In the case at bar, the husband appealed an Arbitrator’s Order that directed that the parties’ Matrimonial Home be partitioned and sold, and that the proceeds of sale be equally split between the husband and wife. The husband further appealed the Arbitrator’s cost award, which granted full recovery of costs to the wife in the fixed amount of $36,300.00.
The parties in this case had jointly purchased the matrimonial home in 1984. In 1986, the parties separated. The wife submitted in evidence that she felt forced to leave the home at the time of her separation because of her husband’s violent temper. According to the wife, the night before the parties’ separation, the wife was beaten up and thrown out of the house by her husband. The husband, on the other hand, lived in the matrimonial home from the time of the parties’ separation forward, and had since that time paid off the mortgage. In the meanwhile, the wife was forced to pay rent in an amount greater than the husband’s monthly mortgage payments, just in order to secure alternate accommodations. The arbitrator fully accepted the wife’s evidence that the husband had physically and emotionally abused her from the date of their honeymoon continuing throughout the marriage, right up until the date of separation.
The husband testified during the arbitration that he knew that the wife would get the home if he died, even though he had paid off the mortgage himself. As a result, the arbitrator granted the wife’s application for partition and sale, concluding that the husband lacked the necessary intention to exclude the wife from the home (evidently, a pre-requisite). The husband appealed this decision, arguing that he did not in fact lack the necessary intention to exclude the wife from the home, as he had kept her out of it since their separation. The Court, instead, found that the arbitrator considered all of the relevant case law, and thus, deference was required to be paid to his decision. Further, the Court upheld the arbitrator’s decision that the husband was not entitled to more than his 50% interest in the home because the wife was essentially kicked out of the home as a result of the husband’s violent tendencies. According to the Court, “constructive trust is an equitable remedy” and “…the husband should not be able to profit by his violence”.
For a decision of an arbitrator to be overturned on appeal, it must be found that the arbitrator erred at law and that the decision made was not correct, or that the arbitrator made a palpable or overriding error in a question of mixed fact and law. The Court was unable to find that any one of the above requirements was true in this case, and thus, the arbitrator’s decision could not be overturned.
The husband’s appeal was ultimately dismissed, and he was required to pay full recovery of costs in the amount of $36,500.00.