CITATION: Cawley v. Brown, 2026 ONSC 4165

COURT FILE NO.: FS-22-00031696-0001

DATE: 20260717

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Daniel Micheal Cawley

Applicant

– and –

Heather Michelle Brown

Respondent

Self-represented

Self-represented

HEARD: July 16, 2026

C. STEVENSON J.

Overview

1I must decide whether disputes between the parties which arose after they signed a settlement agreement should be decided by the Court in the hearing of the Mother’s pending Motion to Change, or referred to arbitration.

2The parties signed a separation agreement on March 7, 2024. This was turned into a Final Order by Justice Presser on June 27th, 2025.

3The respondent Mother issued her Motion to Change dated October 27, 2025 seeking numerous changes to the Final Order. This motion to change arose after unsuccessful attempts to arbitrate various disputes which had arisen after the date of the Final Order.

4The applicant Father brings this motion to stay the Mother’s motion to change based on the arbitration clauses in the Final Order. He wants the outstanding issues to be arbitrated by a lawyer, Ms. M. Mehra, or if Ms. Mehra won’t act as arbitrator, by someone appointed from a list of four possible “parenting coordinators” that the Father will identify later.

5I have decided that while I have the discretion to appoint Ms. Mehra, or someone else, to be the substitute arbitrator, I am not prepared to do so. The Father’s motion is dismissed. The issues will have to be litigated in court, not in an arbitration.

The first issue is whether the Arbitration clauses in the Order are inoperative because they name a specific arbitrator who is not prepared to act?

6I find that the arbitration clauses (which are often called a secondary arbitration agreement in this context) are operative and that the Court has jurisdiction to appoint a substitute arbitrator. Whether it should do so is the second issue which is discussed under the next heading.

7The Final Order does not impose a general requirement to arbitrate all disputes arising after the Final Order. Instead it provides for specific disputes to be arbitrated on a summary basis by a lawyer, Ms. Jessica Braude.

8Para. 3 of the Final Order states that if “the parties are unable to make a parenting decision together, they shall resolve the dispute by arbitration with Jessica Braude (JJ Integrative Family Law LLP)” ...

9Paras 4e. requires the parties to use Ms. Braude to resolve disputes over the holiday parenting schedule.

10Para. 5c allows either party to have Ms. Braude determine certain annual financial disclosure matters and requires that she must determine any changes to child support.

11Para. 6 says that certain issues about s.7 expenses are parenting decisions which must be arbitrated by Ms. Braude.

12Para. 9 provides that any dispute about sharing the disability tax credit shall be arbitrated by Ms. Braude.

13Some of these issues arose soon after the Final Order was signed. The parties submitted them to arbitration. Ms. Braude declined to be the arbitrator.

14The parties did not immediately resort to the courts. They instead agreed to use Ms. L. Shafir, another lawyer at JJ Integrative Family Law LLP, as the arbitrator. The arbitration proceeded over the course of many months before Ms. Shafir, after the parties had first completed Domestic Violence Screening, obtained independent legal advice and signed an additional arbitration agreement specific to Ms. Shafir. It is an understatement to say that both parties were unhappy when Ms. Shafir retired before issuing an Arbitration Award.

15The parties then considered using another lawyer, Ms. M. Mehra, as the arbitrator. Although the Father says Ms. Mehra was agreed upon, it is uncontested that the parties have not signed any further arbitration agreement with her (as she required) or paid a deposit and they have not completed Domestic Violence Screening or obtained independent legal advice.

16Ms. Mehra advised the parties that arbitration was not appropriate for part of the dispute and she recommended that she should act as parenting coordinator and mediator, rather than arbitrator.

17No resolution was reached on Ms. Mehra’s role because the Mother declined to continue those discussions. Instead, on September 23, 2025 the Mother initiated her Motion to Change. She argues that there is no operative arbitration agreement because the Final Order requires an arbitration to be conducted only by a named arbitrator, namely, Ms. Braude.

18Subsection 16(3) of the Arbitration Act, 1991 allows the court to appoint a substitute arbitrator where an arbitration agreement does not provide for one. This does not apply, however, if the agreement provides that “the arbitration is to be conducted only by a named arbitrator.” (subsection 16(5)).

19In an oppression remedy case, Brown v. Wise, 2010 ONSC 5185 Justice Newbould expressed the view that he could have appointed a substitute arbitrator where the named arbitrator was no longer available because the clause did not expressly say words to the effect that the named arbitrator was the “only” possible arbitrator. Justice Newbould emphasized that the parties could have expressly said that in that person’s absence, the issues must be dealt with in court. The fact that they did not say so contributed to the court’s conclusion that an alternative arbitrator could be appointed, although that did not happen for unrelated reasons.

20In the family case of Kaplan v. Kaplan, 2015 ONSC 1277 the court applied similar reasoning (at paras. 89-90) to conclude that the parties had not used sufficiently definitive language to preclude the court appointing a substitute arbitrator, if otherwise warranted.

21I adopt the same analysis. The parties did refer to Ms. Braude as the anticipated arbitrator and her name is the only name that was used, but they did not expressly say that only she could arbitrate these issues. There was nothing in the evidence to suggest that Ms. Braude had any particular expertise on these issues or the specific trust of both parties and they did not trust anyone else. There is nothing to warrant the conclusion that the parties did not intend to arbitrate these issues even if Ms. Braude was unavailable.

The Second Issue is whether the Court should appoint a different arbitrator.

22The court has a discretion to appoint a different arbitrator under subsection 16(3) of the Arbitration Act. I will not, however, exercise that discretion in light of the circumstances described below.

23First, as noted, the named arbitrator declined the mandate. The fact that no alternate was named in the Final Order and no replacement process was specified is a relevant factor in the exercise of my discretion, even if it does not make the arbitration agreement inoperative.

24Secondly, the parties did agree on a replacement arbitrator, Ms. Shafir. Thus, the parties tried to make arbitration work. But this attempt did not work due to Ms. Shafir’s retirement. Unfortunately, that process was expensive, caused delay and was inconclusive. Furthermore, the Mother claims she was coerced by the Father into accepting Ms. Shafir when he withheld child support until the Mother agreed to that appointment. The high conflict of this family case is a significant factor in favouring court supervision, rather than directing a private arbitration dependent, in part, on the arbitrator being paid by both sides.

25Thirdly, the Father requests that Ms. Mehra be appointed as the arbitrator, even though she has apparently expressed a disinclination to act as one, at least in respect of the parenting issues covered by paragraph 3 of the Final Order. The evidence does not disclose whether she is prepared to act on any of the other issues, such as the income and child support determination. The fact that she has not committed to act is relevant. If she is appointed by the court and then declines to act, the parties will be back to square one.

26Fourthly, the Father has not suggested any other names. He suggests a process whereby he would provide four names and the Mother would select one of the four, failing which he would select one of the four. This proposal might be an offer in a negotiation. It is not an appropriate basis for this Court which should be appointing a specific person with appropriate experience who is willing to take on the job after all the usual prerequisites have been satisfied (domestic violence screening and ILA), including sorting out agreeable financial terms.

27Fifthly, the Father has not shown that the issues to be decided on the Motion to Change are all covered by the basket of arbitration clauses in the Final Order. There is a reasonable prospect that a Motion to Change would have to proceed concurrently with an arbitration because it raises issues which are not subject to arbitration. That would be inefficient and counterproductive.

28Sixthly, while the Mother is not indigent, she has reasonably complained about the cost of the failed arbitration process and says she cannot afford to continue to arbitrate piecemeal in this high conflict litigation: in which the parties seem to be unable to agree on even the most basic premises. (I do note the irony that they did agree on appointing Ms. Braude, although apparently, they failed to consult her in advance to ensure she would act).

Conclusion

29While the court owes deference to the arbitration process, the reality is that the limited arbitration process which the parties agreed upon was poorly conceived and has failed the parties; both in the refusal of the named arbitrator to act and the inability of the replacement arbitrator to issue an Award.

30The Court will not exercise its discretion to appoint a substitute arbitrator. The disputes must proceed in the court process in the normal course. This is not to endorse any aspect of the proposed Motion to Change. That has not been the subject of this motion, other than indirectly as the catalyst for the Father to bring his motion. The Father’s motion is dismissed.

31The Mother asked for $3,000 in costs, which is what she paid a lawyer to assist her in responding to this motion.

32I am not awarding any costs of this motion. The parties agreed on the terms of the Final Order and therefore on what has proved to be a defective arbitration process. They have wasted money on the arbitration process and they have now wasted money on undoing what they mutually agreed to put in the Consent Final Order.

33I urge the parties to take a more reasonable position on the merits of the issues which must now return to the courtroom. I ask them to keep in mind that the time and money they are expending on this continuing conflict could be better devoted to the benefit of their children.

C. Stevenson J.