Arbitrator did not have jurisdiction to consider whether mother was in contempt

Ontario civil | Arbitration

JURISDICTION

Arbitrator did not have jurisdiction to consider whether mother was in contempt

Parties were married for six years and had two children. Parties were awarded joint custody, with mother having primary residence. There had been substantial conflict between parties and they agreed to submit issues to arbitration. Arbitrator addressed issues of contempt, mobility, parenting plans and changes and child support. Arbitrator found that mother was in contempt of court and ordered mother to pay father $7,000. Arbitrator’s award became court order. Father alleged that mother failed to comply with court order by failing to pay him $7,000, failing to consult with him regarding major decisions, failing to provide access, failing to retain parenting coordinator, failing to continue children in counselling and failing to attend counselling herself. Father brought motion for contempt. Motion dismissed. Arbitrator did not have jurisdiction to consider whether mother was in contempt. Rules of Civil Procedure and Family Law Rules preserved exclusive jurisdiction of Superior Court over contempt proceedings and orders in relation to enforcement of Superior Court orders. There was nothing in Arbitration Act, 1991 that would confer jurisdiction over contempt not in face of court to arbitrator. Superior Court enforced award of arbitrator but arbitrator did not have power to enforce Superior Court orders. Arbitrator could be called on to resolve dispute as to whether party had complied with court order but that was one step removed from contempt of court proceeding. Arbitrator did not have jurisdiction to decide that mother’s conduct amounted to contempt of court or to impose penalties for contempt. Process followed for obtaining order did not meet procedural requirements for quasi-criminal finding of contempt. Penalty constituted payment order and was not enforceable by contempt motion. Court order did set deadline for payment and mother provided evidence that she paid full amount owing. Court order provided that father was permitted to consult with mother involving major decisions and he provided no evidence that this had not occurred. It could not be concluded, beyond reasonable doubt that mother deliberately cancelled access and violated court order. It could not be concluded, beyond reasonable doubt, that mother deliberately disobeyed court order respecting retaining parenting coordinator. As parenting coordinator was only recently retained, children’s counsellor had not been identified and mother could not be in contravention of that part of court order. Mother had counselling and was not in contempt of court order.
Woronowicz v. Conti (Aug. 21, 2015, Ont. S.C.J., R.E. Charney J., File No. Barrie FC-09-1006-00) 258 A.C.W.S. (3d) 722.

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