Arbitrator Accuses Mom of Raising a “Spoiled Princess” – Was He Biased?
In the recent case of McClintock v. Karam, the court began its judgment this way:
Mediation/arbitration is a relatively recent phenomenon. Used in the right circumstances, and with proper safeguards, it can be a useful means of dispute resolution. However, care must be taken to ensure fairness, and to ensure that a reasonable apprehension of bias does not arise.
Yet after reviewing closely the involvement of the arbitrator appointed by the couple, the court found that it was precisely this fairness and absence of bias that was lacking – to the point that the arbitrator had to be replaced with a different one entirely.
The parents had been married for about 5 years, but had a 10-year old daughter together. About two years after their split, they entered into a separation agreement that included a joint custody/parenting plan.
Things went smoothly until 2012, when the father remarried. Shortly after, the mother announced that she was relocating from Toronto to Burlington, which move the father opposed.
Ultimately, the mother did move, and this necessitated changes to the agreed custody/parenting plan. Negotiations failed and this triggered a clause in their separation agreement, calling for the appointment of a mediator/arbitrator to help them settle their dispute.
This is exactly what they did. However, the court picks up the story:
The relationship between the parties since the appointment of the mediator/arbitrator has been rocky, to say the least. Each party has made allegations against the other. Most significantly, the [father] has alleged that the [mother] has engaged in a campaign to alienate [the daughter] from him. Among other things, it has been alleged that the [mother] has encouraged [the daughter] to not want to see her father. The [father] has alleged that the [mother] has arranged activities to occur during times when [the daughter] would be scheduled to be with her father. When the [father] insists on visits with [the daughter], he is then made out to be the “bad guy”.
Several mediation sessions followed, but those did not go well, either. In fact, their nature and tenor became the subject of a later court’s scrutiny, when it was asked to finally resolve the issues between the parties, and to entertain the mother’s add-on application for sole custody of the daughter, with reasonable access to the father.
In reviewing the nature and tenor of the arbitrator’s involvement in trying to help resolve the parents’ dispute, the court examined the correspondence and emails between them. It concluded that the male arbitrator had “come to have considerable sympathy with the [father’s] position,” as evidenced by disparaging comments aimed at the mother.
For example, in arbitrator’s words the mother had “knowingly, unknowingly, inadvertently, intentionally” undermined the relationship between the father and daughter, and had raised the daughter to be “a spoiled princess”.
(In fact, the arbitrator was apparently so swayed, that after one particularly acrimonious session with the parents, he wrote to advise he would be deciding the question of whether the daughter should go live with the father exclusively, with no access to the mother until she can behave in a way that supports the father/daughter relationship. The only problem was that this was not one of the questions the parents had asked him to resolve; in purporting to take such initiative the arbitrator was greatly overstepping his role and authority).
All of this hinted at the arbitrator having a bias against the mother. But the most egregious example arose in connection with hearing scheduling; the court described it this way:
The subsequent conduct of the mediator/arbitrator serves only to heighten the concern [about fairness and lack of bias]. He gave notice of a single day of arbitration. The notice was quite short. When counsel for the [mother] said he would be out of the country, the arbitrator refused to change the date, even though counsel was only suggesting a delay of two months. [The daughter] had been residing with her mother for nine years, and it is inconceivable that a delay of two months was unreasonable or could not have been accommodated. However, the mediator/arbitrator insisted on proceeding on the date he had fixed, even though the applicant would be without counsel and the mediator/arbitrator himself conceded that there was no dire emergency.
During the correspondence about the arbitration process, [the arbitrator] continued to make statements suggesting he had made up his mind, including “Ultimately though, should this matter return to court and in the absence of change with regard to the behaviour of [the mother], you must know what intervention I would be supporting if called to court.”
Looking at these circumstances, the court had to examine whether they a “reasonable apprehension of bias” on the arbitrator’s part, based on the customary legal test:
Thus, the issue before me is whether an informed person, viewing the matter realistically and practically, and having thought the matter through, would think that it is more likely than not that [the arbitrator], whether consciously or unconsciously, would not decide fairly. Regrettably, an informed person would think it is more likely than not that [the arbitrator] would not decide fairly. In coming to his or her conclusion, the informed person would take into account the nature of the tribunal.
Here, several of the arbitrator’s comments were clearly critical of the mother in a tone and context that suggested that he had already made up his mind as to the outcome. This was particularly troubling in light of the fact that the parents’ present dispute involved a potential and fundamental change in the child’s residence.
In the end, and having found that the arbitrator had not acted fairly, the court ordered his removal and recommended that any future arbitration should be conducted by an arbitrator with legal training, preferably one experienced in family law.
For the full text of the decision, see:
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