Lefebvre v. Lefebvre, 2026 ONSC 305

CITATION: Lefebvre v. Lefebvre, 2026 ONSC 305

COURT FILE NO.: FC-21-00000096-0000

DATE: 20260116

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ALAIN LEFEBVRE

Applicant/Responding Party

– and –

IRINA LEFEBVRE

Respondent/Moving Party

Christina Roth, Counsel for the Applicant/ Responding Party

Stephanie A. Rudd & Bryan R.G. Smith, counsel for the Respondent/ Moving Party

HEARD: In person July 21, 2025, and written submissions completed by September 12, 2025

DECISION ON LEAVE TO APPEAL ARBITRATION AWARD & COSTS

BHANGU J.:

OVERVIEW

1Irina Lefebvre, the Respondent/Moving Party has brought this Application seeking the court’s leave to appeal the Arbitration Award of the Arbitrator, Mr. Bruce Glass, a retired Justice of the Superior Court of Justice, Central East Region. Specifically, she seeks the following relief:

a. An Order granting leave to appeal the Arbitration Award (“the Award”) of Mr. Bruce Glass (formerly Mr. Justice Bruce Glass of the Superior Court of Justice) dated April 22, 2025.

b. An Order to have the appeal heard on an expedited basis should leave be granted.

c. Costs of this Motion on a “full recovery” basis to be payable by Alain Lefebvre (“the Husband/Responding Party”) to Irina Lefebvre (“the Wife/ Moving Party”).

2This is the Court’s ruling related to whether leave to appeal should be granted.

TEST FOR LEAVE TO APPEAL

3The framework related to appealing a family arbitration award is set out in sections 45 and 46 of the Arbitration Act. The appeal lies to the Superior Court of Justice.

4Section 45 of the Arbitration Act reads: (emphasis added)

45(1) 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.

(2) If the arbitration agreement so provides, a party may appeal an award to the court on a question of law.

(3) If the arbitration agreement so provides, a party may appeal an award to the court on a question of fact or on a question of mixed fact and law.

(4) The court may require the arbitral tribunal to explain any matter.

(5) The court may confirm, vary or set aside the award or may remit the award to the arbitral tribunal with the court’s opinion on the question of law, in the case of an appeal on a question of law, and give directions about the conduct of the arbitration.

5Section 46 of the Arbitration Act sets out ten enumerated grounds upon which the court before whom the appeal is heard may set aside the award at an appeal.

6Guidance on the interpretation of section 45 of the Arbitration Act can be found in the decision of Perrell J. in Aronowicz v Aronowicz, 2007 1885 (ON SC), 84 O.R. (3^rd) 428, where His Honour provided guidance on the test for leave set out in section 45(1)(a) and (b), in the context of civil (non-family) matter. Perell J. held that whether the determination of the issue of law has an impact on the future rights of the parties is a matter to consider when considering the first prerequisite for granting leave to appeal. He held that while a future or ongoing significant impact would be a sufficient factor for deciding this prong of the leave test, future impact is not a necessary factor. Regarding the second prong, he found that the purpose is to eliminate grounds of appeal that are less than decisive to the outcome of the arbitration. Perell J. wrote at paragraph 30: “In other words there may be an error of law, but if it caused no miscarriage of justice or if the error of law would not provide a reason for overturning the award, then leave to appeal should not be granted.

7In the present matter, the wording of the arbitration agreement does not address the issue of possible “appeal” routes. As such, in order for the moving party on this Application to succeed in obtaining leave to appeal, she must satisfy this court that her appeal is restricted to a question of law. Additionally, she must satisfy this court that both factors set out in ss. 45(1)(a) and (b) have application.

8The Supreme Court of Canada has provided helpful guidance on the principles that apply when called upon to determine what is a question of law, fact, or mixed law and fact. As per Canada (Director of Investigations and Research) v. Southam Inc., 1997 385 (SCC), [1997] 1 SCR 748 (SCC), at paragraph 35: “Briefly stated, 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. A simple example will illustrate these concepts. In the law of tort, the question of what “negligence” means is a question of law. The question whether the defendant did this or that is a question of fact. And, once it has been decided that the applicable standard is one of negligence, the question whether the defendant satisfied the appropriate standard of care is a question of mixed law and fact. I recognize, however, that the distinction between law on the one hand and mixed law and fact on the other is difficult. On occasion, what appears to be mixed law and fact turns out to be law, or vice versa.”

9Picking up on the above noted principle, the Supreme Court of Canada, in Gragtmans v. Gragtmans, 2020 ONSC 5322, wrote at paragraph 39: According to the Supreme Court in Sattva Capital Corp. v. Creston Moly Corp., [2014] 2 S.C.R. 633, [2014] S.C.J. No. 53, 2014 SCC 53, at para. 51 (“Sattva”), in its decision in Southam, the Supreme Court emphasized that “the degree of generality (or ‘precedential value’) [is a] key difference between a question of law and a question of mixed fact and law. The more narrow the rule, the less useful will be the intervention of the court of appeal.”

10I will now review the factual background of the litigation history in this matter as a backdrop to assessing whether Irina Lefebvre can succeed in her application for leave to appeal the arbitration award.

FACTUAL BACKGROUND / LITIGATION HISTORY

11The following summary of the litigation history is based on the parties’ application and responding materials, including their facta and affidavits filed on this motion.

12Alain and Irina Lefebvre started living together in June/July/August 2002 and were married on November 9, 2002. There are no children of this relationship.

Separation of the parties:

13According to Irina, the date of separation (valuation) is April 30, 2018.

14According to Alain, that date is December 31, 2018. According to Alain, he moved out of the matrimonial home on February 1, 2019, and lived in a one-bedroom apartment. Irina remained in the matrimonial home until December 2022 when the home was sold. He paid for everything until April 2022 by which time the mortgage was paid in full. He maintains that he provided a more favourable separation date to Irina in the hopes of a resolution, using her separation date. She did not accept the offer to settle so he filed an amended Application, with a December 31, 2018, separation date.

Events Pre-Arbitration:

15A proceeding was commenced by Alain Lefebvre in the Superior Court of Justice, in May 2021. After this date, both parties participated in the family court process, both represented by experienced family law legal counsel.

16Spousal Support: With respect to spousal support, Alain’s evidence is that he offered Irina Spousal Support since the time of the separation. He began paying Spousal Support of $2,125.00 per month as per a Consent Order dated March 2022 which required Alain to pay Irina spousal support of $2,125.00 per month starting March 1, 2022. Irina was required to pay the carrying costs for the matrimonial home from April 1, 2022, onwards.

17Arbitration Agreement/ Selection of Arbitrator:

a. On May 9, 2023, emails were exchanged between the parties through their respective legal counsel. The parties were attempting to select a Mediator-Arbitrator. Alain’s counsel wrote to Irina’s counsel about the screening process before the mediation-arbitration and suggested someone from Hilary Linton’s office do the screening process. Irina’s counsel suggested someone from Ms. Snell’s office. When they could not agree, Irina’s counsel requested that the Arbitrator be discussed with the Court/Case Management Judge, Justice McLeod.

b. On June 14, 2023, both parties reached out to McLeod J., the case management judge who recommended Mr. Glass as the Arbitrator. Both parties agreed to select Mr. Glass as the arbitrator. In an email dated August 25, 2023 from Stefanie Rudd, counsel for Irina Lefebvre to Christine Roth, counsel for Alain Lefebvre, Ms. Rudd writes “Christine, My client is agreeable that the parties shall each be responsible for paying half the cost, and using the funds in trust. My office will call and get some dates for a preliminary counsel call with Justice Glass”. (emphasis added). From this I conclude that it was clear to everyone that Justice Glass was a retired Superior Court Judge and one recommended by Justice McLeod, the case management judge.

c. Irina suggested that the cost of the mediation/arbitration could only be paid from the funds in trust with the parties’ Real Estate Lawyer as long as Bryan Smith (current co-counsel on motion for leave to appeal) was appointed.

d. Alain through counsel suggested that the matter be reverted for trial.

e. Irina then agreed to have the cost paid from the proceeds in trust.

18Trial Management Conferences/Examinations:

a. According to Alain’s affidavit, two Trial Management Conferences occurred because of Irina’s actions. The second Trial Management Conference was needed because after the first one, Irina stated that she was going to schedule Examinations and present an Expert. That did not materialize.

b. After the second Trial Management conference, Examinations were scheduled for June 2023.

19Mediation Process/Agreement:

a. June 14, 2023: At a case conference, Irina and Alain agreed to attend mediation/ arbitration. After this date, the Agreement was prepared and signed. The Agreement contained Independent Legal Advice (“ILA”) Certificates signed by both parties.

b. September 18, 2023: The parties signed the “Mediation-Arbitration Agreement” before Mr. Bruce Glass, as well as the Retainer for Arbitration, and Certificate of Independent Legal Advice”.

i. Both parties confirmed they had received ILA.

ii. The Arbitration Agreement did not address the issue of Appeal via a specific provision.

c. October 23, 2023: The mediation occurred on this date. During the mediation, both Irina and Alain agreed to jointly retain an Expert to address the Notional Tax Issues. This was achieved. Mediation continued January 5, 2024. An updated Financial Statement was sent to Irina for Mediation, followed by her refusal to continue to mediate.

20Trial list – November 2023: After the matter was placed on the trial list, Irina requested mediation/ arbitration in lieu of trial.

21Screening Process: Irina and Alain Lefebvre through their respective legal counsel communicated their positions on the topic of retaining a qualified person to conduct the Screening Process for Power Imbalance. Neither Irina nor Alain elected to proceed with this Screening Process. Irina on this motion is relying on that fact as a ground for obtaining leave to appeal the Arbitrator’s award. Emails reviewed by this court between counsel for both parties demonstrate that Irina would have been aware of the Screening issue and elected not to pursue it.

22Sale of Matrimonial Home:

a. According to Alain’s affidavit, after the sale of the matrimonial home, Irina received 25 percent of the Net Proceeds. The remainder of the funds have been held in Trust. The Real Estate Lawyer has been charging a monthly fee to keep the funds in trust. Alain asserts that he has been at a disadvantage as a result.

b. Irina in her affidavit claims that the matrimonial home increased in value by over $200,000.00 during the time she lived there alone. Alain asserts that the increase in value has nothing to do with any acts on her part and that she provided no evidence to support this assertion of increase.

23Cross examinations:

a. Cross examinations of both parties by the opposing party occurred on September 16, 17, October 1, 9, 2024.

Arbitration Process:

24Facta Exchange/Oral Arguments:

a. Facta were exchanged on January 6, 2025.

b. Oral arguments occurred on February 4, 2025. On this day, for the first time, Irina challenged the relevance of the Joint Expert Report, but not its conclusion.

c. Neither party utilized s. 17 of the Arbitration Act to challenge the Arbitration Agreement.

25The issues before the Arbitrator included making findings of fact related to:

i. A determination of the Separation Date;

ii. Equalization of Net Family Property;

iii. Occupational Rent of the Property; and

iv. Quantum and duration of Spousal Support.

26Both parties were represented by legal counsel during the Arbitration Process up to and including the release of the Arbitration Award, dated April 22, 2025. They have continued to be represented by legal counsel to this present hearing.

27For purposes of the Arbitration, the Arbitrator Mr. Glass had a complete record for both parties, including transcripts of cross examinations, as well as all relevant documents including the jointly retained Expert Report.

28Through legal counsel, oral submissions were made by both parties before the Arbitrator on February 4, 2025.

29The Arbitration Award was rendered on April 22, 2025. The Arbitrator Mr. Glass (formerly Justice Bruce Glass of the Superior Court of Justice, Central East Region) reached the following conclusions. In his reasons, the Applicant is Alain Lefebvre and the Respondent is Irina Lefebvre. The Arbitrator:

a. Found that the Date of Separation to be December 31, 2018.

b. Determined Occupation Rent at $2,000.00 per month, from February 2019 to December 2022. He noted that the amount suggested by the Applicant was reasonable.

c. Determined Equalization of Net Family Property in the amount of $37,360.60. He concluded that the husband’s figures correctly set out the equalization payment of this amount owing to the wife. He noted that he did not agree with the dispute raised by the Respondent related to the report as, in his view, the report was well founded and reasoned.

d. Rejected Irina Lefebvre’s position related to arrears in Spousal Support and held that there was an overpayment of $11,125.08.

e. Determined that Spousal Support was owed to Irina Lefebvre by Alain Lefebvre, in the amount of $2,125.00 per month to continue until February 1, 2027.

f. Determined Equalization payments as follows: After adjustments for Overpayment in Spousal Support and for Occupational Rent, Mr. Lefebvre owed Ms. Lefebvre the sum of $25,255.52 in Equalization.

g. Concluded that 75 percent of the proceeds of the home remain in trust to be disbursed as follows:

i. Fifty percent to be paid to Mr. Lefebvre, subject to the issue of costs; and

ii. Twenty-five percent to be paid to Ms. Lefebvre, subject to the issue of costs.

h. Reduced Alain Lefebvre’s claimed credit to $11,125.08 resulting in a net payment by Irina Lefebvre to Alain Lefebvre of $25,255.52.

POSITION OF THE MOVING PARTY – IRINA LEFEVRE

30I will now set out the basis upon which Irina Lefebvre seeks leave to appeal the arbitration award.

31She submits that the mediation/arbitration agreement that she signed after ILA did not comply with the mandatory requirements of the Family Law Act, the Arbitration Act, nor the applicable Regulations. Her position is that the Agreement did not contain the mandatory standard terms, from s. 2(4) (subparagraphs 1, 2 and 5) of the Regulations and as such the Award is not enforceable and has no legal effect.

a. Subparagraph 1 requires that the arbitration be conducted in accordance with the law of Ontario and the law of Canada as it applies in Ontario OR the law of another Canadian jurisdiction together with the law of Canada that might apply in that other jurisdiction. Irina argues that the Agreement did not require that the arbitration be conducted with the laws of Ontario and the laws of Canada that apply in Ontario.

b. Subparagraph 2 mandates that in the agreement, the arbitrator should choose as between two avenues of appeal. The first under subsection 45(1) of the Arbitration Act. The second as a choice between a question of law, a question of fact, or mixed fact and law. Irina argues that the Agreement did not provide for mandatory appeal rights.

c. Subparagraph 5 requires the arbitrator to confirm that she/he will treat the parties equally and fairly, that she/he has received the appropriate training approved by the Attorney General, that the parties were separately screened for power imbalances and domestic violence and that the results have been considered. Irina argues that the Arbitrator Mr. Glass did not acknowledge that he would treat the parties equally, fairly, nor that he had received the appropriate AG training or that the parties were screened.

32In her factum, counsel for Irina Lefebvre (who was the same counsel all through the litigation history up to and including arbitration) articulates the impact in the following five categories:

Arbitration of the Family Law Issues:

a. Irina Lefebvre submits that despite two mediations, one arbitration, affidavit evidence questioning transcripts, facta, and submissions of counsel, the Arbitrator made no findings of credibility.

Valuation Date:

b. As already noted, Irina and Alain have different valuation (separation) dates. After receiving the evidence and submissions of the parties, in his award, the Arbitrator wrote, “I find that the separation occurred at December 31, 2018. They lived in the same residence and were not at the stage of having nothing to do with each other until the end of the year. Ownership of the home continued. Joint bank accounts existed. Most expenses were paid by the Applicant, but the Respondent paid some accounts. Basically, they were still a couple.”

c. Irina Lefebvre argues that in determining the valuation date, Mr. Glass did not conduct the required analysis and made no finding as to when the parties separated without reasonable prospect of reconciliation – as such there was no finding as to the valuation date. According to her, a finding of the valuation date of April 30, 2018 (Irina’s date) results in a larger monetary award to her in terms of the equalization payment and spousal support as set out in paragraphs 12 and 13 of her factum.

Net Family Property:

d. Irina Lefebvre accepts that it was appropriate for the arbitrator to include in Alain’s net family property his income tax liabilities as of her valuation date – which reduced the equalization payment owed to her. However, Irina points to other facts that she argues affect net family property which were not addressed.

i. The first fact relates to Alain’s leased vehicle: Irina argues that the arbitrator included no value for Alain’s leased vehicle. Alain did not provide a copy of the lease which would have the stated buy-back value. Irina argues that this reduced the equalization payment owed to her and that the Arbitrator should have provided reasons on why he accepted Alain’s inclusion of this debt without considering the asset value.

ii. The second fact relates to Alain’s inherited furniture: Irina argues that Alain claimed an exclusion from his net family property of $3,000 relating to having received inherited furniture. He did not include that value in his assets. Irina submits that Mr. Glass did not provide reasons why he accepted this exclusion when no value had been included in Alain’s net family property.

Spousal Support:

e. Irina Lefebvre submits that the length of the cohabitation was not referred to by the Arbitrator in his Award in the context of determining the duration of support. If Irina’s separation date is used, the SSAGs range of support was between 7.91 years (or 95 months) to 15.8 years (190 months). If Alain’s separation date is used, the SSAGs range of support was between 8.25 years (102 months) to 16.5 years (198 months). Irina argues that if the post-separation payments made by Alain for expenses are considered to be support, together with the interim support order, then adding support to February 1, 2027, results in a duration of 85 months – or 7 years and 1 month. This, Irina argues, is less than the SSAGs by 16 months. Mr. Glass’ Award does not provide an explanation why it is less than the low end of the SSAGs’ duration range.

Occupation Rent:

f. Citing Higgins v Higgins, 2001 28223 (ONSC) and Hutton v Wakely, 2025 ONSC 2848, Irina Lefebvre submits that the arbitrator either did not consider or (in the alternative) erred in the application of certain factors in coming to his final conclusion on “Occupation rent”.

g. Irina submits that there are certain facts in the form of three distinct periods, that the Arbitrator should not have included in “Occupation rent”. One, Irina submits that Mr. Glass should have considered that from February 2019 to March 2022, she could not have agreed to sell the house as she had no spousal support and could not afford to live anywhere else. As a result, Irina urges that over this period, occupation rent of $74,000 ought not to be awarded. Two, Irina argues that the two-month delay (April and May 2022) to list the property is not her fault – this delay was necessary delay to stage the house. Therefore the $4,000 occupation rent for these two months should not be awarded. Three, the period between June 1, 2022, and December 1, 2022, should not be delay attributed to her because she cooperated fully with the listing. These 6 months results in $12,000 of occupation rent that should not be awarded.

h. Irina also submits that Alain benefitted significantly from the increased value of the house which she puts at $240,000, a fact she claims was not considered by the Arbitrator.

33Relying on principles in Aronowicz, supra, Irina Lefebvre argues that the test for leave has been met. Specifically, that the parties are of modest means and if Irina is successful, she will receive support of $2125 per month for 16 months, will not owe Alain $37,370.60 and she will be owed an equalization payment of $144,474.00. These are significant amounts in the context of their means. She further submits that the errors made related to not applying the mandatory provisions (related to the required terms of the Agreement) are decisive to the validity and enforceability of the Award. She argues in the alternative that if the court finds the award is enforceable (and of legal effect) then the errors with respect to the family law issues are of such significance that they materially impact the rights and obligations of the parties.

34Despite the fact that she received ILA from the same counsel who is representing her on this Application for leave, Irina Lefebvre argues that she should be given leave to appeal the award based on the failure by the Arbitrator to comply with the mandatory provisions of the Family Law Act, the Arbitration Act and Regulations. Specifically, she directs this Court’s attention to the following, all of which have been considered:

a. As per section 1 of Arbitration Act defines a family arbitration as an arbitration that deals with matters that can be dealt with in a marriage contract, separation agreement, cohabitation agreement under the FLA. Matters can include spousal support, equalization and other property issues.

b. As per s 59.6 of the Family Law Act, a family arbitration award is enforceable only if four factors are met: A) the family arbitration agreement is made in writing and complies with the regulations under the Arbitration Act; B) each of the parties receive ILA; C) s. 38 of the Arbitration Act is complied with in writing, reasons and delivery to parties; and D) the arbitrator complies with the regulations under the Arbitration Act. Irina argues that there is no compliance with A + D so the award is not enforceable.

c. As per the Family Law Act, a family arbitration agreement is a domestic contract. As such, 56(4) of the Family Law Act applies and a court may, on application, set aside the domestic contract or a provision in it in accordance with the law of contract.

d. While s. 3 of Arbitration Act allows parties to contract out of provisions, in the area of family arbitration agreements, the right to contract out is limited.

e. As per s. 4(2) of the Arbitration Act, the right to object to non-compliance is not subject to time limits and cannot be waived. Irina argues that Alain cannot rely on the defense of delay or Irina not acting in a reasonable time.

f. As per ss 2.2 and 3(2) of the Arbitration Act, the arbitration has to be done according to Ontario laws and the laws of Canada that apply in Ontario.

g. The Arbitration Act Regulations require that the agreement should have included terms specifying the following.

i. The Arbitration is conducted as per the laws of Ontario and Canada.

ii. How the award may be appealed as follows

iii. Arbitrator will treat parties fairly

iv. Arbitrator has done mediation course and training

v. Arbitrator has conducted a screening for power imbalance etc.

h. Irina’s position is that since the Agreement does not have these terms, Mr. Glass should not have proceeded with the arbitration, and this constitutes an error in law.

POSITION OF RESPONDING PARTY – ALAIN LEFEBVRE:

35Alain Lefebvre, who is responding on this motion for leave to appeal argues that Irina Lefebvre alleges technical difficulties with the Agreement that she signed off on after receiving ILA. He takes issue with her questioning the Arbitrator’s qualifications after agreeing to having him assigned through legal counsel.

36Alain Lefebvre’s position is that Irina Lefebvre’s complaint about the lack of an explicit confirmation by Mr. Glass that he would treat the parties fairly ought to be rejected as a Retired Judge of the Ontario Superior Court should not be expected to set this out in writing, particularly when she failed to object to the form and contents of the Agreement, the appointment of Mr. Glass, his qualifications and jurisdiction.

37Alain Lefebvre points out the fact that Irina Lefebvre elected not to pursue the Screening Process even though it was offered. This was a decision she made with the assistance of legal counsel prior to signing the Agreement; the same legal counsel on this Application.

38Alain Lefebvre argues that Irina Lefebvre is seeking Leave to Appeal the Award on both questions of law and questions of mixed fact and law:

a. He alleges her questions of law as follows: The Agreement is not valid because the Arbitrator failed to ensure that the Power Imbalance Screening was conducted, did not provide an Agreement that was compliant with the Arbitration Act and failed to have the required training.

b. He alleges her questions of Mixed Fact and Law as follows: Valuation Date of December 31, 2018, was determined incorrectly (he should have accepted her Valuation Date of April 30, 2018), Net family Property was incorrectly determined, and Duration of Spousal Support was incorrectly determined.

39It is Alain Lefebvre’s position that given the parties’ agreement did not address the issue of appeal, the law requires her to apply for leave to appeal and if leave is granted, she can only appeal questions of law, reviewable on a standard of correctness.

40Relying on Rosenberg v Minster, 2014 ONSC 845, Alain Lefebvre urges this Court to focus on the goals of efficiency and expedience that the Arbitration Process is intended to promote. He submits that arbitration is a process that is expected to be less formal and more expeditious than a Court’s determination of the issues between the parties.

41With respect to adequacy of reasons, Alain Lefebvre relies on a body of case law that stands for the principle that in arbitration, inadequacy of reasons, in and of itself does not create a free-standing ground of appeal. He argues that arbitrators are not writing to inform the public in the same fashion as courts where the latter write partly to serve a precedential value. Instead, arbitrators are writing for two specific parties, such that reasons are permitted to be brief, so long as they sufficiently explain why the arbitrator reached the ultimate results.

42With respect to the legal principle of acquiescence, Alain Lefebvre relies on the body of case law where courts have taken a negative view of a party acquiescing to a procedurally irregular arbitration, only to raise that irregularity as a ground to set aside the arbitration award when it is not in that party’s favour.

43With respect to the arbitration agreement, Alain Lefebvre stresses the following factors: that it was signed with Independent Legal Advice, with the parties being represented by experienced counsel. Both sides elected not to pursue the “Power Imbalance Screening” process despite having been given the chance to. Neither party utilized section 17 of the Arbitration Act to challenge deficiencies in the agreement or the process.

44Related to Irina Lefebvre’s submissions on credibility findings, Alain Lefebvre argues that the arbitrator was not required to make credibility findings and that an arbitrator can conduct his or her analysis purely on documentary evidence. He also urges this court to find that the arbitrator considered the totality of both parties’ evidence and submissions.

45With respect to Irina Lefebvre’s submissions on the qualifications of the arbitrator agreed upon, Alain Lefebvre urges this court to consider the fact that Mr. Bruce Glass, the arbitrator agreed to by Irina, is a retired Judge of the Ontario Superior Court of Justice who would have presided over family law matters. As such he is not required to take any courses offered by the Ministry of the Attorney General to be qualified to arbitrate over family law matters. Since Irina agreed to his appointment, she should not be permitted to claim he was not qualified after the fact of receiving results she is not happy with.

46With respect to Irina Lefebvre’s position of a failure to comply with the relevant Acts and Regulations, Alain Lefebvre relies on the body of case law that concludes that it is patently unfair to allow the appeal of an award solely on the grounds of a technical failure to adhere to the requirements of the Arbitration Act and Regulations. Particularly in the absence of unequal bargaining power, duress or evidence that the party did not understand what she was agreeing to.

47With respect to valuation/separation date, Alain Lefebvre stresses that the date was selected by the arbitrator based on all the evidence and submissions that the parties presented. Again, he was not required to give lengthy reasons.

48With respect to net family property and equalization, Alain Lefebvre submits that findings in this area were based on all of the evidence and submissions of the parties. Alain directs this court’s attention to how “asset” has been defined by the Supreme Court of Canada, which will be reviewed shortly. Alain also submits that the arbitrator did in fact provide reasons for his decision in this area.

49With respect to the issue of spousal support, Alain Lefebvre urges this court to find that Irina’s calculations are incorrect and that her support duration did not go below the amount suggested by the SSAG. The calculations and conclusions reached by the arbitrator do not contain any errors in law and the arbitrator received all of the parties’ evidence and submissions. As such comprehensive reasons are not required. The arbitrator did not deviate from the SSAG. Irina would also have had recourse to section 44 of the Arbitration Act, which would have permitted her to request an amendment of the award so as to correct an injustice caused by an oversight on the part of the tribunal.

50With respect to occupational rent, Alain Lefebvre submits that it is unclear why Irina Lefebvre believes that he should not be credited for Occupation Rent, or that she refused to sell the home for a certain period of time. Specifically he submits:

a. If she believed at the time of receiving the award, that there was an error in the calculations, then like with spousal support, she had recourse to section 44 of the Arbitration Act, which would have permitted her to request an amendment of the award so as to correct an injustice caused by an oversight on the part of the tribunal.

b. With respect to Irina’s position that there was no evidence presented concerning the rental market value of the matrimonial home, Alain points out the fact that she never requested such evidence nor she herself provide any evidence to contradict Mr. Lefebvre’s evidence.

c. Irina Lefebvre’s argument that both parties refused reasonable offers on the home was made to the arbitrator and not found to be convincing.

d. Ultimately Irina benefited from any delay in selling the home as she lived there, denying access to Alain. The caselaw on this topic presented by Irina to this court was presented to the arbitrator, a very experienced and respected retired judge of the Superior Court of Justice.

51Alain Lefebvre submits that Irina Lefebvre has not met the test for this court to grant her application for leave to appeal the arbitration award as required under section 45(1) of the Arbitration Act. There are no questions of law that need to be addressed on appeal. The financial aspects of the award are questions of mixed fact and law. Irina Lefebvre’s primary attack is on the factual conclusions of the arbitrator with respect to the separation date, equalization, support duration and occupational rent. Regardless of how important the results may be in these areas, the results themselves do not alter questions of mixed fact/ law into pure questions of law.

52The only questions of law raised related to alleged technical deficiencies of the agreements. The case law related to technical deficiencies in the context of the pre-arbitration events as well as the arbitration events leads to the conclusion that there were no errors of law. The following facts are critical in undermining the request for leave to appeal: both parties were represented by experienced legal counsel, neither pursued the screening process, both sides provided extensive evidence in support of their positions, both sides were able to make fulsome submissions. All of which outweigh the fact of any technical deficiencies.

53Alain Lefebvre submits that the arbitration was conducted in accordance with the laws of Ontario and the applicable laws of Canada.

54Alain Lefebvre submits that as the arbitrator did not make any errors in law central to the determination of the substantive issues, the test for leave to appeal has not been met.

LEGISLATION & JURISPRUDENCE RELATED TO ISSUES RAISED

Jurisdictional Issues/Waiver

55The submissions made by Irina Lefebvre on this application for leave to appeal, which bring attention to the arbitration agreement not having the prescribed terms as per the Regulations are, in principle, issues which ultimately challenge the jurisdiction of the arbitrator to hear and determine issues at an arbitration hearing. In this regard two sections of the Arbitration Act come into play.

a. Section 17(3) of the Arbitration Act, 1991, S.O. 1991, c. 17 deals with the time for objections to jurisdiction. It reads: 17(3) A party who has an objection to the arbitral tribunal’s jurisdiction to conduct the arbitration shall make the objection no later than the beginning of the hearing or, if there is no hearing, no later than the first occasion on which the party submits a statement to the tribunal.

b. Section 4(1) of the Arbitration Act deals with waiver of the right to object making an exception for family arbitration. While section 4(1) provides that a party who participates in the arbitration despite being aware of some form of non-compliance with a provision of the legislation, or noncompliance in the agreement, who does not object to the non-compliance is deemed to have waived the right to object. Section 4(2) states that 4(1) does not apply to family arbitration.

56In Shinder v Shinder, [2022] O.J. No. 167, Kimmel J. addressed these sections in the context of a set of facts where the appellant argued that the arbitrator had no originating jurisdiction to hear and determine any of the issues raised at the arbitration proceeding because the arbitration agreement (family context) was not in the prescribed form. In the present application for leave, Irina Lefebvre is advancing similar arguments.

a. The respondent in Shinder relied on s. 17(3) of the Arbitration Act and a line of cases (not family law) to argue that the appellant had waived her right to object on appeal. Kimmel J. fairly noted that this position by the respondent was not without difficulty because of the cases being outside of family law.

b. Kimmel J. then went on to conduct an analysis of “source of the arbitrator’s jurisdiction” where the ultimate question to be answered was whether an arbitrator’s originating jurisdiction can be grounded in the arbitration agreement even though it not a signed family arbitration agreement with prescribed terms. In answering this, Kimmel J. started the analysis from first principles. She ultimately concluded that reading the Family Law Act and Arbitration Act together led to a conclusion that an award made pursuant to the family arbitration agreement that did not contain the prescribed provisions under the Regulation, while not enforceable by the court is not necessarily a nullity. It still remained within the discretion of the court under s. 46(1)(10) whether to set it aside.

c. For purposes of Irina Lefebvre’s application for leave, and in the context of her litigation history, I am persuaded by this reasoning in Shinder and apply it accordingly. Quite aside from the fact that it is rooted in first principles, it is also a wholistic application of the spirit and intent of the governing statutes related to family law litigation.

d. Additionally, in Shinder, at paragraph 53, Kimmel J addressed the body of jurisprudence where the fact scenarios involved an arbitrator proceeding without an agreement that met the regulatory formalities of a family arbitration agreement. Kimmel J. noted that that these cases were ones in which the arbitration had not yet occurred. (Giddings v Giddings, 2019 ONSC 7203 and Lopatowski v Lopatowski, 2018 ONSC 824). In these cases, the courts commented in obiter about the need for the arbitrator’s jurisdiction to be conferred by a contemplated further family arbitration agreement.

e. Kimmel J. then at paragraph 54 also noted the decision in Moncur v. Plante, 2021 ONSC 5164, where the court concluded that it would uphold the parties’ express intention in signed minutes of settlement to mediate and arbitrate by requiring the parties to sign a family arbitration agreement with the prescribed provisions. Significantly, Kimmel J. wrote, at paragraph 54, “In so far as this case might be interpreted to suggest that the prescribed form of family arbitration agreement is always required to confer jurisdiction upon an arbitrator in family arbitrations, or secondary family arbitrations, with the greatest of respect to my learned colleague, I disagree if that was the intended conclusion.

f. Having reviewed the above noted cases, I concur with Kimmel J. that the prescribed form of family arbitration agreement is not always required to confer jurisdiction on the arbitrator. From the perspective of common sense, and fairness to the parties who chose arbitration over a trial, it is logical to apply Kimmel J’s reasoning to the present matter given the litigation history, the number of significant steps that have occurred in the matter, all of which involved decisions by parties represented by experienced family law counsel. In arriving at this result, I also consider the jurisprudence related to the nature and goals of arbitration.

Nature and Goals of Arbitration

57In assessing the relative merits of the arguments of Irina and Alain Lefebvre, I conclude that it is important to remind myself of the nature and goals of arbitration as an alternative means of resolving disputes over the trial option. Irina Lefebvre, at various times, elected the trial path, and ultimately chose the arbitration path. I can only assume that through whatever legal advice she obtained, she weighed her options and chose the less formal route of arbitration.

58The Ontario Court of Appeal in Murphy v Murphy, 2015 ONCA 69 underscored the important goals of the Arbitration Process, being efficiency and expediency. At paragraph 11, the Court wrote:

In our view, the appeal judge erred in law in two ways. First, he applied the wrong test to the sufficiency of the arbitrator’s reasons. He cited criminal cases without regard to the goals of efficiency and expediency in the arbitration context. These goals have particular significance in a family law matter where finality is important –especially when a child is involved. Moreover Hickey v. Hickey 1999 691 (SCC), [1999] 2 S.C.R. 518 provides that significant deference must be given in relation to the determination of support orders. This principle recognizes that the discretion in making the order is best exercised by the person who heard the parties directly. This is of particular significance when the parties select an arbitrator well known and respected for his expertise and experience in the area of family law. In any event, in our view, the reasons although brief, do explain how he calculated the award and why he made it.

59As per Rosenberg v Minster, 2014 ONSC 845, where the court addressed a complaint about delay, at paragraph 58 the Court wrote “Arbitration is expected to be less formal, more expeditious and therefore faster than a court determination of issues. However, when that does not turn out to be the case, it takes more than just disappointed expectations for a party to be able to set aside an arbitration award. The mere fact of unanticipated delay does not destroy the arbitration agreement or invalidate the award. A party must show more, in the form of some prejudice or actual unfairness that fundamentally undermines the agreement to arbitrate. (emphasis added)

60The gatekeeping role of courts was underscored in Gragtmans supra at paragraph 61, where the court wrote: “As Petersoo makes clear, the courts perform a gatekeeping role in applications for leave to appeal family law awards. Courts are not to interfere lightly in the results of private arbitrators, particularly in matters such as this where the parties “bargained for finality” using narrow appeal rights.”

Adequacy of Reasons

61Given that Irina Lefebvre alleges that the reasons of the arbitrator do not adequately explain how certain conclusions were reached, it is helpful to review some of the jurisprudence on the issue of “Adequacy of Reasons”. This will assist in determining whether leave to appeal an arbitrator’s award should be granted on this basis under section 45 of the Arbitration Act.

a. As per Myers v Vickar 2012 ONSC 5004, paras 57, 84, 85, 86, 93, in the context of an arbitrator’s award, the inadequacy of reasons, in and of itself, does not create a free-standing ground of appeal. The court held that arbitrators are writing for two specific people who share a lengthy history. The justification for briefer reasons lies in the fact that the parties chose an arbitrator together, who has experience and expertise that both accept, to help them resolve the family law issues. As such, arbitrators agreed upon by both parties in a family dispute are not required to set out all of the parties’ arguments, the relevant statutory provisions, the jurisprudence etc. A failure to do so does not invalidate their reasons nor their results. Even in circumstances where a reviewing Court might conclude that the Arbitrator should have done more to demonstrate their reasoning, the reviewing Court can still conclude that the Arbitrator knew all the issues that needed to be decided and so did not commit an error in law. Unlike courts who might be writing to inform the public, arbitrators are not writing with that same purpose as the award is not meant to have value as a precedent.

b. Unless the reviewing court is satisfied that there is proof that an omission in reasons is due to a misapprehension or neglect of evidence, the reviewing court can presume that the evidence was reviewed in its entirety. As per Rosenberg v Yanofsky, 2019 ONSC 6886 at para 43.

c. It has been held that arbitration awards will sometimes diverge from what one might expect from a trial judge’s reasons. The key takeaway from this is that arbitration is chosen by the parties because it is less costly and more efficient than more formal Court proceedings. The reasons are permitted to be brief. As per Kroupis-Yanovski v Yanovski, 2012 ONSC 5312 at para 114, 116, 118.

d. If the reasons are brief related to financial matters, as long as they explain how the calculations were made and why, then they are adequate. As per Murphy v Murphy, 2015 ONCA 69 at paras 8 & 11.

62Related to Irina Lefebvre’s contention that findings of credibility were not made, and that this is an error of law giving her an avenue of appeal, the case of Kroupis-Yanovski v Yanovski, 2012 ONSC 5312 provides helpful guidance. In Kroupis, at paragraphs 99 – 100, the Court held that it was open to the arbitrator to rely on unsworn evidence (financial statements, income tax returns, notices of assessment, bank account statements and credit card statements) to make conclusions on income and that the arbitrator did not err in law in reaching this conclusion without the benefit of sworn testimony and opportunity for cross-examination.

Acquiescence:

63Given the facts that Irina Lefebvre elected to sign an agreement without the prescribed terms (of the Regulation), elected to not avail herself of the power imbalance screening process, agreed to the arbitrator chosen with the assistance of legal counsel, it is useful to set out the case law related to the legal principle of “Acquiescence”. The following cases are instructive.

a. The Ontario Court of Appeal held in Petersoo v Petersoo, 2019 ONCA 624, [2019] O.J. No. 3868, (para 46) that a party is not entitled to stay silent, participate in the proceedings without objection, wait to see what the ruling is and then claim procedural unfairness when the decision is against that party. In Petersoo, the father acquiesced in the late notice and instead of raising the issue and seeking an adjournment, he proceeded with the hearing and raised the objection only when the result was not to his liking.

b. In Rosenberg v. Minster, 2014 ONSC 845, the Court held that the lengthy delay in issuing the awards did not amount to an error in law, as the parties had acquiesced in part of the delay and the delay did not prejudice the mother. At paragraph 58, the Court wrote (emphasis added) “Arbitration is expected to be less formal, more expeditious and therefore faster than a court determination of issues. However, when that does not turn out to be the case, it takes more than just disappointed expectations for a party to be able to set aside an arbitration award. The mere fact of unanticipated delay does not destroy the arbitration agreement or invalidate the award. A party must show more, in the form of some prejudice or actual unfairness that fundamentally undermines the agreement to arbitrate.

Arbitration Agreements/Regulatory Formalities

64I find the following jurisprudence of assistance in providing helpful guidance on the validity of Arbitration Agreement which do not meet regulatory formalities.

a. Kimmel J held in Shinder v Shinder, [2022] O.J. No. 167, (paragraphs 51-52, 61-65) that agreements that do not meet the regulatory formalities (prescribed standard provisions under the Regulations) are not necessarily a nullity as it remains within the discretion of the court to determine whether to set it aside under s. 46(1)(10) of the Arbitration Act. Agreements that do not meet the regulatory formalities are not presumptively invalid, particularly where the Arbitrator was properly appointed, the parties had legal counsel, and the process is not demonstrated to be unfair. Participating in the Arbitration process on the basis that the Agreement is binding, and with the assistance of counsel can preclude a party from trying to argue that the agreement is not valid on technical grounds when they get a result not in their favour.

b. Gray J, in Lopatowski v Lopatowski, 2018 ONSC 824, held (at paragraph 55) that there was nothing in the draft parenting coordinator agreements presented by the parenting coordinator that would be inconsistent with the basic understanding, that the parties had agreed to, that the parenting coordinator was to mediate disputes and if necessary, arbitrate them. The fact that the parties had experienced counsel was an important factor. In coming to this conclusion, at paragraph 56, Gray J. relied on the unanimous judgment of the Supreme Court of Canada in Bhasin v Hrynew, 2014 SCC 71, where the Court recognized a general organizing principle of good faith contractual performance, and the common law duty which applies to all contracts to act honestly in the performance of contractual obligations.

65Related to Irina Lefebvre’s position that there is a lack of compliance with the legislation and regulations thus giving her a route of appeal, Kroupis-Yanovski, supra, provides helpful principles. At paragraph 106, the Court wrote “If one were to accept the appellant’s interpretation that the mediation/arbitration agreement required sworn testimony and cross-examination, the parties’ agreement to proceed by way of final offer selection constitutes, at most, an amendment to their agreement. If it is an amendment to a family arbitration agreement, it did not comply with the technical requirements in that it was neither signed by the parties nor witnessed. Then at paragraph 107, the court, in Kroupis-Yanovski, supra, concluded that it would be patently unfair to the respondent to allow the appeal solely on the basis of this technicality. Significant for the court was the absence of any suggestion of unequal bargaining power, or duress, or any suggestion that the appellant did not understand what he was agreeing to. Again the fact of legal counsel was a relevant fact.

FINAL CONCLUSION ON LEAVE TO APPEAL

Jurisdictional Issues:

66As previously indicated, having reviewed and considered the Shinder case, I find persuasive the conclusions reached by Kimmel J. at paragraph 54 in the context of the litigation history of this matter. I disagree with submissions made on behalf of Irene Lefebvre that Shinder is decided incorrectly. Kimmel J. conducted a wholistic analysis of the legislation (both Family Law Act and Arbitration Act and Regulations) in the context of a set of facts where the parties engaged in a lengthy arbitration process, represented by experienced legal counsel.

67Kimmel J. approached the analysis promoting substance over form, which makes sense given the stated principles and purposes of the arbitration process. Those principles have an important role to play when assessing whether to permit leave to appeal under section 45 of the Arbitration Act. Here the conduct of the parties is important. Both consented to engaging in a lengthy arbitration process involving the filing of facta, presentation of evidence, and hearing of submissions. All while represented by experienced family law legal counsel – the same counsel on this application. There is no suggestion or evidence of ineffective assistance of counsel by Irina Lefebvre, meaning that the process and agreements agreed to by Irina Lefebvre unfolded with the effective assistance of legal counsel. Irina Lefebvre has not filed any evidence to the contrary to suggest otherwise.

68Kimmel J. very fairly acknowledged at paragraph 57 that where parties have entered into an arbitration agreement but have contemplated that they will execute a further formal agreement conferring jurisdiction, then the preponderance of the cases have suggested that the arbitrator does not have jurisdiction until that further agreement. Kimmel J. balanced that with her reasoning set out in paragraph 58 of Shinder where she found that in certain circumstances, jurisdiction can be conferred on the arbitrator by virtue of the agreement to arbitrate despite the fact that it was not in the prescribed form.

69I concur with this approach taken by Kimmel J. in Shinder, which applies a commonsense analysis and approach. It emphasizes the conduct and intention of the parties rather than the form of the agreement. Kimmel J. went on to review the conduct of the parties between paragraphs 61 and 67 and recognized the fact that the parties had the benefit of experienced legal counsel all through the lengthy process.

70In doing so Kimmel J. quite properly, at paragraph 66, applied the sentiment of the Ontario Court of Appeal from Geropoulos v Geropoulos [1982] O.J. No. 3179 and Owers v Owers, 2009 ONCA 296 that the court should, where possible, overlook a failure to adhere to statutory requirements where the parties’ intentions are clear and the implication of giving effect to those requirements would be “wholly inconsonant with the established policy of encouraging the settlement of disputed claims. Parties should not be permitted to withdraw at will from agreements entered into by their legal representatives during the course of litigation.

Arbitration Process

71In determining whether Irina Lefebvre has satisfied this court as to the pre-requisites set out in section 45(1) (a) and (b), it is important to consider the jurisprudence that establishes that Arbitration is expected to be less formal, and more expeditious over a court determining the issues at a formal trial. As stated in Rosenberg, supra, it should take more than disappointed expectations for a party to be able to set aside an arbitration award. I query whether, if the award in this matter was more in the favour of Irina Lefebvre, she would question the jurisdiction of the arbitrator and the validity of the agreement that she signed after receiving independent legal advice from counsel presumed to provide effective legal assistance. I conclude she would not and that she is bringing this application only on the basis of receiving a result not to her satisfaction.

72I am obligated to apply the binding legal principles enunciated by the Ontario Court of Appeal related to the goals of the Arbitration process being efficiency and expediency as per Murphy, supra, and Hickey, supra. I conclude that when addressing a complaint such as “no findings of credibility”, I must recognize that significant deference must be given to the arbitrator, who is assisting the parties in a process intended to be efficient and expedient, and not like a full trial, particularly when the parties jointly agreed to the arbitrator who was well known for his expertise and experience in the area of family law. This conclusion is based on the guidance of the Ontario Court of Appeal in Murphy, supra, as well as the Supreme Court of Canada in Hickey, supra. Applying the principles from these cases, which I am bound by, I find that great deference is owed to the arbitrator’s findings in the present case, who is a retired judge of the Superior Court of Justice.

Legal Errors alleged by Irina Lefebvre

73Turning then to the alleged errors relied upon by Irina Lefebvre in seeking leave to appeal, I apply the reasoning of the Supreme Court of Canada from Canada (Director of Investigations and Research) v. Southam Inc., 1997 385 (SCC), [1997] 1 SCR 748 (SCC), I find that Irina Lefebvre is seeking leave to appeal the award on both questions of law and questions of mixed fact and law.

74The questions of law relate to her submissions that the agreement is not valid because it does not contain standard provisions as set out in section 2(4) of Ontario Regulation 134/07. With these submissions, she is bringing into question the jurisdiction of the arbitrator to hold a hearing on the issues that the parties brought to the attention of the arbitrator. Such complaints relate to the correct legal test to apply to both the legitimacy of the agreement and the jurisdiction of the arbitrator, thus making them questions of law. In her application they are framed as follows:

a. Section 2(4)(1) requires a provision that the arbitration be conducted in accordance with the law of Ontario and the law of Canada as it applies in Ontario;

b. Section 2(4)(2) requires a provision setting out routes of appeal (choose either i (in accordance with subsection 45(1) of the Arbitration Act) OR ii (question of law, question of fact, or mixed fact and law));

c. Section 2(4)(5) requires a provision where the arbitrator confirms that

i. the parties will be treated equally and fairly.

ii. the arbitrator has received the appropriate training approved by Attorney General.

iii. the parties were separately screened for power imbalances and domestic violence etc.

75Irina Lefebvre also argues that the arbitrator erred by not making any findings of credibility. This submission necessitates an inquiry into whether the facts satisfy the legal tests and as such I find a complaint on this basis is a question of mixed fact and law. If I am wrong in this conclusion (mixed fact and law), I rely on the body of case law cited above related to adequacy of reasons. Based on Myers , supra, inadequacy of reasons, in and of itself does not give Irina Lefebvre a free-standing ground of appeal since arbitrators are writing for two parties. An arbitrator’s decision is not meant to have precedential value. As such I conclude that there is no merit to Irina Lefebvre’s submission that she ought to be given leave to appeal based on inadequate explanation of credibility findings. Common sense dictates that from the results of the award, the arbitrator made reasonable inferences related to the credibility of the parties’ evidence.

a. Utilizing the principles in Rosenberg, supra, I am not satisfied that there was a misapprehension or neglect of evidence. As such I can presume that the evidence was relied upon in its entirety.

b. As per Kroupis-Yanovski, supra, arbitration awards are not intended to be akin to a trial judge’s reasons because an arbitration is not a trial. It is chosen because it is less costly, and more efficient than a formal trial.

76I further conclude that Irina Lefebvre’s submissions in the following areas are questions of mixed fact and law. The inquiry as per her complaints centers on whether the facts satisfy the legal tests in these areas. As such these complaints cannot provide her a route to seek leave to appeal the arbitrators award.

a. The valuation date was determined incorrectly.

b. The net family property was determined incorrectly.

c. Duration of spousal support was determined incorrectly.

d. Occupation rent was determined incorrectly.

Arbitration conducted & Test for Leave: Section 45 of the Arbitration Act

77Subsections 1 to 3 of section 45 of the Arbitration Act contemplate the following three scenarios:

a. Section 45(3) contemplates an agreement that contains a provision allowing the parties to appeal an award to the court on a question of fact or on a question of mixed fact and law. No leave is required.

b. Section 45(2) contemplates an agreement that contains a provision allowing the parties to appeal an award to the court on a question of law. No leave is required.

c. Section 45(1) contemplates an agreement that does not contain a provision related to appeals on a question of law. Here a party may appeal an award to the court only on a question of law. Leave is required. To grant leave, the court has to be satisfied that the party establishes both the importance to the parties of the matters at stake and that a determination of the question of law at issue will significantly affect the rights of the parties.

78I find that the provision of these three separate scenarios in section 45 clearly contemplates agreements that might not contain a provision dealing with appeals. As such and given that the agreement in this matter does not contain a provision dealing with routes of appeal, I find that Irina Lefebvre’s application for leave to appeal can only be addressed under scenario “c” above. Meaning restricted to questions of law with the court having to then consider if she has satisfied the court of the existence of the factors in section 45(1) (a) and (b).

79As such I will consider whether leave should be granted only on the questions of law set out above. Leave will not be granted to appeal questions of mixed fact and law.

a. For example, with respect to valuation date, this was determined to be December 31, 2018, according to the evidence, case law and submissions presented by both sides. Given the nature of the arbitration process, lengthy reasons are not required. By virtue of making a finding of fact on valuation date based on an application of the relevant law, the issue of valuation date becomes a question of mixed law and fact. This does not give Irina a route for appeal.

b. Findings of fact made related to net family property were based on the evidence presented by both sides (which included a “Joint Expert Report”) and the application by the arbitrator of the relevant case law and submissions made by counsel for both parties. Given that “Asset” is not defined in the Family Law Act, this Court is guided by the definition “Asset” (albeit in a different context) – defined as “property or interest in property that can actually be used to discharge... Debts and liabilities…”. See S.A. v. Metro Vancouver Housing Corp. 2019 SCC 4 at para 48.

c. In doing so, this Court concludes that any property that does not fall within this definition ought not to be included in the computation of “net family property” as an asset. This would include the leased vehicle that was used by Irina Lefebvre, paid for by Alain Lefebvre, as well as the inherited furniture and tools listed by Alain Lefebvre as excluded property. If Irina Lefebvre believed it was necessary, it was open to Irina Lefebvre to have made submissions to the arbitrator pursuant to ss. 44 (1) – (3) of the Arbitration Act, related to the leased vehicle and inherited furniture, during the arbitration submissions portion. Either she made them and they were not accepted or the arguments were not made.

d. Related to the “Equalization Award”, the documentation regarding Alain Lefebvre’s debts and expenditures was unchallenged by Irina Lefebvre. In other words, this evidence was uncontested. As such, this Court finds that Alain Lefebvre met his onus as per section 4(3) of the Family Law Act. She should not be permitted to raise issues from her failure to do so on this application for leave to appeal at this juncture.

e. Arbitrator Glass, at paragraph 12 of his decision, writes that “the materials provided by the parties regarding equalization have been reviewed”. Following which he makes a conclusion that the Applicant’s (Alain’s) materials correctly set out an equalization amount. Given the nature and spirit of arbitration proceedings, this is sufficient – he is not required to enumerate pieces of evidence he considered and the weight he placed on said evidence. If Irina Lefebvre intended to seek that she should have had a trial – she elected not to do so.

80In relation to the questions of law identified, I will assess whether Irina Lefebvre has established the pre-requisites under sections 45(1) (a) and (b). This assessment will also take into consideration the following:

a. The principles enunciated in Gragtmans supra and Petersoo supra, that direct me to my obligation to perform a gatekeeping role in applications for leave to appeal family law awards. The result of which is not to interfere lightly in the results of private arbitrators especially in circumstances where the parties had legal representation, conducted a lengthy arbitration, took the opportunity to present evidence and submissions and bargained for finality. An active choice made not to have a trial.

b. The jurisprudence cited above from the Ontario Court of Appeal related to “Acquiescence” and the principle that a party is not entitled to stay silent, participate in the proceedings without objection, wait to see what the ruling is and then claim procedural unfairness because the party is not happy with the result.

Question of Law: Regulation section 2(4)(1): Arbitration in accordance with laws of Ontario/Canada

81Can it be said that there is an air of reality to the notion that the arbitration was not done in accordance with the laws of Ontario and the laws of Canada applicable to Ontario? The answer is no for the following reasons:

a. The proceeding was commenced in the Ontario Superior Court of Justice where prior to the arbitration, certain steps took place in accordance with the laws of Ontario. They include:

i. Retaining counsel familiar with the litigation process involved in Family Law files in the Superior Court of Justice.

ii. The filing of legal documents and provision of legal submissions in the course of a Family Law file.

iii. A consent spousal support order dated March 2022.

iv. Court case management meetings with a case management judge of the Ontario Superior Court of Justice.

v. Trial Management conferences.

vi. Mediation/Arbitration meetings

vii. Signing of an Arbitration Agreement after ILA.

viii. Matter being placed on a trial list at the request of Irina Lefebvre.

ix. Offer of a screening process to Irina Lefebvre for power imbalance and subsequent election by her not to pursue this.

x. Cross examinations.

xi. Facta exchange following the cross examinations with the assistance of presumed effective legal counsel.

xii. Oral arguments where counsel were able to refer to the applicable laws of Ontario and Canada.

82With this backdrop I turn to the prerequisites in section 45(1) (a) and (b). Can it be concluded that Irina Lefebvre has satisfied this court of these related to the question of law dealing with the laws of Ontario/Canada? The answer is no.

a. Section 45(1)(a) – Here, the focus is on the importance to the parties of the matters at stake, focusing on the laws of Ontario/Canada. Based on the litigation history and the steps in the process that were achieved, I find that granting an appeal on the question of law related to whether Ontario/Canada law was applied would not yield anything different. It is abundantly clear that the laws of Ontario and Canada were applied.

b. Section 45(1)(b) – Here the focus is on the determination of the question of law at issue (what laws were applied) and whether it would significantly affect the rights of the parties. Given the substantive steps taken as per the Family Law Act of Ontario, as well as the Arbitration Act of Ontario, and the family laws of Canada applicable in Ontario, I conclude that granting an appeal on this basis would not significantly affect the rights of the parties.

83I conclude that leave to appeal on the basis of a question of law grounded in Regulation 2(4)(1) must be denied. Irina Lefebvre has failed to meet her onus in this regard.

Question of Law: Regulation section 2(4)(2): Route of Appeal

84Section 45(1) provides Irina Lefebvre a route to appeal questions of law.

85In September 2023, both parties confirmed they had received ILA after which they signed their arbitration agreement. The parties were at all times represented by legal counsel. There is no suggestion in the application for leave that legal counsel who represented Irina Lefebvre provided ineffective legal assistance. The presumption being it was effective. In October and November Irina Lefebvre waivered between mediation, trial track and back to mediation. Cross examinations occurred in September and October 2024 where the parties continued to be represented by legal counsel. With the assistance of legal counsel facta were exchanged in January 2025 and oral arguments occurred in February 2025.

86With this backdrop, can it be concluded that Irina Lefebvre has satisfied this court of the section 45(1) (a) and (b) prerequisites? A reasonable inference and one which I draw is that Irina Lefebvre was represented by legal counsel presumed to be knowledgeable in family law litigation in Ontario including routes of appeal. As such, I conclude:

a. Section 45(1)(a) – Here the focus is on the importance to the parties of the matters at stake, focusing on appeal routes. Given that she received the assistance of legal counsel presumed to know family law, what is a question of fact, law, mixed fact and law, I conclude that there is a presumption that it would have been explained to her, “what the important matters are for her and what is at stake”. I have no evidence to the contrary on this Application.

b. Section 45(1)(b) – Here the focus is on the determination of the question of law related to appeal routes and whether granting leave will significantly affect the rights of the parties. I find that it would not. I rely again on the fact that there is a presumption that she received effective independent legal advice on the issue of routes of appeal before signing an agreement that did not contain a specific clause on the topic. As such granting her leave related to routes of appeal would not significantly affect the rights of the parties.

87In considering if leave should be granted on the question of law related to appeal routes, an important factor is the potential of relevance of for the appeal court would the history of the litigation where ILA occurred before Irina Lefebvre signed the agreement. As well as the fact that she waivered between trial track and mediation/arbitration track presumably weighing her options including routes of appeal. In this regard, persuasive is paragraph 30 of Aronowicz supra, where Perrell J. held that even if there may be an error of law, if it caused no miscarriage of justice or the error of law would not provide a reason for overturning the award, then leave to appeal should not be granted.

88I conclude that leave to appeal on the basis of question of law grounded in Regulation 2(4)(2) is denied. Irina Lefebvre has failed to meet her onus in this regard.

Question of Law: Regulation section 2(4)(5):

89Can it be said that said that there is an air of reality to the notion that during the arbitration process:

a. The parties were not treated equally and fairly?

b. The arbitrator had not received the appropriate training approved by the Attorney General?

c. The parties were not separately screened for power imbalance and domestic violence?

90Relying on the history of the litigation outlined above, I conclude that there is no credible or reliable evidence to support the contention that:

a. The parties were not treated equally and fairly. If the contrary was the case, then there was a positive obligation on the part of experienced counsel representing Irina Lefebvre to prove otherwise. I also have no evidence from Irina Lefebvre on this Application that she was treated unequally or unfairly.

b. The arbitrator had not received appropriate training approved by the Attorney General. As an experienced retired justice of the Superior Court of Justice who was accepted by Irina Lefebvre to preside over the arbitration, there is a reasonable inference and presumption that Bruce Glass would have been appropriately trained to arbitrate family court matters as required by the Attorney General. To suggest otherwise is to put forth a submission without merit, particularly when he was agreed to by experienced legal counsel. I have no evidence on this Application that by virtue of his career as a Superior Court Justice who presided over family matters, he did not receive the appropriate training. I have no evidence that Irina Lefebvre challenged this either before agreeing to this arbitrator or during the arbitration. Common sense dictates that if this was a live and credible issue, it would have been raised. I have no evidence that it was.

c. Irina Lefebvre was denied the opportunity to be screened for power imbalance and domestic violence. A reasonable inference that flows from her declining the request for this screening when she was represented by experienced legal counsel is that she had no basis to suggest that there was such a power imbalance. Through the assistance of legal counsel, she declined this screening request. She has presented no credible nor reliable evidence that she should have been screened and that her legal counsel either refused or failed to follow up on her request. Most importantly she has not presented evidence to me that there was a power imbalance or domestic violence.

91Given the litigation history in this matter, leave to appeal on the basis of the questions of law grounded in the above noted three areas (not treated equally/fairly, no training, no screening/domestic violence), is denied. Irina Lefebvre has failed to meet her onus in this area.

92In conclusion it is worth noting the guidance of the Supreme Court of Canada in Bhasin v Hrynew, 2014 SCC 71. There is a general organizing principle of good faith contractual performance and the common law duty which applies to all contracts – to act honestly in the performance of contractual obligations. Applying that principle, I find that Irina Lefebvre’s Application for Leave to appeal the award of Arbitrator Glass must be dismissed. Her submissions have the tenor capable of breaching the principle of good faith contractual performance, particularly in the context of her being represented by legal counsel familiar in the area of family law. The very same counsel who now makes arguments that potentially call into question the legal advice given to Irina Lefebvre. In the absence of evidence to the contrary, this court concludes that the advice given and accepted by Irina Lefebvre from her legal counsel was sound and effective. To wit, in the following areas: wording of the arbitration agreement, steps offered and refused, jurisdiction of the arbitrator.

93Accordingly, Irina Lefebvre’s application for leave to appeal is dismissed as she has failed to meet her onus under section 45 of the Arbitration Act.

Justice B. Bhangu

Released: January 16, 2026

CITATION: Lefebvre v. Lefebvre, 2026 ONSC 305