Monteiro v. Monteiro, 2022 ONSC 2642
Court File and Parties
Court File No.: 8381/22 Date: 2022/04/29 Superior Court of Justice – Ontario
Re: April Elizabeth Monteiro, Applicant And: Mark Edward Monteiro, Respondent
Before: Justice A. K. Mitchell
Counsel: N. Pringle, for the Applicant M. Bennett, for the Respondent
Heard: April 21, 2022 via videoconference
Endorsement
[1] The parties were married on August 11, 2001 and separated on June 28, 2012. They share two children, Vanessa age 15 years, and Keeley, age 13 years. In these proceedings, the applicant seeks a court order amending the parenting time arrangement provided for in the most recent amendment to the separation agreement made November 4, 2021.
[2] The respondent brings this motion seeking to stay or dismiss these proceedings under s. 7 of the Arbitration Act, 1991 arguing the separation agreement signed by the parties on April 29, 2014 contains a dispute resolution clause which requires the issue of parenting time, among others issues, to proceed to binding arbitration, not litigation.
[3] Leaving aside the allegations and accusations contained in the affidavits of the parties filed in support of their respective positions on this motion, the issue of whether the dispute resolution clause is binding on the parties is a legal issue, not a factual one. The conduct of the parties and the history of these proceedings, generally, while providing interesting colour, has little relevance to the issue to be decided on this motion.
[4] As an aside, I note that counsel for the parties are the same counsel who represented the parties during the negotiation of the separation agreement, including the dispute resolution clause.
[5] Section 7 of the Arbitration Act provides:
7(1) if a party to an arbitration agreement commences a proceeding in respect of a matter to be submitted to arbitration under the agreement, the court in which the proceeding is commenced shall, on the motion of another party to the arbitration agreement, stay the proceeding.
[6] The issue on this motion is whether the dispute resolution clause contained in the separation agreement constitutes an “arbitration agreement” as that term is defined in the Arbitration Act and therefore enforceable under s. 7 of the Arbitration Act.
[7] The dispute resolution clause contained in the separation agreement reads:
6. DISPUTE RESOLUTION
6.1 If Mark and April disagree about a reviewable or variable term of this agreement, they will try to resolve the dispute through negotiation, either between themselves or with their respective counsel.
6.2 If Mark or April seeks a change in parenting, child support, spousal support, or life insurance, he or she will give the other, in writing: (a) notice of the proposed change, (b) evidence supporting the proposed change, and (c) any answer to requests for information from the other party necessary to determine the issue.
6.3 A request under section 6.2(c) will be answered within 30 days.
6.4 After exchanging any information required by this Agreement, Mark and April will meet personally or with counsel to resolve the issues in dispute. If they come to an agreement, Mark and April will sign and date an amending agreement before witnesses.
6.5 If Mark and April cannot agree within 60 days of the request for review or variation, they will try arbitration. They will jointly select an arbitrator at the time the issue arises.
6.6 Mark and April will share the costs of arbitration on a 50/50 basis.
6.7 The arbitrator's decision shall be binding on the parties. If neither party address the dispute by this process and no further action is taken on an issue in dispute within the required 60 days as set out in the separation agreement, the matter is at an end and the issue cannot be raised at a later date.
[8] Ontario Regulation 134/07 enacted under the Arbitration Act (the “regulation”) deals with family arbitrations. A “family arbitration” is one which deals with matters that could be dealt with in a marriage contract, separation agreement, cohabitation agreement or paternity agreement under Part IV of the Family Law Act and is conducted exclusively in accordance with the law of Ontario or of another Canadian jurisdiction.
[9] Subsection 2.(2)(b) of the regulation provides that every “secondary arbitration agreement” made on or after April 30, 2008 shall contain the provisions set out in paragraphs 1, 2 and 3 and subparagraphs 5 i, ii and iii of subsection (4). Those provisions provide:
The arbitration will be conducted in accordance with, (choose either i or ii) i. the law of Ontario, and the law of Canada as it applies in Ontario, or ii. the law of………………………..(name other Canadian jurisdiction), and the law of Canada as it applies in that jurisdiction.\
Any award may be appealed as follows: (choose either i or ii) i. A party may appeal the award in accordance with subsection 45(1) of the Arbitration Act, 1991. ii. A party may appeal the award on, (choose one or more of the following) A. a question of law, B. a question of fact, or C. a question of mixed fact and law.
The arbitrator for this arbitration is………………………….(name of arbitrator).
I,…………………………..(print name of arbitrator), confirm the following matters: i. I will treat the parties equally and fairly in the arbitration, as subsection 19(1) of the Arbitration Act, 1991 requires. ii. I have received the appropriate training approved by the Attorney General. iii. The parties were separately screened for power imbalances and domestic violence and I have considered the results of the screening and will do so throughout the arbitration, if I conduct one.
[10] “Secondary arbitration” is defined as having the same meaning as in s. 59.7(2) of the Family Law Act. Section 59.7(2) defines a “secondary arbitration” as a family arbitration that is conducted in accordance with a 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.
[11] I find that the dispute resolution clause contained in the parties’ separation agreement reproduced above, was intended to provide for secondary arbitration between the parties (as that term is defined in s. 59.7(2) of the Family Law Act), in the event a dispute arose between them with respect to parenting time.
[12] The regulation is mandatory and applies to all secondary arbitrations. The dispute resolution clause contained in the separation agreement does not contain the necessary formalities (reproduced above) and, therefore, does not constitute an arbitration agreement for purposes of the Arbitration Act. Accordingly, s. 7 of the Arbitration Act has no application and cannot be invoked to stay these proceedings.
[13] I have adopted the approach taken in Horowitz v. Nightingale, 2017 ONSC 2168. In Horowitz the court rejected the suggestion that where arbitration is intended as part of a dispute resolution clause contained in an agreement, the court should endeavor to carry out the intentions of the parties despite a lack of technical compliance with the formalities of the regulation.
[14] This court is without jurisdiction to read into the dispute resolution clause the formalities required by the regulation. Consequently, a failure to comply with the requirements of the regulation is fatal to the enforcement of the arbitration provisions contained in the dispute resolution clause.
[15] Motion dismissed. As agreed by the parties, there shall be no order with respect to costs of the motion.
A.K. Mitchell Justice A.K. Mitchell Date: April 29, 2022