Tenenbaum v Pollock, 2023 ONSC 2701

COURT FILE NO.: FS-21-25660 DATE: 20230502 CORRECTION RELEASE DATE: 20230721

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Eli Tenenbaum, Applicant AND: Abigail Ruth Pollock, Respondent

BEFORE: M. Kraft, J.

COUNSEL: Self-represented, Applicant Jaret Moldaver, for the Respondent

HEARD: May 2, 2023

Correction Endorsement

Nature of the Motion

1. The respondent, Abigail Ruth Pollock (Abigail”), brings a motion to incorporate and enforce paragraph 60 of the Final Award of the Arbitrator, Michael Kleinman, dated October 11, 2023 (“Kleinman Award”). Abigail also seeks costs of this motion and two 14B motions she brought dated December 2 and 5, 2022, in which she sought the same relief.
2. Abigail’s motion was initially returnable on April 20, 2023. Eli sought an adjournment of the motion to enable him to retain counsel and file responding material. On April 20, 2023, I granted Eli one last opportunity to serve and file responding material by April 28, 2023, and to pay costs of the April 20, 2023, attendance in the sum of $1,700, with 50% to be paid by May 2, 2023, by 4:00 p.m. The motion was to be returnable on May 4, 2023. However, it was moved to today because of the SCJ Spring conference.
3. Eli filed two affidavits (April 27^th and April 28^th, 2023) and a Factum for the motion in accordance with my Endorsement. Eli did not, however, retain counsel despite his submissions before me on April 20, 2023, that a third party, Mr. Hillel, had spoken to attorneys on his behalf who were going to be able to assist him. Instead, Eli attached as Exhibit “A” to his affidavit, sworn on April 27, 2023, an email he sent to potential counsel on April 20, 2023, at 9:21 a.m., prior to the attendance before me on that same date, and a response in which Mr. Dominitz advised Eli tht he could not assist him, which was known to him before he appeared in front of my on April 20^th, 2023. Eli also attached as Exhibit “B” to this April 27^th affidavit an email from Mr. Chris Mamo, dated January 27, 2022, indicating his inability to assist Eli as counsel. This email was 14 months prior to the April 20, 2023 attendance. There was no evidence, whatsoever, put on the record by Eli that he took any steps to find counsel as he clearly indicated he would be doing between April 20^th, 2023 and April 27^th, 2023, when he filed his responding material.
4. The respondent, Eli Tenenbaum (“Eli”), seeks to dismiss the motion. He argues that the Kleinman Award should not be incorporated into an order of this court because he tried to appeal the Kleinman Award and was told by this Court to do so directly with Mr. Kleinman and Mr. Kleinman would not respond to his emails; Mr. Kleinman did not consider the best interests of the children and, as a result, the Kleinman Award does not follow the law and should not be incorporated into an order. Eli put no evidence on the record that the Court gave him the advice to appeal the Kleinman Award before Mr. Kleinman.

Issue to be Decided

5. The only issue for me to decide is whether paragraph 60 of the Kleinman Award should be incorporated into an order of this court.

The Law

6. Section 59.6(1) of the Family Law Act, R.S.O. 1990, c.F.3 (“FLA”) provides that a family Arbitration Award is enforceable only if, a. The family Arbitration Agreement under which the Award is made is made in writing and complies with any regulations made under the Arbitration Act, 1991. b. Each of the parties to the agreement receives independent legal advice before making the agreement. c. The requirements of section 38 of the Arbitration Act, 1991 are met (formal requirements, writing, reasons, delivery to parties); and d. The Arbitrator complies with any regulations made under the Arbitration Act.
7. Section 59.8(2) of the FLA provides that, if there is already a proceeding between the parties to the family arbitration Agreement, the party entitled to enforcement shall make a Motion in that proceeding rather than an Application.
8. In this matter, Eli commenced the within Application on September 14, 2021, prior to executing a Mediation/Arbitration Agreement.
9. The parties were never civilly married. They were married in accordance with the laws of Judaism and are Orthodox Jews.
10. In the Fall of 2013, after the parties’ religious marriage, Abigail relocated from Toronto to New York and the parties began to cohabit on November 11, 2013.
11. They have two daughters, D. age 7 and G. age 6. D. was born in New York.
12. In January 2016, Abigail and D. relocated to Toronto while Eli continued to work in New York and commute between the two cities.
13. Abigail is the primary parent to both children. She has made all major and day-to-day decision for the children. This is not disputed.
14. On June 3, 2021, the parties separated after having lived together for about 7 ½ years.
15. As indicated above, on September 14, 2021, the within Application was issued. Abigail filed an Answer on November 15, 2021.
16. On December 20, 2021, the parties executed a Mediation/Arbitration Agreement with Mr. Kleinman.
17. Both parties were represented when the Mediation/Arbitration Agreement was signed. At that time (December 20, 2021), Eli was represented by Stephen Codas and Kristy Warren of Epstein Cole, LLP. It is agreed that a. Kristy Warren signed Eli’s Certificate of Independent Legal Advice, which Eli acknowledged in the agreement; and b. Jaret Moldaver executed a Certificate of Independent Legal advice to the Mediation/Arbitration Agreement, which Abigail acknowledged in the agreement.
18. From January 31, 2022, to March 1, 2022, Eli was self-represented.
19. From May 2, 2022, to May 27, 2022, Eli was represented by Gary Joseph.
20. Eli has been self-representing since May 27, 2022.

The Subject Matter of the Kleinman Award

21. The parties attended mediation with counsel before Mr. Kleinman on January 4, 2022. Resolution was not achieved at mediation.

22. Both parties brought parenting and support motions before Mr. Kleinman which were originally returnable on March 23, 2022. At Eli’s request, the motions were adjourned to April 27, 2022, and then to May 19, 2022, with terms.

23. Both parties had filed affidavits and financial statements for the parenting and support motions. Mr. Kleinman had a record of evidence before him when he made awards.

24. On March 24, 2022, Mr. Kleinman made an Award requiring Eli to pay child and spousal support to Abigail in the sum of $15,000 within 30 days. He also noted in this award that:

    “Father has been in recent receipt of significant funds, including over $300,00 CAD allegedly borrowed (but not yet repaid) in 2021, of which $35,000 USD in December 2021, just a few months ago (Exhibits C and D to his affidavit) and $61,606.51 CAD on January 24, 2022 (Exhibit C to the mother’s reply to affidavit). These funds are neither reflected as income nor as assets on the Father’s Financial Statement, raising the obvious question: Where has all the money gone? ”

25. Eli did not comply with the March 24, 2022, award.

26. Two days later, on March 26, 2022, Eli discharged his counsel and chose to self-represent when he filed a notice of change in representation.

27. On April 27, 2022, Mr. Kleinman made a further Award that in addition to the payments totalling $15,000 under his award dated March 24, 2022, Eli was to pay Abigail the further sum of $5,000 on account of child support, spousal support and costs thrown away by May 12, 2022. Eli did not comply with the April 27, 2022, award

28. On May 12, 2022, Mr. Kleinman made a further award that in addition to the $15,000 Eli had been ordered to pay on March 24, 2022, and the additional $5,000 Eli had been ordered to pay on April 27, 2022, Eli was to pay a further $10,000 to Abigail on account of child support, spousal support and costs thrown away by making a payment of $5,000 by June 15, 2022, and a payment of $5,000 by July 15, 2022. Until Eli complied with Mr. Kleinman’s awards, he was not entitled to take further steps or seek further relief in this matter. If by August 15, 2022, Eli was not in default of Mr. Kleinman’s awards, he was to re-attend to complete his Questioning before August 31, 2022, and the parties’ motions were to be returned before Mr. Kleinman by September 15, 2022. If, however, Eli remained in default of Mr. Kleinman’s awards by August 15, 2022, then his pleadings and evidence filed in the arbitration were to be struck and Abigail was to seek directions from Mr. Kleinman as to how she should proceed with an uncontested hearing pursuant to rule 1(8.4) of the FLRs.

29. Eli did not comply with the May 12, 2022, award.

30. Eli does not dispute that he was in breach of all three of Mr. Kleinman’s awards in his materials filed on this motion.

31. On July 7, 2022, Eli served a 14B motion in this court seeking leave to bring a motion from the temporary arbitration award made by Mr. Kleinman on the basis that Mr. Kleinman’s ruling did not follow the law properly. The Kleinman Award refers to this 14B motion at paragraph 9. No ruling was ever received, and it is unknown as to whether Eli filed this 14B motion with this court or served it on Abigail without filing it.

32. On August 12, 2022, Eli emailed Mr. Kleinman, requesting a two-week extension to comply with his awards. Mr. Kleinman responded by email on August 15, 2022, directing that, unless on consent, Eli could seek such an extension by bringing a motion on notice to Abigail. Abigail did not consent. Eli did not bring a motion to extend the August 15^th, 2022, deadline.

33. On September 7, 2022, Mr. Kleinman sought a status report from both parties, after which he made an award on September 8, 2022. The September 8, 2022 award confirmed that Eli remained in default of his previous awards and, accordingly, under paragraph 32(d) of his May 19, 2022, award, Eli’s pleadings and evidence filed in the arbitration were struck out and Abigail was to seek directions in furtherance of an uncontested hearing. Pursuant to r.1(8.4) of the FLRs, Eli was not entitled to any further notice of steps in the case, other than receiving service of the order. Mr. Kleinman granted Eli one final opportunity to participate constructively, compliantly and in a child-focused manner and ordered that if Eli remained in default of his previous awards by September 23, 2022, then Abigail may seek to have her claims adjudicated on an uncontested basis without further notice to Eli. Abigail was directed to file her evidence by way of affidavit in either form 14A or Form 23C, along with Forms 35.1 and 35.1A by October 21, 2022.

34. Abigail filed her materials for the uncontested motion on September 23, 2022, pursuant to the Arbitral Award, dated September 7, 2022.

35. On October 11, 2022, Mr. Kleinman made a Final Arbitral Award, referred to as the Kleinman Award in this Endorsement. Eli was given a copy of the Final Award on October 11, 2022, as per the terms of the Kleinman Arbitration Award.

36. Mr. Kleinman made several findings of fact in his October 11, 2022 Final Arbitral Award, based on the materials on the record before him. Despite Eli’s oral submissions that Mr. Kleinman did not consider the law as it applies to parenting namely, that he did not consider the best interests of the children, paragraph 37 of the Kleinman Award clearly states,

    “Any award with respect to parenting (responsibilities, time, etc.) must be made with regard only to the best interests of a child, considering a child’s physical, emotional and psychological safety, security and well-being: Children’s Law Reform Act, s.24.

37. Note that Eli referred to the Divorce Act throughout his materials filed in support of this motion but since the parties were never married civilly, the Divorce Act is not applicable in this case.

38. Counsel for Abigail subsequently sent Eli a copy of the materials she had filed in support of her uncontested motion before Mr. Kleinman.

39. The Kleinman Award addresses decision-making, parenting time for Eli, communication between the parties with respect to parenting, imputation of income to both parties, child support (table and s.7 expenses); spousal support and costs.

40. Eli did not take steps to appeal the Kleinman Arbitration Award despite his oral submissions that he did do so. Pursuant to s.47 of the Arbitration Act, 1991, an appeal of an Award or an Application to set aside an Award shall be commenced within 30 days after the appellant or applicant receives the award, correction, explanation, change or statement of reasons on which the Appeal or Application is based. Both parties were provided with a copy of the Kleinman Arbitration Award on October 11, 2022. The time to Appeal the Kleinman Arbitration Award or to bring an application to set it aside has elapsed.

41. During the motion, Eli made oral submissions that he went to this Court to appeal the Kleinman Arbitration Award and was told that he must appeal to Mr. Kleinman. There is no evidence on the record to verify that Eli was told this by anyone at the Court. In any event, if Eli wanted to appeal the Kleinman Award, the correct appeal route would be to this court. He did not do so. If Eli wanted Mr. Kleinman to clarify or correct his Award, then he could have approached Mr. Kleinman to do so. He did not do so.

42. Eli attached as Exhibit “C” to his Affidavit, sworn on April 28, 2022, an email he sent to Mr. Kleinman as evidence that he tried to appeal the Kleinman Award. Eli argued that Mr. Kleinman refused to respond to his emails which is why his appeal did not get heard. The email attached to Eli’s affidavit is dated October 3, 2022, 8 days prior to the date on which Mr. Kleinman released the Kleinman Award. Accordingly, Eli’s oral submissions that he tried to appeal the Kleinman Arbitration Award to Mr. Kleinman directly and that Mr. Kleinman refused to open his emails or respond to him is clearly not true.

43. The Kleinman Award has not been set aside or declared invalid by any court.

44. The Kleinman Award complies with the Arbitration Act, 1991 and there is nothing on the record before me to suggest otherwise.

45. Accordingly, I find that the mandatory elements of s.59.6(1) of the FLA are met and the Kleinman Arbitration Award is capable of being enforced.

Did Abigail bring the Motion to Enforce the Kleinman Arbitration Award Properly?

46. Rule 32.1(2) of the Family Law Rules, O. Reg. 114/99 (“FLRs”) provides that, if there is already a family law case to which these rules apply between the parties to the family arbitration agreement in the Superior Court of Justice or the Family Court of the Superior Court of Justice, the party entitled to enforcement shall make a Motion in that case rather than a request under this rule, and subrule 14 (24) applies in respect of the Motion. Accordingly, Abigail brought this motion to incorporate the Kleinman Award into an order of this court under this application which was correct pursuant to the FLRs.
47. Further, Abigail has followed the proper procedure in providing Eli with notice of her Motion to enforce the Kleinman Arbitration Award. Pursuant to section 59.8(3) of the FLA, the Application or Motion shall be made on notice to the person against whom enforcement is sought and shall be supported by, a. The original Award or a certified copy. b. A copy of the family Arbitration Agreement; and c. Copies of the Certificates of Independent Legal Advice.
48. I find, therefore, that Abigail followed the correct procedure and followed the FLRs and the FLA in bringing a 14B Motion to incorporate and enforce the terms of the Kleinman Arbitration Award into a Court Order, as Rule32.1(8)of the FLR³⁸ contemplates that, unless the Court orders otherwise under subrule(10), the request shall be dealt with on the basis of written documents without the parties or their lawyers needing to come to Court. Generally, incorporating the terms of an arbitration award is a procedural and uncomplicated matter than be brought in writing, pursuant to Rule 14(10) of the FLR.

Can the Court Incorporate the terms of the Kleinman Arbitration Award into a Court Order?

49. Section 59.8(4) of the FLA provides that, if the family Arbitration Award satisfies the conditions set out in subsection 59.6 (1), the Court shall make an Order in the same terms as the Award, unless, a. The period for commencing an Appeal or an Application to set the award aside has not yet elapsed. b. There is a pending Appeal, Application to set the award aside or Application for a declaration of invalidity; or c. The Award has been set aside or the arbitration is the subject of a declaration of invalidity. (Emphasis added)

50. Section 59.8(4) of the FLA is a mandatory section. This section has been found to be an enforcement proceeding designed to turn a family Arbitration Award into a Court Order with the enforceability that goes with such an Order: Thibodeau v. Thibodeau, 2011 ONCA 100 (Ont. C.A.). At para 72, the Court noted:

    “Section 59.8 is essentially an enforcement proceeding designed to turn a family Arbitration Award into a Court Order with the enforceability that goes with such an Order. Respectfully, it is not an opportunity for the Superior Court Judge hearing the application to tweak or alter the Arbitration Award to conform to what the Judge may think the Arbitrator should have done. Nor is it an opportunity to “correct” the award retroactively, the better to protect a payee spouse in the event of a subsequently occurring bankruptcy at the expense of other creditors.”

Costs

51. Abigail seeks costs of a 14B motion she brought before this motion.
52. On December 5, 2022, Abigail served and filed a 14B motion seeking an order incorporating paragraph 60 of the Kleinman Award. On December 7, 2022, Eli served a 14B motion and supporting affidavit opposing Abigail’s 14B motion seeking other relief unrelated to Abigail’s motion to incorporate the award into an Order for enforcement purposes.
53. As a result of the competing 14B motions, Kristjanson, J. made on Order dated December 21, 2022, in which she set that normally to incorporate an arbitral award into a final court order is a simply procedural order but given that it was opposed by Eli, she directed the parties to deal with the matter by way of an oral motion with Facta.
54. On March 31, 2022, Abigail served a Notice of Motion seeking the same relief set out in her previous 14B motion, dated December 5, 2022. The return of the motion was April 20, 2023, which I then adjourned to today.
55. I find that it was proper procedure for Abigail to have brought this motion initially as a 14B motion. I also find that she is, therefore, entitled to the costs associated with the 14B motions.
56. Abigail also seeks costs of this motion. A Bill of Costs was uploaded onto Caselines showing that the total fees incurred on this motion, along with the 14B motion, came to $13,653.79. Eli was asked to give submissions as to costs. He advised the Court that he would like to make submissions as to costs, but he was not able to do so today. As a result, the issue of costs will be decided after both parties are given an opportunity to file written costs submissions as set out in my order below.

Order

57. This court makes the following order: a. Paragraph 60 of the Final Award of the Arbitrator, Michael Kleinman, dated October 11, 2022, shall be incorporated into an order of this Court, in accordance with the draft Final Order submitted by the respondent. b. The parties are encouraged to try and resolve the issue of costs. If they are unable to do so, the applicant shall serve and file written costs submissions of no more than 3 pages in writing, not including a Bill of Costs or Offers to Settle, within 10 days of the release of this Endorsement. The respondent shall serve and file responding written costs submissions of no more than 3 pages in writing, not including a Bill of Costs or Offers to Settle within seven days of being served with the applicant’s written costs submissions, The applicant shall serve and file reply to written costs submissions of no more than 1 page, if any within five days of being served with the respondent’s responding costs submissions.

M. Kraft, J.

Date: May 2, 2023 Correction Release Date: July 21, 2023

Correction: In accordance with Rule 25(19) (b) of the Family Law Rules, my Endorsement, dated May 2, 2023, shall be corrected such that in paragraph 57(a) of the Endorsement the word “applicant” shall be replaced with “respondent”.