Family

OCA ruling reinforces arbitrators’ role: Paul

By Tony Poland, AdvocateDaily.com Contributor

A recent Ontario Court of Appeal (OCA) decision emphasizes the unique role of an arbitrator, says Oakville mediator and arbitrator Cathryn Paul.

Paul, principal of Paul Family Law Professional Corporation, says the ruling is significant because it clarifies the difference between an arbitration and a court proceeding.

“What the Court of Appeal is doing here is really reinforcing that arbitrators can follow processes that are quite different from a court process,” she tells AdvocateDaily.com. “They’re giving a lot of leeway to arbitrators.

“It is important for arbitrators to recognize that there is a great deal of latitude. Many times people choose arbitration because they can come up with processes that are somewhat different from what the court would do.”

In reversing a Superior Court of Ontario ruling that struck down an arbitrator’s decision, the OCA found that “Although the family law of Ontario must be applied, the procedures on an arbitration are not meant to mirror those of the court.

“The appeal judge placed an obligation on the arbitrator to depart from his role as independent adjudicator and move to the role of advocate. This would compromise his independence and potentially breach his duty of impartiality,” writes Justice Mary Lou Benotto.“The appeal judge’s interpretation of s. 19 of the Arbitration Act places a new and unreasonable burden on an arbitrator in family law proceedings.

“When parties are represented, it does not fall to the arbitrator to move to the role of advocate.”

The court was told a couple married in 2003 and separated eight years later. They retained an arbitrator who mediated their property, support and parenting disputes.

However, their three children did not respond well to their parenting plan and began having academic and emotional problems, court documents show.

In July 2017, the mother sought to move them out of town so they could attend a school designed to meet their special needs, and the matter went to arbitration. Both the mother and father were represented by counsel at the sessions.

Paul says the mother brought forward at the beginning of the arbitration a request to move from Toronto to Guelph with the children, which had not formally been raised prior to the arbitration.

“At no point during the hearing did the father seek an adjournment in response to the mother having raised the issue of the move,” court was told.

The arbitrator ruled in the mother’s favour, and she moved her children out of town. However, the father appealed, and a Superior Court justice found “a denial of procedural fairness and set aside the award as it related to parenting issues.”

The Court of Appeal restored the original order in part because the arbitrator was not required “to descend into the arena and become an advocate or advance a party’s case.”

Paul, who was not involved in the case and comments generally, says when two parties are represented, “The arbitrator’s role does not extend to picking up issues that counsel didn’t argue.

“The father’s lawyer had the opportunity to raise an argument as soon as it was known that mom wanted to move,” she says. “His lawyer didn’t raise that argument, then appealed on that basis later on.

“If that was going to be an issue, there should have been an objection, and then the arbitrator could have decided to look at any other remedies.”

Paul says, “You cannot leave it to the arbitrator to find the arguments, the parties need to come in with their best foot forward and make their own.

“We don’t have an inquisitorial system here, we have an advocate system,” she explains. “We’re expecting that if people are coming to a decision-maker, they’re coming prepared.

“A decision-maker will sift through the facts, examine the law that applies, and come up with a decision.”

Before starting an arbitration, Paul requires each party to provide “a draft order or pleading that lets me know exactly what they want me to do.”

The appeal court ruling is a good reminder of the differences between the court system and arbitration, she says.

“People who are choosing arbitration are looking for something private, for something that can be more tailored to what they want,” Paul says. “This decision is a vote of confidence in allowing arbitrators to set their own processes. It is saying that just because it’s not what the court does, it doesn’t mean it’s wrong.”

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