Child Custody and Access and Family Law Arbitration
Rosenberg v. Minster 2014 ONSC 845
This case deals with the extent to which a court can or should intervene in a family law arbitration where the arbitrator has determined custody of and access to a young child.
In this case, the arbitrator did not hear evidence, but instead decided the issues based on written submissions. The arbitrator did not release a final award until over seven months after the written submissions were completed, which was outside the time limit provided for by the arbitration agreement. The arbitrator later issued another award that revised minor scheduling issues released in the first award.
The mother appealed and moved to set aside both awards. She claimed that
- the delay in completion of the arbitration invalidated his awards and the parties’ agreement to arbitrate,
- the arbitrator's procedure was unfair to the mother, and
- the awards were not in the child’s best interests.
The father moved to incorporate the terms of the awards into an Order. He submitted that the mother’s appeal and motion to set aside were out of time, because she waited four months after the first award was delivered to issue her application to set it aside and almost six months to serve her appeal. However, the mother's motion and appeal were not barred because there was a matter of substance still to be settled in the form of the award and it was therefore correct to count the time only from the date of the supplementary award.
The mother's appeal and motion were dismissed and the father's motion was granted.
The parties both gave the arbitrator their written submissions on August 1, 2012. Accordingly, the 60 day period set out in the arbitration agreement for completion of the award expired on September 30, 2012. However, the arbitrator inadvertently left the parties' written submissions at his country home and asked the parties at the end of November to send him copies of their submissions (at his expense). The parties decided to wait until the arbitrator went back to his country home in December, knowing that work on the award would not resume until then. The parties were not concerned about delay and extended the time for the arbitrator to make his award on consent.
The judge found that while there was, in fact, a significant delay in the proceedings, the delay in the arbitration did not amount to an error in law, did not invalidate or end the arbitration agreement, and did not amount to unequal or unfair treatment of the mother. The mother did not have any grounds to complain about the arbitrator’s delay, as she acquiesced to it.
The judge found that the procedure adopted by the arbitrator was not unfair to the mother. There were two mediation sessions with the arbitrator, where the parties were both represented by counsel, during which they both had the opportunity to acquaint the arbitrator with all the facts. The parties also had a draft comprehensive parenting plan prepared by the arbitrator after each mediation session, on which they commented extensively each time. They each provided the arbitrator with detailed written submissions on all issues. The arbitrator had ample information on which to base his decisions and make the awards he made. If he did not, that was the fault of the party who failed to supply it. Apart from delay, there was no ground for the mother’s objection as to how the arbitrator proceeded.
The mother submitted that the delay was a crucial factor in evaluating the child’s best interests, which she said changed in the 11 months since the first award and the 18 months since the parties’ submissions were filed with the arbitrator. She further argued that the court ought not to allow for the arbitrator’s 'crystal ball gazing' up to age 5. However, the draft Order proposed by the arbitrator specifically contemplated that the parenting time under the award may be changed at any time by written consent of the parties or by court Order. The arbitrator’s approach was not an undue stretch in predicting what was sensible for the foreseeable future.