Best interests of child trump fairness of hearing: OCA

By Staff

A recent Court of Appeal judgment is a must-read for counsel who engage in family law arbitrations, says Toronto family lawyer Gary Joseph.

The unanimous three-judge panel hearing the case reinstated an arbitration award granting a mother sole custody of a couple’s children and allowing her to relocate. In the process, the province’s top court overturned a lower court’s order for a fresh arbitration after the lower court found the father in the case was treated unfairly.

“It’s a very important decision which offers commentary on a number of critical issues regarding arbitration in the context of family law,” says Joseph, managing partner of MacDonald & Partners LLP. “It says that the best interests of the child will trump concerns about the fairness of a hearing, and also seems to suggest that a party can waive the right to a fair hearing by not raising an objection immediately.”

He tells that the appeal court decision emphasizes the considerable deference judges owe to arbitral awards. In addition, Joseph says the decision carries extra weight in the family law bar due to the fact that its lead author is Justice Mary Lou Benotto, a former family law practitioner who has become one the court’s leading voices on family law matters.

“The appeal court is telling us that they consider arbitration an important part of how family law works today — they want to encourage parties to engage in a process that can be tailored to clients and is typically less expensive than litigation,” Joseph says.

According to the decision, the couple in the case had three children together before splitting in 2011 after eight years of marriage. They reached a separation agreement that set the children’s primary residence with their mother but included significant parenting time for the father, who also paid child support.

However, when the agreement came up for review in 2015, the parties proceeded to arbitration after failing to agree to new terms at mediation.

The arbitrator ultimately ruled in the mother’s favour, granting her sole custody of the three children, and allowing her to relocate with them from Toronto to Guelph, even though she only notified the father of her intention on the eve of the arbitration.

A Superior Court judge ordered a fresh hearing before a new arbitrator on the parenting issues for failure to comply with s. 19(2) of the Arbitration Act, finding that the late notice resulted in fundamental procedural unfairness, causing a denial of natural justice to the father.

Although the judge noted the father “could have, and should have” sought an adjournment after the mobility was raised at a late stage, she added that it was also “incumbent on the arbitrator to enquire about the issue to ensure proper notice” had been given.

On appeal, however, the panel concluded the judge erred in finding a breach of s. 19(2), noting that her interpretation of the Act would interfere with an arbitrator’s independence and impartiality.

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

The judge also erred by relying exclusively on the short notice given to the father in setting aside the arbitral award, without any regard to the children’s best interests, Benotto added.

“The procedural rights of a parent — which were not pursued at the time of their purported breach, despite ample opportunity to do so — cannot be invoked long after the hearing has been completed in order to override the welfare of children in crisis,” she wrote.

In any case, the father “acquiesced in the late notice,” the appeal panel found. “Instead of raising the issue and seeking an adjournment, he proceeded with the hearing, submitting that the children should stay at their school and only raising an objection when the result was not to his liking.”

Joseph says that the family law bar must pay attention as the appeal court ruling is not in step with common wisdom among the family law bar regarding s. 19 of the Arbitration Act.

“Anyone who engages in arbitration is well aware of the absolute necessity of a fair hearing, but Justice Benotto doesn’t place the same kind of weight on that provision that the practising bar typically does,” he says. “She recognizes the need for fairness but says that the best interests of the child trump that, and introduces the concept of a waiver of the right to a fair hearing when an objection is not raised immediately.

“There are all sorts of important guidance in this case for counsel involved in the arbitration and appeal process, and family law counsel need to take notice of it,” Joseph adds.

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