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This case reminds us of the importance of fully understanding the scope of an agreement that parties have entered into.

The parties began cohabiting in October 2007 and separated in January 2010. They have one child together who was 12 at the time of the hearing.

The child was entering high school, and the parties disagreed on which school he should attend.

As a part of their Partial Separation Agreement dated in 2010, the parties agreed to have Mr. Phil Epstein act as an arbitrator pursuant to a Mediation-Arbitration Agreement. Mr. Epstein subsequently issued a Procedural Award which determined that he had jurisdiction to decide on issues of the child’s school. The parties also signed a new Mediation Arbitration Agreement with Mr. Epstein that stipulated that Mr. Epstein may deliver notices, awards, or other communications to the parties via ordinary mail, fax, or email. Mr. Epstein then issued A Multidirectional Award which stated in part that “"If the parties are unable to agree on major decisions relating the child's education, Mr. Epstein will summarily resolve the issue.".

The parties reached out to Mr. Epstein on the issue of choice of high school for the child. Mr. Epstein then emailed the parties the following:

“… [Father] agrees that [the child] should go to a better school and his first choice would be Upper Canada College. If [the child] is not accepted at Upper Canada College then Sterling Hall, York School or Crescent would be other suitable choices. Accordingly, [Mother] should prepare the necessary applications. I am not sure how the schools are going to process applications in these difficult times, but I leave it to the two of you to figure that out.

Thank you for co-operating on this important issue.”

The father argued that Mr. Epstein’s email did not constitute a binding award, while the mother argued that it did.


Is Mr. Epstein’s email to the parties an enforceable award?


The parties have clearly retained Mr. Epstein to make a “choice of schools” decision where they were unable to agree. Whereas the father argued that Mr. Epstein’s email lacked clarity, certainty, and specificity, the court disagreed in that Mr. Epstein’s involvement was mutually intended by both parties and have turned to him for a decision regarding issues that the parties disagreed on.

The court further opined that Mr. Epstein’s decision was clear. The email clearly listed the four choice of schools and directed the mother to prepare the necessary applications. While the father argued that the line “I leave it to the two of you to figure that out” meant that the parties should continue discussing the issue of choice of school, the court opined that it was rather a comment about what the parents should do regarding the school applications given the ongoing COVID-19 pandemic and any affect that may have on the application process.

This case reminds us of the importance of carefully reviewing and understanding the agreement that an individual is entering. There may be issues in the future that were not readily apparent at the time of entering the agreement. It is important to speak to a family lawyer to fully understand how the agreement affects one’s circumstances to be able to make an informed decision that one will not regret.

For more information, please call us at Feldstein Family Law Group P.C. or contact our firm online.