Woods v. Sessler, 2024 ONSC 3008

Court File and Parties

COURT FILE NO.: FS-21-23561-0000 DATE: 2024-05-28 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Rebecca Woods, Applicant – and – Ryan Sessler, Respondent

Counsel: Sofia Ashraf, for the Applicant Patricia Gordon, for the Respondent

HEARD: May 23, 2024

Before: Mathen, J.

Overview

[1] The Applicant seeks leave to appeal an arbitral decision issued on April 3, 2024 together with other relief.

[2] The parties never married or cohabitated. Following a brief relationship, they became parents of a child, S., born July 14, 2020. S. will attend junior kindergarten in September of 2024.

[3] The parties entered into Final Minutes of Settlement that were incorporated into a Final Court Order of the Honourable Justice Kristjanson dated November 8, 2023. Under that order, among other things:

a. The parties have joint decision making with respect to S. Any major matter on which they disagree is referred to a dispute resolution mechanism which eventually may reach mediation/arbitration.

b. The Applicant is the primary caregiver for S. who lives with her in Toronto. The Respondent has monthly parenting time with S. in New York City, where he lives.

[4] The current matter arose out of the Applicant’s desire to enroll S. in an Early French Immersion (“EFI”) program. The Respondent objected. Since they did not agree, the matter was ultimately referred to the Arbitrator, Ava Rosen (“the Arbitrator”).

[5] The Arbitrator decided that it was not in S.’s best interests to be enrolled in the EFI program.

[6] The Applicant seeks leave to appeal that decision, and other relief related to S.’s schooling.

[7] In my opinion, the materials submitted for this motion show that the Applicant cares deeply for S. and believes that placement in EFI is important to S.’s development and future.

[8] The principal issue before me, however, is whether to grant leave to appeal the Arbitral award. The governing legal framework is section 45(1) of the Arbitration Act, 1991, S.O. 1991, c. 17 (“Arbitration Act, 1991”). Section 45(1) states:

If the arbitration agreement does not deal with appeals on questions of law, a party may appeal an award to the court on a question of law with leave, which the court shall grant only if it is satisfied that,

(a) the importance to the parties of the matters at stake in the arbitration justifies an appeal; and

(b) determination of the question of law at issue will significantly affect the rights of the parties.

[9] The parties’ arbitration agreement does not deal with appeals on questions of law. Thus, the threshold question is whether the proposed appeal concerns a question or questions of law. Only after this threshold has been satisfied affirmatively may I consider the additional required elements set out in (a) and (b), above.

Parties’ Positions

[10] The Applicant alleges, as errors of law, the following:

a. The Arbitrator misapplied the best interest of the child test. In particular:

i. The Arbitrator focused on the rights, views and preferences of the parents instead of assessing the best interests of the child from the lens of the child;

ii. The Arbitrator failed to give appropriate weight to the Applicant’s evidence, as S.’s primary caregiver, as to why the EFI program was in S.’s best interests; and

iii. The Arbitrator found that without the independent evidence of a professional she could not give any weight to the Applicant’s evidence of why the Early French Immersion program was in S.’s best interest;

b. The Arbitrator failed to make a decision on a school for S. in September 2024; and

c. The Arbitrator failed to take judicial notice of the benefits of French immersion: Applicant’s Factum (“AF”), pp 5, 10, 13, 19, 20.

[11] The Applicant argues for the following additional relief:

a. that S. be immediately placed on the wait list for the EFI program for junior kindergarten at the school in which the Applicant initially sought to enroll her, and enrolled if a space becomes available;

b. that S. be enrolled in an alternative EFI program; and

c. that the Respondent’s consent be dispensed with for either of the above: AF, para 51.

[12] With respect to the relief sought in paragraph 11, above, the Applicant argues that this Court should exercise its parens patriae jurisdiction (AF para 49) so that, notwithstanding the result of this leave appeal, the Applicant may enroll S. in EFI for the upcoming school year: AF para 49.

[13] The Respondent argues that none of the Applicant’s asserted grounds for appeal reflect an error of law. The Respondent argues further that, pursuant to the parties’ Mediation/Arbitration Agreement, the Court lacks jurisdiction to grant the other relief sought by the Applicant. The Respondent adds that this is not a proper case for the exercise of parens patriae jurisdiction: RF para 2.

Decision Below

[14] The arbitral judgment was supported by a 19-page decision (“Decision”).

[15] In reading that decision:

a. The Applicant first made an application to enrol S. in an EFI, in late 2023, without notifying the Respondent. The Applicant claimed that this was done solely to determine where S. might be offered a placement, to facilitate future decision-making: Decision, para 14.

b. The Applicant and Respondent had fraught communications over where S. would attend junior kindergarten: Decision, paras 15-24. The Arbitrator characterizes the Applicant as being more at fault for the communication difficulties on this issue.

c. The Arbitrator considers the Applicant’s reasons for wishing an EFI placement for S. at paras 25-33 of the Decision. The Arbitrator characterizes some of this information as hearsay (Decision, para 28). While the Arbitrator accepts the Applicant’s description of one school (John English) as superior to another (Gauld), the Arbitrator states that this does not answer the question of what is in S.’s best interests (Decision, para 31).

d. The Arbitrator considers the Respondent’s position at paras 34-44. The Arbitrator references a previous arbitral award finding that the Respondent is required to be kept informed of important information regarding S. This portion of the award paints the Applicant as failing to honour that obligation.

e. The Arbitrator describes the Applicant’s Reply at para 45.

f. The Arbitrator’s analysis of the issues appears in paras 46-77 and comprises pages 10-18 of the award. The Arbitrator extensively recounts a number of facts, overviews the relevant legislation and caselaw, applies the latter to the former. The Arbitrator’s reasoning here is further dealt with below.

Legal Principles to be Applied

[16] My analysis is guided by the following principles.

[17] Errors of law are distinct both from errors of fact and from errors of mixed fact and law: Rosenberg v. Minster, 2014 ONSC 845 at para 37.

[18] As stated in A.S. v J.G., 63 RFL (6th) 379 (ON SC) at para 31:

Questions of law are questions about what the correct legal test is; questions of fact are questions about what actually took place between the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests.

[19] The distinction between errors of law and errors of mixed fact and law ensures that appellate courts focus on those cases that have an impact beyond the immediate parties to a dispute. The distinction “reflects the role of courts of appeal in ensuring the consistency of the law, rather than in providing a new forum for parties to continue their private litigation”: Director of Investigation and Research v Southam Inc., [1997] 144 DLR (4th) 1 (SCC) at para 37.

[20] The distinction between an error of law and an error of mixed fact and law is thus jealously guarded.

[21] Reviewing courts treat arbitral decisions with considerable deference: Fogel v Fogel, 2012 ONSC 423 at paras 144-145. A court should not interfere with such a decision unless it is satisfied “that the arbitrator acted on the basis of a wrong principle, disregarded material evidence or misapprehended the evidence”: Costa v Costa, 89 OR (3d) 670 (ON SC) at para 39.

[22] Parens patriae is a remedy founded in necessity. The Court of Appeal has stated that parens patriae is appropriate “to rescue a child in danger; to bridge a legislative gap; or in the absence of a legislative gap, if invoking [it is] the only way to meet the legislation’s paramount objective”: Bhajan v Bhajan, 2010 ONCA 714 at para 27. While a court should always bear in mind a child’s best interests, the mere fact that something may be in a child’s best interests does not render it suitable for parens patriae.

Analysis

Whether the Arbitrator Made Errors of Law

[23] I find that none of the Applicant’s alleged arguments amount to an error of law. At their highest, they amount to errors of mixed fact and law. Some arguments relate to findings or emphases by the Arbitrator that, if incorrect, represent errors of fact. I address these in turn.

[24] The first category of alleged error of law relates to the best interests of the child. In sum, the Applicant claims that the Arbitrator made several legal errors in determining that S.’s enrollment in EFI was not in her best interests.

[25] The Applicant must show that the Arbitrator failed to apply the correct legal test. However, at several places in the Arbitral award, the Arbitrator explicitly referred to the best interests of S. as her primary consideration (Reasons for Arbitral Award dated April 3, 2024 at para 67(d) (Exhibit J to Affidavit of R. Woods sworn May 2, 2024).

[26] It is possible to cite a correct legal test yet deal with it so deficiently that one falls into legal error. The Applicant has not made this argument nor it is such an argument available to the Applicant on the record before the Court.

[27] The Applicant supports the argument in this first category by pointing to numerous cases where a decision-maker found that a child should go to a French-language program. The Respondent reasonably distinguishes many of those cases (RF, para. 28). The Arbitrator also averted to and distinguished some of those cases: Reasons for Arbitral Award dated April 3, 2024 at para 76 (Exhibit J to Affidavit of R. Woods sworn May 2, 2024).

[28] Moreover, as the Applicant acknowledges, all cases such as these are “very fact-driven”: AF para 8(m.) They are not testaments to what is best for all children, but conclusions on what is in the best interest of the child before the particular decision maker: Deschenes v. Medwayosh, 2016 ONCJ 567.

[29] Within this first category, the Applicant makes three more specific claims against the Arbitrator: the lack of a child-focussed lens; the failure to give appropriate weight to the Applicant’s views about the importance of EFI for S.; and the reference to a lack of independent or expert evidence about the benefits of EFI. In my opinion, none of these arguments amount to an error of law.

a. The Supreme Court of Canada has confirmed that the best interests of the child test must be applied from the perspective of a child, not their parents: Gordon v. Goertz, [1996] 2 S.C.R. 27 at para 28. Therefore, the complete absence of what the Applicant calls a child-focussed lens would be an error of law. But the Arbitrator made numerous specific references to S. and to her particular capacities and circumstances: RF paras 29, 33. The degree to which a decision reflects a child-focussed lens is distinct from whether such a lens is there at all. In my view, the latter counts as an error of law while the former does not.

b. Questions of weight are inextricably linked to facts. Other than cases showing complete factual misapprehension (see paragraph 21 of these reasons), the treatment of such questions is not a pure question of law. No such characterization has been demonstrated here. At most, therefore, this claim would represent an error of mixed fact and law.

c. The Applicant cites paragraph 53 of the Arbitrator’s decision which stated:

There is no independent evidence from Rebecca as to why the English program at Gauld or John English would not meet Sloane’s needs and more specifically, why her needs would only be met by attending in EFI program. There is no independent evidence as to why Sloane would not thrive in an English program.

The Applicant describes this quote as improperly requiring her to provide independent evidence such as through an educational consultant: AF para 22. The quote must be taken in context. The Arbitrator is explaining why, notwithstanding the Applicant’s very strong preference regarding an EFI, that preference cannot simply override the Respondent’s objections. The Arbitrator is stating that, absent independent evidence, she is unable to simply accede to the Applicant’s wishes, because those wishes do not automatically equal what is in S.’s best interests. Regardless of whether the Arbitrator’s conclusion was valid, it was clearly rooted in the factual matrix before her. It is not an error of law.

[30] Having regard to the detailed nature of the Arbitral decision, its express invocation of the S.’s best interests, and its careful consideration of the particular facts and the circumstances of the parties, I am not persuaded that the Arbitrator fell into legal error regarding the application of the best interests of the child.

[31] The second category of alleged legal error relates to the Arbitrator’s failure to “make a decision” with respect to S.’s education as the arbitration agreement required her to do. The Applicant does not explain how this was an error of law. I also accept the Respondent’s argument that the question before the Arbitrator was a narrower one of whether the Respondent’s consent should be dispensed with in order to enroll S. in an EFI. It was not a final determination regarding S.’s education in September, 2024: RF para 34. In fact, the Arbitrator has scheduled a further mediation on this issue for June of 2024, and advised that any decision on a subsequent motion before her will be decided by June 28, 2024: Reasons for Arbitral Award dated April 3, 2024 at para 79 (Exhibit J to Affidavit of R. Woods sworn May 2, 2024). While there is a practical reality of whether S. may be able to secure a placement for the coming year, that is a function of the availability of EFI in Toronto. It does not turn the specific findings of the Arbitrator into errors of law.

[32] The Applicant’s third category of legal error relates to the importance of French-language education. She faults the Arbitrator for failing to take judicial notice of the fact that French immersion programs are generally beneficial for children in Canada: AF para 48. I have no reason to doubt this proposition. However, an alleged failure to take notice of such a proposition does not result in an error of law. I was not provided with any binding precedent in Ontario of a Court taking judicial notice of this fact. Even if judicial notice was appropriate, its absence would not constitute an error of law capable of supporting leave to appeal an arbitral award.

[33] I conclude that the Applicant has not established that the Arbitrator made an error or errors of law in her arbitral award. As such, section 45(1) of the Arbitration Act, 1991 is not satisfied. In view of my findings on this point, it is unnecessary to address section 45(1)’s other elements.

Other Relief Sought Including Parens Patriae

[34] I find that the Applicant’s argument for other relief set out in paragraphs 11 and 12 of these reasons is precluded by the terms of the parties’ arbitration agreement.

[35] The Respondent argues that “the parties specifically submitted the issue of ‘the school that [S.] will attend commencing September 2024’ to arbitration” and “explicitly waived their right to litigate issues [including schooling] that have been submitted to arbitration”, The Respondent argues that this Court therefore lacks jurisdiction “to make the orders Rebecca seeks and is prohibited from intervening, pursuant section 6 of the Arbitration Act, 1991.” (RF para 61)

[36] I agree with the Respondent. The type of issue raised in this case (questions concerning a child’s education) is precisely what a mediation/arbitration agreement is meant to address. It would defeat the purpose of such agreements to permit the Applicant to obtain the other relief that she seeks.

[37] The Applicant’s argument regarding parens patriae was made in a single paragraph (AF para 49) and received little time in the oral submissions. Parens patriae is rooted in the Court’s need to act in respect of a child requiring protection. It is invoked in cases involving danger, where there exists a legislative gap, or judicial intervention is required to fulfil a legislative objective. While the issue in this matter is clearly of deep significance to the Applicant, it does not pose such a risk or engage the situations required to invoke the Court’s inherent jurisdiction. I therefore decline to exercise parens patriae in this case.

[38] The motion is dismissed.

[39] Should the parties be unable to agree upon costs, counsel may make written submissions on the issue. These should be confined to 3 pages plus attachments of bills of costs and any offers to settle. The Respondent father shall deliver his submissions within 10 days of this decision. The Applicant mother shall deliver her submissions within 10 days of receiving the father’s submissions. The father shall then have an additional 3 days for reply. These submissions may be sent to my judicial assistant at linda.bunoza@ontario.ca.

C. Mathen J. Released: May 28, 2024