Mediation / Arbitration Agreements: Fishman v Fishman

Fishman v Fishman, 2012 ONSC 4765

Fishman v Fishman, 2012 ONSC 4765 addresses the issue of mediation/arbitration agreements and to what extent the parties to the agreement are bound.

Background

The parties were married in November 2001 and separated in June of 2005 or 2006.  The wife claimed that the husband owed $69,963 in child support arrears as of April 1, 2012.  Meanwhile, the husband claimed that the parties had entered into an arbitration/mediation agreement on February 27, 2009 and he wished to participate in the mediation/arbitration process with respect to the issue of access.  The wife would not agree to participate in the process until the husband complied with the child support order under the Interjurisdictional Support Order Act (ISOA) made in Georgia, United States.   The husband sought an order that the wife participate in the mediation/arbitration over the issue of access.

Analysis

Justice O’Connell of the Ontario Superior Court held that the proceedings before the Court related to “the need for both parties to mediate/arbitrate as they agreed to do” (paragraph 42).  This was a contractual relationship that must be upheld.

The Court reasoned that both parties received independent legal advice with respect to the mediation/arbitration agreement and neither party suggested that the agreement should be set aside.  The parties had attempted and failed to mediate the issue.  Thus, in accordance with the Agreement, the parties were required to participate in arbitration.

Justice O’Connell held that Rule 1(8) of the Family Law Rules, which would allow the court to stay the proceedings before the Court until the child support issue had been resolved, was not applicable in this case.  In so doing, the Court rejected the wife’s argument and held that the child support proceedings were entirely separate and apart from the issue before this Court.

In so deciding, the Court held that the parties were bound by the mediation/arbitration agreement and the wife could not refuse to participate based on wholly separate unresolved proceedings.  This case ought to be viewed in a restrictive sense, as Rule 1(8) of the Family Law Rules appears on its face to not permit a party to proceed in courts when they are in breach of a court order is a similar and related matter.

This decision is also the correct decision as the Ontario Court of Appeal has stated that pleadings should not be struck in child related matters.  Since the mediation/arbitration dealt with child related matters the fact that Mr. Fishman has not paid support should not be an appropriate reason to dismiss or stay the mediation/arbitration as that would be contrary to the best interests of the child.

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