Ontario Civil


Fact of unanticipated delay did not destroy arbitration agreement

Arbitrator made final and supplementary awards governing custody and access arrangements for child, aged two. Arbitrator first conducted mediation with parties and then proceeded to arbitrate outstanding issues at parties’ request. Arbitrator decided issues based on written submissions. Arbitrator became ill. First award was released more than seven months after submissions were filed and second award came almost six months after first. Arbitrator awarded joint custody. Mother appealed from two arbitration awards and moved to set them aside. Father moved to incorporate terms of awards into order. Mother’s appeal and motion to set aside arbitration awards dismissed. Father’s motion granted. Parties’ mediation/arbitration agreement remained in effect. Meaning of “parenting issues” in agreement encompassed all aspects of custody, and award providing for joint custody was authorized. Mother’s objections to arbitration process did not amount to error in law, unequal or unfair treatment of mother, denial of opportunity to present her case or respond to father’s case, or failure to comply with Arbitration Act, 1991 (Ont.). There was no inherent or practical unfairness in process and it was not situation where mother was “never heard,” nor was it one where her expectations about process were not met. Objection to arbitrator’s use of his own knowledge of what was beneficial for children of age of child in this case was not well founded. Fact of unanticipated delay did not destroy arbitration agreement or invalidate award. Delay in arbitration did not amount to error in law, invalidate arbitration agreement, or amount to unequal or unfair treatment of mother. Delay in release or implementation of award did not operate to her prejudice, but operated in her favour. Court declined to exercise parens patriae jurisdiction to set aside arbitration awards. Parties were to re-attend before arbitrator for determination of child support.

Rosenberg v. Minster (Feb. 5, 2014, Ont. S.C.J., Perkins J., File No. FS-13-18881) 237 A.C.W.S. (3d) 977.

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