Kroupis-Yanovski v. Yanovski – Is Final Offer Selection Allowed?

Background

The parties were married on September 29, 1990 and separated on May 15, 2009. There were two children of the marriage, aged 12 and 19.

In August 2009, the wife commenced an Application. In September 2010, the parties consented to an order referring all issues to mediation/arbitration. The Mediation/Arbitration Agreement signed by the parties provided that if the matter should proceed to arbitration, the Arbitrator would determine the procedure in consultation with the parties’ counsel.

Thereafter, the parties attended several mediation sessions which resolved the issue of parenting. However, they were unable to come to an agreement with respect to child support, spousal support and equalization of net family property.

The arbitrator proposed, and the parties agreed, to proceed by way of arbitration through final offer selection. Under this process, each party submits an offer and the decision maker selects one of the offers.

The parties delivered their respective offers in the fall of 2011. In November 2011, the Arbitrator invited the parties to consider a modified form of final offer selection by allowing him to choose different aspects of each party’s offer to fashion a result that would be different from each of their offers. They declined the Arbitrator’s proposal, and the Arbitrator ultimately chose the wife’s offer.

The husband appealed this decision.

Analysis

In large part, the husband’s appeal rested on a challenge to the use of final offer selection as a method of dispute resolution in family matters.

In its dismissal of the husband’s appeal, the court disagreed and upheld the arbitrator’s actions. Specifically, the court stated that family law arbitrations are not required to mirror the court process, and that the arbitration process was specifically chosen by the parties for its efficiency and cost.

In addition, the court reasoned that there was no evidence of unfairness, inequality of bargaining power or duress, as each party was represented by legal counsel.

Finally, the court held that the reasons provided by the arbitrator following the final selection offer process were sufficient, as the Arbitrator provided an explanation as to why he reached his decision.

Having regard to the foregoing, the court could not find that the arbitration process employed was contrary to law or that the Arbitrator committed an error of law.

The court dismissed the husband’s appeal.

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