CITATION : N.M.A. v. J.B.A., 2024 ONSC 1346

Court File and Parties

Court File No.: 725-17 Date: 2024/03/14 Ontario Superior Court of Justice

Between: N.M.A., Applicant – and – J.B.A., Respondent

Counsel: John G. Cox/Alex Ogilvie, for the Applicant Martha McCarthy/Zechariah Martin, for the Respondent

Heard: January 24, 2024

Judgment

The Honourable Madam Justice L. Bale

Overview

[1] This is an appeal of a Final (Arbitration) Award of Mr. A. Mamo (“the Arbitrator”), dated August 28, 2023 wherein the Arbitrator endorsed a change of schools for the subject children J.B. (age 12) and J. (age 11) from Hillfield Strathallan College (“HSC”), a private school, to John T. Tuck Public School (“Tuck”).

[2] The Appellant mother seeks an order setting aside the Final Award and ordering that the subject children return to attend HSC immediately. In the alternative, the Appellant mother seeks that the matter be remitted for a fresh hearing before a new Arbitrator.

[3] The Appellant mother asserts errors on the following grounds:

1. The Arbitrator committed errors of law as follows: a. The Arbitrator failed to give due weight to the children’s views and preferences that they wished to remain at HSC; b. The Arbitrator allowed financial considerations to prevail over the best interests of the children; c. The Arbitrator failed to give sufficient reasons as to why financial considerations and ‘other factors’ took priority over the stability of the children remaining at HSC; d. The Arbitrator erred in taking judicial notice of: i. Return on investments; ii. The difficulties faced by retired athletes in obtaining employment; and iii. The lack of availability of working mothers to care for children.

2. The Arbitrator committed errors of fact as follows: a. The Arbitrator misapprehended the evidence relating to the extent of the Appellant’s involvement with the children’s schooling; and b. The Arbitrator made an error of fact in determining that the children were not doing well academically and/or progressing academically.

3. The Arbitrator committed errors of mixed fact and law as follows: a. The Arbitrator failed to consider and/or failed to give meaningful reasons as to his consideration of or the weight he attributed to the following factors: i. the maintenance of the children’s therapeutic relationship with Dr. Ranger at HSC (with no equivalent replacement at John T. Tuck Public School); ii. the significance of the children’s relationship with their peers at their current school and connection to the Hamilton community, or how those connections would be impacted by a change of school; iii. the significance of J.’s unique needs as they relate to their gender identity; iv. the need for continuity of educational support and stability for J.B., and that the Arbitrator erred in accepting the father’s evidence that equivalent supports were available at Tuck without independent verification; v. the impact that a change of school would have on the children’s relationship with the parents; and vi. the significance of the children’s final report cards. b. The Arbitrator placed undue weight on the significance of the children’s absences from school and/or misapprehended the reason for the absences. The Arbitrator also failed to consider the impact that a change of school would have on the children’s attendance and/or failed to give reasons as to this factor and the relevance and weight attached to this factor; c. The Arbitrator failed to consider progress in the children’s behavioural conduct at HSC and made an error in fact in determining that the children continued to experience difficulties with teachers and peers and/or ignored evidence in relation to a reduction in peer and teacher conflict and/or failed to give meaningful reasons as to why this evidence was not considered and the relevance and weight to be attached to this evidence and how a change of schools would impact this progress; d. The Arbitrator failed to consider the stability of the children’s long-time enrollment at HSC; e. The Arbitrator erred in allowing the financial circumstances of one party, which were unproven by credible evidence, to ‘trump’ legitimate best interests concerns; f. The Arbitrator erred in placing an onus on the Appellant mother to prove that the best interests of the children were best met by their remaining at HSC, rather than placing any onus on the Respondent father to demonstrate that a change of schools was in their best interests; g. The Arbitrator placed undue emphasis on the Appellant mother’s plan for the children’s education and her capacity and commitment to carry out the plan, and failed to consider or give sufficient reasons relating to: i. the Respondent’s plan for the children’s education or his capacity and commitment to carry out the plan; and ii. both parents’ ability to carry out and commit to either proposed education plan; h. The Arbitrator failed to consider that the Appellant mother has a Masters Degree in Education; and i. The Arbitrator considered and placed undue emphasis on the Appellant mother’s personal relationships and personal decisions, which were irrelevant to the issue of the children’ schooling.

4. The Arbitrator failed to ensure procedural fairness to both parties by: a. Accepting the Respondent father’s sworn financial statement in reply, over the objection of the Appellant mother; b. Accepting the Respondent’s sworn financial statement in the absence of three years’ Income Tax Returns and Notices of Assessment, contrary to the Family Law Rules, O. Reg. 114/00, s. 1; c. Failing to adjourn the hearing and direct the parties to file Income Tax Returns and Notices of Assessment; and d. Failing to draw an adverse inference against the father for failing to file his Income Tax Returns and Notices of Assessment, while drawing an adverse inference against the Appellant mother for perceived deficiencies in her financial disclosure.

[4] Finally, the Appellant argues that fresh evidence tendered at the appeal hearing, as per the Endorsement of Justice A. Pazaratz, dated December 13, 2023, necessitates that the decision of the Arbitrator be reversed, or a new hearing ordered, in the best interests of the subject children.

The Facts

Family History

[5] The parties were married in November 2009 and separated in April 2016. They are not divorced.

[6] There are two children of the marriage, namely J.B. (age 12) and J. (age 11). Following separation, the children have generally resided equally with both parents, pursuant to a shared parenting and decision-making model.

[7] J.B. and J. have attended private school at HSC since 2016. The total cost of tuition for both children to attend at HSC is at least $60,000.00 per year.

Litigation History

[8] Following separation the parties negotiated a comprehensive Separation Agreement through lawyer-assisted mediation. The mediator was Mr. Alfred Mamo, Q.C. The parties’ domestic contract was executed on February 19, 2021. The parties reached agreement on all but one issue: where J.B. and J. would go to school. They agreed to arbitrate the remaining issue with Mr. Mamo.

[9] On June 4, 2021, the Arbitrator released his first schooling decision (“Award #1”). Award #1 required the children to continue to attend HSC, subject to a de novo review at the request of either party after April 1, 2023. Pursuant to Award #1, the Respondent father was required to pay 60% and the Appellant mother was required to pay 40% of the cost of the children’s private school education at HSC. With respect to the justification for potential review in 2023, the Arbitrator specified:

Given the number of current uncertainties in the future incomes and means of each parent, and the changing educational and psychological needs of the children, either party may trigger a de novo review of this award after April 1, 2023, to determine which school the children should attend at the commencement of the next school year, taking into consideration the provision of s. 7 of the Child Support Guidelines.

[10] In April 2023, the Respondent father requested a de novo review of the children’s schooling by way of Notice of Motion dated June 12, 2023. He sought an award that the children attend John T. Tuck Public School, located in Burlington, Ontario, commencing in September 2023.

[11] The Appellant mother opposed the father’s request, and pursuant to her Notice of Motion dated June 21, 2023 she sought:

1. Relief relating to the manner in which the views and preferences of the children would be brought before the court; [1]
2. That the children continue to attend at HSC until completion of their secondary school education; and
3. That the parties share in the cost of the children’s attendance at HSC on an equal (50%) basis.

[12] The parties each relied upon at least two affidavits at the hearing. Thousands of pages of supporting documents were filed. Oral argument was initially heard (virtually) on July 12, 2023.

[13] The Arbitrator released an interim award “Re: Determining the Views and Preferences of the Children in Proceedings Relating to What School They Should be Attending in September 2023” on July 12, 2023. As a result of this decision, Dr. Rachel Birbaum was retained by the parties and a report dated August 5, 2023, entitled “Views of the Child Report – non-evaluative report” was submitted into evidence.

[14] The Arbitration hearing resumed and was completed on August 9, 2023.

[15] On August 30, 2023, the Arbitrator released his second schooling decision (the “Award”). [2] The Award required the change of the children’s school to Tuck commencing in September 2023.

[16] In September 2023, the Appellant mother appealed the Award to this court. She brought a motion to stay the Award, which was heard by Justice Walters on September 15, 2023. The Appellant mother’s stay motion was dismissed by Justice Walters on September 26, 2023.

[17] In December 2023, the Appellant mother brought a motion seeking leave to file fresh or new evidence. On December 13, 2023, Justice Pazaratz granted leave for the filing of the following fresh (or new) evidence:

1. A report by the children’s therapist, Dr. D. Ruskin; [3]
2. An updated Voice of the Child Report, prepared by Dr. R. Birnbaum;
3. Child protection records (Halton Children’s Aid Society);
4. Police records (Halton Police Service); and
5. Children’s report cards (John T. Tuck Elementary School).

[18] The appeal was argued on January 24, 2024.

The Law and Application

Generally

[19] Family arbitrations are governed by the Arbitration Act, 1991, S.O. 1991, c. 17, and the Family Law Act, R.S.O. 1990, c. F.3. In a family arbitration, the Arbitrator must apply the substantive law of Ontario. Where the Arbitration Act and Family Law Act conflict, the provisions of the Family Law Act prevail.

[20] In the context of family court appeals it is well established that:

1. Family law legislation gives decision-makers authority to decide cases on certain objectives, values, factors and criteria. This type of analysis involves the exercise of considerable discretion. In such cases appellate courts must act with restraint and may only intervene where there has been a material error, a serious misapprehension of the evidence, or an error in law: Hickey v. Hickey, [1999] 2 S.C.R. 518, at paras. 10-12.
2. If there is an indication that the trial judge did not consider relevant factors or evidence, this might indicate that he did not properly weigh all the evidence. However, an omission is only a material error “if it gives rise to the reasoned belief that the trial judge must have forgotten, ignored or misconceived the evidence in a way that affected his conclusion”: Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014, at para. 15.
3. A decision-maker is not obligated to discuss every piece of evidence in detail or at all, when explaining his or her reasons. At times, a decision-maker might appear to stress one factor over another and, in fact, it may be said that this is inevitable in parenting cases, which are heavily dependant on the particular factual circumstances at issue. This situation does not “open the door to a redetermination of the facts” by an appellate court: Van de Perre, at para. 10.
4. The evidence that lays the foundation for best interests considerations must first undergo a discretionary determination by the decision-maker as to admissibility, credibility, reliability, and weight – a ‘layering’ exercise of judicial discretion: B.J.T. v. J.D., 2022 SCC 24, 469 D.L.R. (4th) 193, at para. 55. As such, a trial judge is in the best position to assess evidence pertaining to the best interests of children: Droit de la famille – 1150, [1993] 4 S.C.R. 141 (S.C.C.).
5. The scope of appellate review in family law matters, including those involving parenting, is intentionally narrow. Finality is particularly important in parenting cases, and reinforces the need for appellate deference to trial judges: Van de Perre, at paras. 11-13, R.F. v. J.W., 2021 ONCA 528 (C.A.), at paras. 20-21.

[21] In the specific context of family arbitration appeals, the Ontario Court of Appeal has emphasized that:

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 children. The decision of an Arbitrator, particularly in child-related matters, is therefore entitled to significant deference by the courts: Petersoo v. Petersoo, 2019 ONCA 624, 29 R.F.L. (8th) 309, at para. 35, Patton-Casse v. Casse, 2012 ONCA 709, 29 R.F.O. (7th) 210, at paras. 9-11.

[22] Appeals of arbitral awards are governed by s. 45 of the Arbitration Act. In this case, the appeal of the arbitration award lies to the Family Court. The applicable standard of review on an appeal of an arbitration award and a decision of a lower court are one and the same: see: Gray v. Brusby, Palmer v. Palmer, 2010 ONSC 1565, 87 R.F.L. (6th) 115, Reati v. Racz, 2016 ONSC 1967, Rosenberg v. Yanofsky, [2019] O.J. No. 6057, 2019 ONSC 6886.

Alleged Errors of Law

[23] The standard of review on a question of law is correctness. If an error in law is found, it is open to an appellate court to replace the opinion of the decision-maker with its own: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 8. For the reasons that follow, I do not accept the Appellant mother’s argument that the Arbitrator made any errors in law.

A. The Arbitrator did not fail to give due weight to the children’s views and preferences

[24] Article 12 of the Convention on the Rights of the Child requires state parties to ensure that children who are capable of forming their own views must be given the right to express those views in matters which affect them and that those views must be given due weight in accordance with their age and maturity: Convention on the Rights of the Child, 20 November 1989, UNTS, vol. 1577, Article 12 (entered into force 2 September 1990). The views and preferences of children are an enumerated best interests consideration under section 24(3) (e) of the Children’s Law Reform Act, R.S.O., 1990, c. C.12.

[25] The degree to which the court will follow the wishes of the child will depend upon the age and level of maturity of the child and will be subject to the judge’s discretion as they seek to determine the child’s best interests: R. G. v. K.G., 2017 ONCA 108, 136 O.R. (3d) 689, at para. 67. However, the wishes of children and the best interests of children are not always synonymous, and there is no presumption in favour of following those wishes.

[26] Had the Arbitrator failed to mention, or consider the views and preferences of J.B. and J. in his analysis at all, I agree that this may constitute an error of law. However, on July 12, 2023, the Arbitrator released an endorsement wherein he highlighted the importance of considering children’s voices in family proceedings and prescribed the retainer of a clinician to obtain the views and preferences of J.B. and J. The Arbitrator correctly summarized the applicable law. He explained that ‘what was missing’ in the material before him was “how the children are experiencing their life and how that experience might impact on the particular issue in question, that being which school they should be attending this fall”. It should be noted that the Arbitrator opined that ‘where do the children want to go to school?’ would be too restrictive an interpretation, and that he would be engaging in a more holistic analysis of their views and preferences which included how J.B. and J. were experiencing their life, generally vis-à-vis their parents, friends, relatives, teachers, etc.

[27] Dr. Birnbaum’s non-evaluative Views of the Child Report was entered into evidence and both parties were given the opportunity to make legal submissions as to its ultimate impact.

[28] The Award reflects that the Arbitrator was alive to the appropriate legal principles relating to the consideration of children’s views. He was aware that it was J.B. and J.’s specific preference to remain at HSC, and considered those views and preferences in his decision. The Arbitrator was under no obligation to prioritize the views of the children regarding school preference over other best interests factors, and was under no obligation to identify the precise degree to which he weighed those views as against the other relevant considerations. J.B. and J.’s views were but one factor in the Arbitrator’s multi-factored decision.

[29] There is no identifiable error in law.

B. The Arbitrator did not “allow financial considerations to prevail” over the best interests of the children

[30] Parenting decisions are contextual and fact driven exercises that involve a high level of judicial discretion. A case-by-case consideration of the unique circumstances of each child is the hallmark of the process. Those factors include the physical, economic, emotional, psychological, intellectual and moral well-being of children: Gordon v. Goertz, [1996] 2 S.C.R. 27 (S.C.C.), at para. 120; B.J.T., at para. 53.

[31] In this case, the Arbitrator had to navigate a number of somewhat competing frameworks:

1. A parenting review hearing is a fresh inquiry into the best interests of children, without any imposed burden of establishing a material change in circumstances; but
2. Status quo schooling arrangements should not be disrupted without good reason: there must be compelling evidence that a change of schools is in the children’s best interests; and
3. An order requiring a party to contribute to private school expense must take into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the parents and past patterns of spending.

[32] It is important to note that the Appellant did not advance an alternative position at the arbitration: that is, that the children should continue to attend at HSC without financial contribution from the Respondent father. By advancement of the dual claim that: (a) the children should continue to attend private school, and (b) that the Respondent father should be obliged to fund a portion of the cost of the private school, the Arbitrator was obliged to consider not simply whether attending HSC was in the children’s best interests, but also the necessity and reasonableness of the expense as required under s. 7 of the Child Support Guidelines (the “Guidelines”). As a result of the competing burdens and considerations, the Arbitrator correctly identified the need to ‘harmonize’ the parenting provisions with the financial aspects of the case.

[33] Section 24(3) (h) of the Children’s Law Reform Act expressly provides for consideration of each parent’s ability and willingness to care for and meet the needs of the child. In the context of a request for children to attend a privately-funded school, it is logical that the parties’ abilities includes consideration of their ability to fund the privately-funded school.

[34] The Arbitrator concluded that neither party had an income level sufficient to sustain enrollment in private school for J.B. and J. without depletion of their capital. This is a significant finding in the context of the annual cost and remaining years of primary and secondary schooling for J.B. and J. I agree with the Arbitrator that the children’s best interests could not be determined in a vacuum without reference to this finding as to the practical constraints of the family. Where a request is made that would require a party to deplete their capital to finance the cost of a s. 7 expense, the necessity and reasonableness of the expense in serving the best interests of children becomes an important feature. To suggest otherwise leaves open the potential for absurd results.

[35] The Appellant’s general argument that financial considerations prevailed over all else appears to be result-based rather than analysis-driven. The court’s attention was not drawn to any particular statement in the Award which would provide support for this broadly-worded assertion. To the contrary, the Arbitrator correctly: (1) highlighted that the primary consideration relating to the choice of school issue was the physical, emotional and psychological safety, security and well-being of the children, and (2) identified that the relief sought by both parents had to be considered holistically, in consideration of the best interests of the children but within the practical and financial confines of family. The Arbitrator identified and applied the correct legal framework.

[36] The Arbitrator engaged in a multi-faceted approach, weighed and considered the relevant best interests factors, and specifically noted that a compartmentalized decision that separated the choice of school from the s. 7 expense considerations would not have made any difference in his conclusion. There is no identifiable error in law.

C. The Arbitrator did not fail to give sufficient reasons as to why financial considerations and other factors took priority over the stability of the children remaining at HSC

[37] The delivery of inadequate reasons which cause or contribute to a deprivation of the meaningful exercise of a party’s right to have the correctness of the trial decision reviewed by an appellate court is an error of law. However, where the reasons demonstrate that the trial judge has considered the important issues in a case, or where the record clearly reveals the trial judge’s reasons, or where the evidence is such that no reasons are necessary, appellate courts should not interfere. Appellate courts considering the sufficiency of reasons should read them as a whole, in the context of the evidence and arguments made at trial, and with an appreciation of the purposes or functions for which they are delivered: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at paras. 40-42.

[38] The Award is a 36-page, 136-paragraph single-spaced decision. Within the written Award, the Arbitrator:

1. Provided detailed overviews of the history of the family and the positions of the parties;
2. Provided an accurate summary of the law relating to: a. The nature of review orders; b. Best interests considerations under the Children’s Law Reform Act, and in particular: i. Consideration of views and preferences of children; ii. Additional considerations relating to educational decisions and ‘choice of school’ issues, including inter alia: 1. Parental capacity and commitment to carry out educational plans; 2. The impact of change of disruption, if any, upon the stability of children; 3. Priority of children’s best interests over parental preference and convenience; c. Section 7 expense considerations under the Guidelines, and in particular educational expenses; d. Judicial treatment of the interplay between best interests terminology contained within both section 24 of the Children’s Law Reform Act, and section 7 of the Guidelines; e. Interrelationship and interpretation issues where statutes and regulations may appear to conflict; and
3. Provided extensive written analysis as to the application of the legal principles to evidence presented at the hearing.

[39] It is not the function of this court to identify and attempt to precisely calculate and understand the specific weight attributed by the Arbitrator to each and every factor considered in determining the best interests of J.B. and J. as it relates to his ultimate conclusion. Rather, I am satisfied that the award, read as a whole and considered in the context of the Arbitrator’s long history with this family, the evidence tendered, and arguments made at the hearing, provides the parties with more than sufficient information to understand why he made the decision he did. The Award also provides this court with sufficient context to conduct effective appellate review. The Arbitrator made no error in law under this heading.

D. The Arbitrator did not take judicial notice of return on investments, the difficulties faced by retired athletes in obtaining employment, or the lack of availability of working mothers to care for children

[40] Judicial notice dispenses with the need for proof of facts that are clearly uncontroversial or beyond reasonable dispute. The threshold for judicial notice is strict. A court may properly take notice of facts that are either: (1) so notorious or generally accepted as not to be the subject of debate among reasonable persons; or (2) capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy: R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863, at para. 48. In some cases, tacit or informal judicial notice may present itself – where the trier of fact draws upon common experience, common sense, or common knowledge to interpret and understand the formal evidence presented at trial: R. v. J.M., 2021 ONCA 150, 154 O.R. (3d) 401, at para. 32.

[41] In this case I do not find that the Arbitrator took formal judicial notice of any facts. Rather, I find that the Arbitrator interpreted and considered the evidence before him, made findings grounded in the evidence, and where appropriate, drew common sense inferences from that evidence. The Arbitrator did not draw conclusions in the absence of specific proof.

[42] Specifically, with respect to the imputed rate of return on investments, the Arbitrator engaged in a thorough review of the Respondent father’s financial circumstances. This review included consideration of past performance of the father’s investments. With this background, the Arbitrator was equipped to draw an inference with respect to future performance expectations. In his analysis, the Arbitrator considered two scenarios wherein he imputed a 6% rate of return on the Respondent father’s (a) present net liquid holdings, and (b) potential net liquid holdings if he sold his home and secured more modest accommodations. In both scenarios, using the 6% rate of return, the Arbitrator found that the Respondent father would be required to deplete his capital to finance the cost of HSC. The Arbitrator did not take judicial notice that a 6% rate of return on investments is a precise and universally-accepted rate of expected investment return. Rather, he estimated a reasonable rate at which a prudent investor might be able to earn at the relevant time, in keeping with the appellate authority to do so: Greenglass v. Greenglass, 2010 ONCA 675, 99 R.F.L. (6th) 271, at para. 60; Halliwell v. Halliwell, 2017 ONCA 349, 138 O.R. (3d) 671, at paras. 138-139. The Arbitrator did not take judicial notice, and there is no flaw in his application of the legal principles articulated within the appellate authority on this topic.

[43] Likewise, the Arbitrator did not take judicial notice that retired athletes have difficulty obtaining employment, obviating the need for evidence on this point. He did not rely upon an observation of retired professional athletes to dispense with the need for the Respondent to lead evidence of his actual reduction in income. Rather, the Arbitrator accepted the father’s specific evidence regarding the impact his age, injury, and past experience as a professional athlete have had on his future employment prospects. The Arbitrator conducted an individualized assessment and accepted the father’s reduced income as reasonable, and not atypical, in the context of a retired professional athlete. This was an observation the Arbitrator was entitled to make on the strength of his logic, experience, and common sense.

[44] There is no support for the Appellant mother’s assertion that the Arbitrator took judicial notice that working mothers are not available to their children. Rather, he was concerned with the holes and inconsistencies in her evidence relating to her after-school parenting plan and finances.

[45] There is no error in law.

Alleged Errors of Fact

[46] The standard of review for findings of fact is that such findings are not to be reversed unless it can be established that the decision-maker made a “palpable and overriding error”: Housen, at para. 10. The same standard of review applies to factual inferences: Housen, at para. 19; H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401, at para. 54.

[47] Palpable and overriding error is a highly deferential standard of review:

“Palpable” means an error that is obvious. Many things can qualify as “palpable”. Examples include obvious illogic in the reasons (such as factual findings that cannot sit together), findings made without any admissible evidence or evidence received in accordance with the doctrine of judicial notice, findings based on improper inferences or logical error, and the failure to make findings due to a complete or near-complete disregard of evidence; and

“Overriding” means an error that affects the outcome of the case. It may be that a particular fact should not have been found because there is no evidence to support it. If this palpably wrong fact is excluded but the outcome stands without it, the error is not “overriding”. The judgment of the first-instance court remains in place: Mahjoub v. Canada (Citizenship and Immigration), 2017 FCA 157, [2017] F.C.J. No. 726, at paras 62-64.

[48] When arguing palpable and overriding error, “it is not enough to pull at leaves and branches and leave the tree standing. The entire tree must fall”: Benhaim v. St-Germain, 2016 SCC 48, [2016] 2 S.C.R. 352 citing Canada v. South Yukon Forest Corporation, 2012 FCA 165, [2012] F.C.J. No. 669, at para. 46.

[49] The Appellant asserts that the Arbitrator:

a. Misapprehended the evidence relating to the extent of the Appellant’s involvement with the children’s schooling; and b. Made an error of fact in determining that the children were not doing well academically and/or progressing academically.

[50] I do not agree. The Arbitrator made no obvious factual errors. Further, even if the Arbitrator had made specific findings that the Appellant mother was actively involved in the children’s academics and the children had made vast improvement in their conduct and grades in the final months of their schooling in 2023, I am not satisfied that these findings would have affected the outcome of the case. There is no palpable and overriding error.

Alleged Errors of Mixed Fact and Law

[51] Questions of mixed fact and law involve applying a legal standard to a set of facts. The standard of review for questions of mixed fact and law is palpable and overriding error unless there is an extricable question of law, in which case the standard of review on that extricable question is correctness: Housen, at paras. 26-27.

[52] A failure to mention specific evidence, or a trier of fact’s preference for the evidence of some witnesses over others cannot, on their own, form the basis of proof that he or she ‘forgot, ignored or misconceived the evidence’: Housen, at para. 46. First instance triers of fact benefit from a rebuttable presumption that they considered and assessed all of the material placed before them. As highlighted by Justice Stratas, judgment writing is an ‘imprecise art”:

Immersed from day-to-day and week-to-week in a long and complex trial such as this, trial judges occupy a privileged and unique position. Armed with the tools of logic and reason, they study and observe all of the witnesses and the exhibits. Over time, factual assessments develop, evolve, and ultimately solidify into a factual narrative, full of complex interconnections, nuances and flavour.

When it comes time to draft reasons in a complex case, trial judges are not trying to draft an encyclopedia memorializing every last morsel of factual minutiae, nor can they. They distill and synthesize masses of information, separating the wheat from the chaff and, in the end, expressing only the most important factual findings and justifications for them.

Sometimes appellants attack as palpable and overriding error the non-mention or scanty mention of matters they consider to be important. In assessing this, care must be taken to distinguish true palpable and overriding error on the one hand, from the legitimate by-product of distillation and synthesis or innocent inadequacies of expression on the other: Housen at para. 69, citing Canada v. South Yukon Forest Corporation, at paras. 49-51.

[53] As the Supreme Court instructed in R. v. G.F., 2021 SCC 20, [2001] 1 S.C.R. 81, at para. 69, appellate courts must not “finely parse” the trial judge’s reasons in a search for error, but rather must assess whether the reasons, read in context and as a whole, in light of the live issues at trial, explain what the trial judge decided and why they decided that way in a manner that permits effective appellate review: see also R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 16-17, 54-55.

[54] The Appellant raises concerns regarding the weighting, consideration and reasons given by the Arbitrator on the following topics. I do not share her concerns:

1. Availability of On-Site School Therapist: The Arbitrator was aware of the children’s past relationship with Dr. Ranger, on-site therapist at HSC. The Arbitrator did not rely upon any representation that a similar on-site therapist would be available at Tuck. He was, however, aware that the children continue to have an off-site therapist, Dr. Ruskin, at their disposal and provided some direction as to the involvement of Dr. Ruskin in assisting the children with the transition to a new school.
2. Friendships and Social Networks: The Arbitrator was alive to and specifically referenced the children’s desire to remain in school at HSC with their friends, and the initial discomfort that they might face in attending a new school. He was aware of the long-time enrollment of the children at HSC. However, the Arbitrator also made a finding that these children should have no difficulty integrating into a new school, in a neighbourhood where they already had stability and connections through their father. This finding is entitled to deference.
3. Specific Identity and Relationship Issues: The Arbitrator did not specifically mention gender identity issues, or any impact a change of schools might have on the children’s relationships with either parent. It was open to the Arbitrator to find these circumstances not to be probative to the primary issue of education. No change in the parenting schedule or children’s medical care providers was being contemplated. The Arbitrator’s decision not to highlight these features in his analysis does not suggest to this court that he forgot or ignored a matter of significance.
4. Mother’s Educational Credentials: The Arbitrator specifically mentioned the Appellant’s Master of Science and Education Degree within his Award. However, the Arbitrator’s focus on the turmoil and instability in the mother’s life, including a turbulent relationship with an HSC staff member, and the impact of these circumstances on the children’s education and learning, was deemed more relevant to the analysis than her credentials. His balancing of these circumstances in considering the mother’s capacity to carry out her proposed education plan is entitled to deference.
5. Children’s Progress and Conduct at HSC: The Arbitrator considered the children’s report cards. His concerns regarding the children’s past absenteeism from school and behavioural issues were warranted. The Arbitrator commented upon the children’s “mixed” academic success, and found greater room for improvement than accomplishments. He was entitled to rely upon these observations in his assessment of the children’s stability and the parents’ respective abilities to implement their proposed educational plans for the children. I do not accept that the Arbitrator misapprehended the evidence related to the cause of the children’s absenteeism from school. He made findings which were open to him to make on the record before him. Likewise, the Arbitrator was entitled to weigh the specific comments of the Vice-Principle of Student Success regarding attitude at school against the general comments within J.B.’s report card as he saw fit.
6. Unbalanced Scrutiny of Educational Plans: I do not accept that the Arbitrator placed undue emphasis on the deficiencies in the mother’s plan, or failed to equally scrutinize the father’s plan of education. The Arbitrator was justified in his concerns relating to the mother’s unstable and volatile relationship with a teacher at HSC; and the spillover of their conflict, involving legal authorities, onto school property. The Appellant’s conduct and decisions had a disruptive effect on J.B. and J.’s learning environment and warranted special scrutiny.

[55] I do not find any support for the argument that the Arbitrator forgot, ignored or misconceived any evidence, or placed undue weight or significance on any particular piece of evidence presented. He was concerned by the instability of the mother and her capacity and commitment to carrying out her proposed educational plan. The Arbitrator made findings of fact which were available to him on the evidence and applied those facts to the appropriate legal framework. It is not open to this court to second-guess the weight the Arbitrator assigned to each individual evidentiary finding. The discretion applied by the Arbitrator as to the balancing of all factors is entitled to deference.

[56] A review of the Award as a whole reflects that the Arbitrator was aware of and considered all of the factual and legal issues raised by the Appellant on this appeal. The Appellant simply asks this court to reconsider the weight that the Arbitrator assigned to the various factors and considerations argued at the hearing, and come to the opposite result. That is not the function of this court. I cannot accept that the Arbitrator made any errors of mixed fact and law.

Alleged Procedural Fairness

[57] The standard of review on allegations of breach of procedural fairness is correctness: Mission Institution v. Khela, 2014 SCC 24, [2014] 1 S.C.R. 502, at para. 74.

[58] An Arbitrator may determine the procedure to be followed in an arbitration, in accordance with the Arbitration Act. Broad discretion is granted to the Arbitrator with respect to the time, date, place and mode of hearing; the setting of timelines; production of records; amending or supplementing materials; format of presentation of evidence and submissions; etc.: Arbitration Act, ss. 20-25. Statutory limits upon the Arbitrator’s procedural discretion include that:

a. Parties to a family arbitration are to be treated equally and fairly: s. 19(1); b. Each party must be given an opportunity to present their case and to respond to the other party’s case: s. 19(2); c. A hearing must be held if a party requests it: s. 26(1); d. All parties are entitled to sufficient notice of hearings and meetings, and must be given opportunity to inspect evidence: s. 26(2); e. Communications with the Arbitrator must include all parties; and f. The Arbitrator must communicate to the parties any expert reports or other documents upon which they may rely in making a decision: s. 26(4).

[59] Under s. 46(1)(6) of the Arbitration Act, the Family Court may set aside an award if the Appellant was not treated equally and fairly, was not given an opportunity to present a case or to respond to another party’s case, or was not given proper notice of the arbitration or of the appointment of an Arbitrator.

[60] The essence of arbitration is that the parties decide on the best procedure for their family. Although the family law of Ontario must be applied, the procedures on an arbitration are not meant to mirror those of the court: Petersoo, at para. 36. It is evident that a family arbitration does not require the process to adhere to the strict requirements of the Family Law Rules, or the use of family court forms. Flexibility of process is required to permit the streamlined and individual goals of each family.

[61] I do not accept that either party was denied procedural fairness in the circumstances of this case. Both parties were treated fairly, and were given equal opportunity to present their case and to respond to the case of the other.

[62] In particular, I find that:

a. The father was the moving party. His request was for a change of schools only. He provided substantial information within his Affidavit materials as to why he believed the parties no longer had the financial ability to support the children’s continued enrollment in private school. The issue of s. 7 expenses was not technically triggered, except in response to the mother’s cross-motion. He did not split his case, as the Appellant seems to suggest. Even if this case had proceeded in court rather than in an arbitral forum, the father would not initially have been obligated to file a sworn Financial Statement. It was not improper for the Respondent father to file a sworn Financial Statement, as requested by the Appellant mother, in his Responding/Reply Affidavit. The mother filed sur reply materials which could have further countered the materials contained therein. She did not file a Financial Statement of her own. b. The Arbitrator accepted the father’s detailed sworn (Affidavit) evidence with respect to his financial circumstances. He was entitled to do so on the record before him, in the absence of Income Tax Returns and Notices of Assessment. Had sworn Financial Statements with Income Tax Returns and Notices of Assessment been integral to the procedural fairness of this hearing, one would expect that the Appellant mother would have, herself, filed a Financial Statement with these attachments. She did not. It is counterintuitive to accept the argument that the hearing was unfair to the Appellant mother or that the Arbitrator should have drawn an adverse inference against the Respondent father in these circumstances. The Arbitrator’s concerns regarding the large deficiencies in the mother’s materials relating to her financial circumstances were justified on the record before him. c. The parties filed thousands of pages of Affidavit materials and supporting documents for the Arbitration. The issue of the children’s September 2023 school enrollment was extremely time sensitive. It was neither practical nor in the best interests of the children to further adjourn the hearing to permit the mother to file a sworn Financial Statement in the circumstances.

[63] There was no denial of natural justice, as alleged. The hearing followed the requirements of the Arbitration Act, and underlying regulations. Both parties had full and proper opportunity to participate. Both parties were fully aware of the case they had to meet.

Fresh Evidence on Appeal

[64] On December 13, 2023, Justice Pazaratz released an endorsement in this case wherein he permitted the parties to present the following fresh or new evidence at the hearing of this appeal:

1. On consent: a. Halton Children’s Aid Society records; b. Halton Regional Police Service records; and c. Children’s Report Cards (re: Tuck) dated November 13, 2023;
2. Not on consent: a. Evidence of Dr. Danielle Ruskin; [4] and b. An updated Voice of the Child Report prepared by Dr. Birnbaum.

[65] Justice Pazaratz conducted an extensive review of the law relating to fresh or new evidence in his endorsement. I rely upon his helpful articulation of the law relating to fresh evidence on appeals. It need not be reproduced.

A. Halton Regional Police Service Records

[66] On September 6, 2023, Halton police were called in response to a verbal altercation which took place between the parties on school grounds (Tuck). No charges were laid. The case was referred to Halton CAS. The involvement of police in domestic conflict is not a new occurrence for this family.

B. Halton Children’s Aid Society Records

[67] Halton CAS interviewed the children as a result of the conflict which took place at Tuck on September 6, 2023, arising out of a difference of opinion relating to the commencement of the regular parenting schedule. The children observed the conflict. Both children reported positive and close relationships with each parent, and feeling safe in their care. Moderate risk of harm arising from parental conflict was identified. The worker noted that J. was no longer experiencing gender identity issues. The file was closed.

C. Children’s Report Cards

[68] The child J.’s first report card from Tuck reported “good” learning skills and work habits, and that he was “progressing well” in all subjects. J.B.’s report card was similar, with additional commentary relating to his kindness, etc. in the classroom. No issues with lateness or absenteeism were noted.

D. Updated Voice of the Child Report

[69] An updated non-valuative Views of the Child Report was prepared by Dr. Birnbaum in accordance with the endorsement of Justice Pazaratz. In general, the report reflects the following themes:

1. The children miss their old school, classes, and friends at HSC. They continue to prefer HSC to Tuck.
2. The children have both made new friends at Tuck.
3. The children would like the opportunity to continue to see Dr. Ruskin.
4. Things are going well at both of the parties’ homes and they like the established parenting schedule.
5. Parental conflict has continued. They do not like it when their parents fight.

[70] Overall, none of the fresh or new evidence tendered at the Appeal hearing has significant bearing upon a decisive issue on this appeal. While all of the new information submitted on this appeal is credible, reasonably capable of belief, and current, none of it is overly surprising or impactful. It is extremely unlikely that any of this new information, if available to the Arbitrator, would have caused him to balance the best interests of J.B. or J. differently. None of the new information is so compelling that it would cause this court to intervene and disturb the decision of the Arbitrator.

Conclusion

[71] This arbitrator has a high level of experience in family law and alternative dispute resolution. The parties repeatedly engaged him to assist with resolving their conflict over a span of approximately five years. The Arbitrator developed a vast and intimate knowledge of the circumstances of the parties and the children. He reviewed thousands of pages of materials including psychoeducational reports; independent learning plans; report cards; attendance records; behavioural and academic agreements, and commentary from school officials; communications with teachers and counsellors; and information relating to HSC and Tuck generally, etc. The Arbitrator was in the best position to decide this case.

[72] The Arbitrator was required to consider all of the relevant evidence. He was not required to recite every alleged fact nor rule upon every argument that did not advance the analysis. He was entitled to highlight certain aspects of the case over others. The Arbitrator’s reasoning is entitled to deference. This court is not entitled to overturn a parenting order simply because it might have made a different decision or balanced factors differently. I am not satisfied that the Arbitrator committed a material error, seriously misapprehended any evidence, or made any errors of law.

[73] J.B. and J. require stability and finality in their learning environment. There is no basis upon which this court should intervene. The Appellant’s Appeal must be dismissed.

[74] On the basis of the above, there shall be an Order to go on the following terms:

1. The Appellant’s Appeal of the Arbitration Award of Alfred Mamo, dated August 28, 2023, is dismissed.
2. If not otherwise resolved between the parties, written submissions as to Costs shall be served and filed as follows: a. By the Respondent, on or before March 27, 2024, limited to three double-spaced pages, hyperlinked to any relevant caselaw, Offers to Settle, and Bill of Costs; b. By the Appellant, on or before April 12, 2024, also limited to three double-spaced pages, hyperlinked to any relevant caselaw, Offers to Settle, and Bill of Costs; and c. If no costs submissions are filed by March 27, 2024, each party shall bear their own costs of this Appeal.

Bale J. Released: March 14, 2024

Notes

[1] Alleged errors initially raised by the Appellant mother with respect to the manner of presentation of children’s evidence were not advanced at the appeal hearing.

[2] The Award is dated August 28, 2023 but was not released to the parties until August 30, 2023. Nothing turns on this.

[3] Fresh evidence from Dr. Rushkin was not ultimately filed.

[4] The fresh evidence was not produced, and the related ground of appeal was not pursued.