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CUSTODY AND ACCESS - Mediation and arbitration

Friday, September 06, 2019 @ 6:31 AM  

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Appeal by the mother from a decision setting aside an arbitration award that awarded her sole custody and allowed her to move the children from Toronto to Guelph to attend a school adapted to their special needs. After the mother moved and enrolled the children in the school, the father appealed the arbitrator’s decision. The appeal judge overturned the arbitral award because the father did not receive adequate notice of the mother’s intent to move. Although the parties had agreed to joint custody after separation in 2011, the children did not do well under the parenting plan. The children developed serious academic difficulties and were acting out. The mother then located an appropriate school for the children in Guelph. The most significant issue before the arbitrator was the educational plan for the children. At no point did the father or his counsel object to the mobility issue being addressed by the arbitrator. The appeal judge found that the arbitrator violated s. 19 of the Arbitration Act because it was incumbent on him to inquire about the notice as to mobility and to ensure proper notice had been given, and the lack of notice of the mobility issue caused a fundamental procedural unfairness.

HELD: Appeal allowed. The arbitrator’s award was re-instated. The appeal judge erred in law by finding a violation of s. 19. The proceedings were fair. The father, who was represented throughout, knew of the mobility issue prior to the start of the hearing and neither requested an adjournment nor objected to the issue being addressed. The father acquiesced in the notice with respect to mobility. He proceeded with the hearing, submitting that the children should stay at their school and only raised an objection when the result was not to his liking. He did not seek a stay of the mobility order but raised the issue for the first time on appeal. The appeal judge ignored the best interests of the children. The situation was urgent, and the arbitrator had a duty to consider the children’s welfare as paramount. The appeal judge’s interpretation of s. 19 of the Arbitration Act established a new duty for arbitrators that would fundamentally change the arbitration process and undermine arbitral independence and impartiality. 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.

Petersoo v. Petersoo, [2019] O.J. No. 3868, Ontario Court of Appeal, M.H. Tulloch, M.L. Benotto and G. Huscroft JJ.A., July 23, 2019. Digest No. TLD-September22019010