Following a case conference, parties to a family law proceeding (Michelon v. Ryder) reached a comprehensive agreement on a final order. The Court noted that the agreement was an excellent result for all involved. However, the Court questioned its jurisdiction to include a term in the order requiring the parties to submit to secondary arbitration.
The Paragraph in question read as follows:
The parties shall appoint Jared Norton as their Parenting Coordinator in accordance with section 59.7 of the Family Law Act and the Arbitration Act for a period of 2 years. Each party shall pay for his or her intake session with the Parenting Coordinator. Each joint session with the Parenting Coordinator will be a shared expense. The Parenting Coordinator shall facilitate communication of the parties and have the authority to resolve by mediation or arbitration only the enumerated issues set out on paragraph 45 herein in accordance with a “secondary arbitration” as defined in section 59.7 of the Family Law Act. If a dispute arises that cannot be resolved with the agreement of the parties and where the Parenting Coordinator is asked to render an arbitral award, the Parenting Coordinator will determine costs for each such award. The parties shall enter into the Parenting Coordinator’s standard agreement within 30 days. Neither party objects to the parenting Coordinator acting as arbitrator based on section 35 of the Arbitration Act.
The Court noted that it was bound by a decision of the Ontario Court of Appeal [M.(C.A.) v. M.(D.)] in which the Court concluded that a court has “no authority” to delegate its power to determine custody or access to a third party. This includes a lack of jurisdiction to order parents to jointly retain a parent co-ordinator with appropriate expertise to facilitate the parties’ communication, assist in decision-making, and arbitrate if necessary.
Further, the Court noted that:
[T]he FLA does not contain a grant of the right to delegate a court’s jurisdiction to third parties. In fact, the definition section for Part IV of the FLA (Domestic Agreements) found at par. 51, makes reference to the terms “family law arbitration” and “family arbitration agreement”. But it contains no reference to a family arbitration order.
Section 3 of the FLA allows the court to “…appoint a person whom the parties have selected to mediate any matter that the court specifies…”, but that grant of authority is far different than the jurisdiction to appoint an arbitrator.
The Court emphasized that it’s clear that the Ontario statutory framework for the use of arbitration to settle family law disputes requires consent, as expressed in an arbitration agreement, in order to commence the process. That agreement can reference secondary arbitration to settle disputes that may arise later, however, it must be undertaken voluntarily. Court orders, even those on consent, do not allow a shortcut to arbitration.
The Court summarized its findings by stating that nothing prevented the parties in this case from signing the arbitration agreement contemplated in the draft order. They had already agreed to do so. They simply could not ask the Court to order them to do so.
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