Court File and Parties
Superior Court of Justice
Between:
Dustin Connor Weihs – Applicant
and
Christine Courtney Weihs (Howden) – Respondent
Counsel:
- Self-represented (Applicant)
- Jessica Stutt, counsel for the Respondent
Heard: August 5, 2025
Before: The Honourable Sunil S. Mathai
Ruling on Motion for Leave to Appeal and Application to Set Aside Interim Award
Introduction
1The Applicant and the Respondent were married on August 9, 2008, and separated on May 31, 2019. They have three children. On April 19, 2021, the parties executed a mediation/arbitration agreement ("Arbitration Agreement") that appointed Robert Snell ("Arbitrator") as a mediator and arbitrator with respect to: (a) division of property/debt; (b) support; (c) costs; and (d) such other issues as both parties agree to submit. Pursuant to s. 15 of the Arbitration Agreement, a party may appeal an award only on a question of law, with leave, as provided in s. 45(1) of the Arbitration Act, 1991, S.O. 1991, c. 17 ("Act").
2On August 24, 2021, Gunsolus J. ordered the Applicant to pay child support of $2,320 monthly, starting August 1, 2021. The order was made without prejudice to the Respondent's claims for retroactive support and spousal support, and the Applicant's claim that income should be imputed on the Respondent.
3Relying on the Arbitration Agreement, the Respondent commenced a motion for updated ongoing child support, spousal support, and retroactive spousal support from the date of separation on an interim basis. From September, 2024 to May, 2025, the parties provided submissions and evidence to the Arbitrator.
4On June 9, 2025, the Arbitrator released his written reasons on the Respondent's motion ("Interim Award"). In that decision, the Arbitrator made the following award:
On an interim basis, Dustin shall pay Christine child support of $3,396 monthly starting July 1, 2025.
Without prejudice to Christine's claim for retroactive and ongoing spousal support, no spousal support shall be payable at this time.
On an interim basis, and without prejudice to a full final calculation, Dustin will pay Christine $1,000 monthly starting July 1, 2025, toward arrears of child support.
Due to mixed success, no award as to costs.
5The Applicant seeks to set aside the Interim Award based on three alleged errors. The Applicant did not file a formal motion for leave to appeal the Interim Award. Instead, the Applicant filed a Notice of Appeal which makes it clear that the Applicant is seeking leave to appeal the Interim Award. As a result, I treat the Applicant's Notice of Appeal as a motion for leave to appeal the Interim Award pursuant to s. 45(1) of the Act. The Applicant's factum also seeks to set aside the Interim Award on the basis that he was denied procedural fairness. Though no notice of application was commenced, I treat the procedural fairness argument as an application to set aside the Interim Award pursuant to s. 46(1) of the Act.
6For the reasons detailed below, I dismiss the motion for leave to appeal and dismiss the application to set aside the Interim Award.
Governing Principles
7The principal issue before me is whether to grant leave to appeal the Interim Award. The governing legal framework is section 45(1) of the Act. 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.
8The threshold question is whether the proposed appeal concerns a question of law or an extricable question of law. If the threshold is met, then I must go on to consider the elements set out in (a) and (b), above. If the proposed appeal raises questions of fact or mixed fact and law, then the threshold for s. 45(1) will not be satisfied and I need not consider the elements set out in (a) and (b) above.
9Errors of law are different both from errors of fact and errors of mixed fact and law (see Rosenberg v. Minster, 2014 ONSC 845, at para. 37). As stated in A.S. v. J.G., 63 R.F.L. (6th) 379 (Ont. S.C.), 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.
10The 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" (see Director of Investigation and Research v. Southam Inc., [1997] 1 SCR 748, at para. 37).
11The distinction between an error of law and an error of mixed fact and law is jealously guarded. Reviewing courts treat arbitral decisions with considerable deference (see 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" (see Costa v. Costa, 89 O.R. (3d) 670 (Ont. S.C.), at para. 39).
12In Tall Ships Developments Inc. v. Brockville (City), 2022 ONCA 861, at paras. 2-3, Harvison Young J.A. detailed the proper approach to challenges of arbitration awards:
Central to this appeal is the fact that the parties agreed that the decision of the arbitrator was to be final, subject only to appeals on questions of law under s. 45(2) of the Arbitration Act, 1991, S.O. 1991, c. 17 ("Arbitration Act"). The application judge erred by characterizing questions of mixed fact and law as extricable questions of law. Moreover, in characterizing the same arguments as breaches of procedural fairness falling under s. 46 of the Arbitration Act, the application judge effectively bootstrapped the substantive arguments. This court has recently emphasized the narrow basis for setting aside an arbitral award under s. 46 of the Arbitration Act, which is not concerned with the substance of the parties' dispute and is not to be treated as an alternate appeal route: Alectra Utilities Corporation v. Solar Power Network Inc., 2019 ONCA 254, 145 O.R. (3d) 481, at paras. 20-27, 40-44, leave to appeal refused, [2019] S.C.C.A. No. 202; Mensula Bancorp Inc. v. Halton Condominium Corporation No. 137, 2022 ONCA 769, at paras. 5, 40.
In this case, the parties selected an arbitrator to deal with a number of issues arising out of a large project with a number of interrelated contracts and agreements. Moreover, they specifically chose to agree that only questions of law would be subject to appeal. As a matter of policy, and as the Supreme Court of Canada has stated repeatedly, judges exercising their appellate powers under s. 45 of the Arbitration Act should be cautious about extricating questions of law from the interpretation process: Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633, at paras. 54-55; Teal Cedar Products Ltd. v. British Columbia, 2017 SCC 32, [2017] 1 S.C.R. 688, at paras. 45-47. Failing to exercise such caution will result in the very inefficiencies, delays and added expense that choosing an arbitral process seeks to avoid. As I will explain in detail below, I conclude that none of the alleged errors made by the arbitrator could properly be considered extricable errors of law. Nor were there any breaches of procedural fairness that could attract review pursuant to s. 46 of the Arbitration Act.
13The role of the court when it is asked to review an arbitration decision under s. 46(1) of the Act is a narrow one. Section 46 does not create a right of appeal; nor does it invite a review of the correctness or reasonableness of an arbitrator's decision: Mensula Bancorp Inc. v. Halton Condominium Corporation No. 137, 2022 ONCA 769, at para. 5. In Alectra Utilities Corporation v. Solar Power Network, 2019 ONCA 254, Huscroft J.A. cautioned that appeals from private arbitration decisions are neither required nor routine (at para. 20).
14The grounds for setting aside an arbitration award are not concerned with the substance of the parties' dispute, but concern issues such as the requirements of procedural fairness. Where, as here, no right of appeal is provided for in the arbitration agreement, the court does not ask whether the arbitrator's decision is unreasonable or incorrect. The court asks whether the arbitrator acted within the bounds of authority granted by the arbitration agreement pursuant to which they were appointed (see Alectra, at paras. 24–27; Mensula, at para. 5).
Application of Governing Principles
15The Applicant alleges that the Arbitrator committed three errors of law: (1) the Arbitrator failed to consider the Appellant's current income and economic hardship when setting child support; (2) the Arbitrator ignored material evidence relevant to income calculations; and (3) the arbitration procedure was unfair in a manner that affected the outcome. The last allegation relates to s. 46(1) of the Act.
16With respect to the first alleged error, the Applicant argues that the Arbitrator improperly relied on the Appellant's 2024 income to determine support obligations for July 2025 onward and failed to account for the Applicant's present unemployment and the surrounding economic context for post-secondary education (the Applicant was previously employed by a university).
17I find that this allegation is not an error of law. Rather, the Appellant's argument raises a question of fact or mixed fact and law. The Arbitrator explicitly addressed the Applicant's argument that he is currently unemployed and noted that child support is based on current income. The Arbitrator held that the Applicant's current income for 2025 was unknown and that the best evidence is his 2024 income:
Dustin has filed a recent affidavit stating that he resigned his employment position with UNFC because his teaching schedule was revised in such a way as to conflict with his parenting obligations. He has submitted that the calculation of child support should then be based on the fact that he now has no income from the University.
Child support should be based on current income. However, Dustin's income for 2025 is completely unknown. He has an admirable history of seeking and obtaining employment. In these circumstances, the best evidence is his 2024 income.
18In coming to this conclusion, the Arbitrator did not make any error in law – he correctly averted to the fact that child support is based on current income. The Arbitrator was entitled to find that the Applicant's 2025 income was unknown and that the "best evidence" of the Applicant's income was his 2024 income. The Arbitrator's findings on these points are findings of fact and the Applicant has not pointed to any error in principle in arriving at those factual findings.
19With respect to the second alleged error, the Applicant alleges that the Arbitrator failed to consider the Applicant's veteran's pension when he found that the Applicant's 2025 income was "completely unknown." Despite the Applicant's suggestion to the contrary, the Adjudicator's finding that the Applicant's income for 2025 was "completely unknown" is not a reference to the Applicant's veteran's pension being "unknown". The reasons make it clear that the Arbitrator found that the Applicant's total 2025 Guideline income from all sources was currently unknown. In fact, the Arbitrator made explicit reference to the Applicant's veterans' pension when discussing the Applicant's income (see para. 6). Again, this is not an allegation that the Arbitrator made an error in law. The Applicant is actually challenging two of the Arbitrator's factual findings: (1) that the Applicant's total 2025 income was unknown; and (2) that the Applicant's 2024 income was the "best evidence" of his income for the purpose of calculating child support.
20The Applicant also alleges that the Respondent's ODSP income and $1,000 a month rental support was not properly calculated in determining the Respondent's net need or relative financial capacity. The Respondent's rental support was not raised before the Arbitrator.
21The Respondent delivered materials to the Adjudicator and the Applicant that established that ODSP directly paid her landlord $1,000 a month for rent. At the arbitration, the Applicant, who was then represented by counsel, could have argued that rental payment should be considered as part of the Applicant's income even though she was not receiving the money directly.
22I note that the Applicant filed three separate DivorceMate calculations for the Respondent's income. In all three, the Applicant calculated the Respondent's earnings based on her ODSP income received, without reference to the rent payment. In one of the calculations, the Applicant imputed $10,000 to the Respondent's income on the basis that she was entitled to work up to that amount without a deduction in her ODSP income. The Adjudicator ultimately found that he was not able to impute this amount to the Respondent's income.
23In this context, the Applicant's argument does not amount to an allegation that the Arbitrator disregarded material evidence. Before the Arbitrator, the Applicant did not argue that the rental payment was material to the child support calculation. The Arbitrator can hardly be faulted for not directly addressing this issue that was, based on the arguments made by the parties, irrelevant to the child support calculation. As such, I find that this alleged error does not raise a question of law.
24Additionally, there is no merit to the suggestion that the arbitration was devoid of procedural fairness. Both parties were given ample time and opportunity to provide evidence and submissions to the Arbitrator. For example, the Respondent's initial materials were delivered in September 2024, the Applicant's response was delivered in December 2024, the Respondent delivered a reply in February 2025, and the Applicant delivered a sur-reply in May 2025. After the sur-reply, both parties delivered fresh financial statements in May 2025. There is nothing in the record before me that establishes that either the Applicant or his counsel took issue with the arbitration process.
25In his factum, the Applicant alleges various procedural issues with respect to the court's handling of his motion prior to his attendance before me. Specifically, he takes issue with his ability to upload materials for this motion. It is not clear to me whether the Applicant is relying on these allegations to support setting aside the Interim Award or in response to the Respondent's argument that the Applicant had not filed the appropriate motion forms. If the Applicant relies on these allegations to set aside the Interim Award, then his reliance is misplaced. Section 46(1) permits this court to set aside an award when there was some procedural unfairness in the arbitration process. The Applicant's allegations with respect to the processes of this court are not relevant to this inquiry.
Conclusion
26The Arbitrator had evidence before him regarding the parties' current incomes, their 2024 incomes, the Applicant's resignation from his employment, and the parties' respective financial means and needs. Based on this evidence, the Arbitrator made several findings of fact that were directly responsive to the arguments made by the parties. At its core, the Applicant's alleged errors are a challenge to the weight the Arbitrator gave to the evidence. These allegations do not raise a question of law or an extricable question of law. As such, I dismiss the Applicant's motion for leave to appeal as the threshold for engaging s. 45 of the Act has not been met.
27I also dismiss the Applicant's application to set aside the Interim Award for a lack of procedural fairness. On the record before me, there is nothing that establishes a breach of procedural fairness. To the contrary, the Applicant was given a full opportunity to respond to the Respondent's motion which successfully convinced the Arbitrator to rule in his favour on at least two significant issues (i.e. the Arbitrator refused to impute income to the Applicant and the Respondent's motion for spousal support was not successful).
28Finally, with respect to costs, I find that the amount sought by the Respondent is unreasonably high. It is not clear to me why three lawyers, a paralegal, and a law clerk were required to respond to this simple motion. In the circumstances, I grant costs in favour of the Respondent in the amount of $6,000.00 inclusive of H.S.T and disbursements.
The Honourable Justice Sunil S. Mathai
Released: September 17, 2025