formal requirement of section 38 of the Arbitration Act did not have to be met. I also agree that Regulation 134/07 of the Arbitration Act sets out standard provisions for secondary arbitration agreements made on or after September 1, 2007, and not secondary arbitration awards, therefore the lack of such provisions in Mr. Epstein's April 7, 2020 award is not a bar to the award being considered a secondary arbitration award.

[21] Finally, I observe, although this is not the basis of my decision, that the respondent indicated in his April 7, 2020 11:38 a.m. email that he considered UCC and York School acceptable schools. This overlaps with two of the four schools identified in Mr. Epstein's impugned email. This confirms my view that Mr. Epstein's direction dated April 7, 2020 was a fair reflection of the parties' positions on school choice at the time, and a considered decision amounting to an arbitral award.

[22] I order that Mr. Epstein's email of April 7, 2020 be treated as a secondary arbitration award under section 59.7 of the Family Law Act, and under section 59.8(4), I make an order in the same terms as the award.

Costs

[23] The parties made submissions on costs. They agreed that the successful party is entitled to costs. They also indicated that their costs were comparable, in the range of $7,500 plus HST. The applicant retained senior and associate counsel whose rates at $400 and $195 an hour respectively, seem reasonable to me. Pursuant to Rule 24 of the Family Law Rules, I order that the respondent pay cost fixed in the amount of $8,475 to the applicant within 30 days of the release of my order.

[24] This endorsement should be treated as an Order that is effective, binding and enforceable without the requirement of a formal entry. If, however, an appeal or a motion for leave to appeal is brought to an appellate court or if the parties prefer, they shall submit a formal judgment or order in WORD format for my consideration through the family law judicial assistant Patrizia Generali at Patrizia.Generali@ontario.ca with confirmation that the terms of the draft judgment or order have been agreed upon.

Pinto J.

Released: February 3, 2021

COURT FILE NO.: FS-20-19698

DATE: 20210203

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Lucy Carman Troisi

Applicant

– and –

Joseph Gillen

Respondent

REASONS FOR JUDGMENT

Pinto, J.

Released: February 3, 2021

Troisi v. Gillen, 2021 ONSC 873

Case Summary

Overview

Facts

Summary of the Parties' arguments

Analysis

Costs

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Financial Outcomes

Issues