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Posts from the ‘Arbitration’ Category

FDR: Family Dispute Resolution Week

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The theme of the week is “Let’s Talk it Out!”

Featuring events for the public and for professionals, this week features free public speakers, workshops, information centres and more.

I’m pleased to presenting today with Carolyn McAlpine on Mediation and Collaborative Law: A Better Way.  Our discussion will review:

  • —Key Elements to Collaborative Practice
  • —The Difference between Collaborative Practice and Mediation
  • —The Collaborative Team
  • —A Different Approach
  • —Reducing Hostility in Family Disputes and Separation
  • —The Nuts & Bolts of Collaborative Practice
  • — The Pace of Collaborative Practice
  • — A Focus on the Future
  • —A Focus on Interests, Not Positions
  • —Further Information about Collaborative Practice

Today’s agenda also includes:

LET’S TALK IT OUT – Northern District Library

START TIME TUESDAY, NOVEMBER 24, 2015

9:00am-9:45am

How to be great parents post-separation
Hear from two top family professionals on how to craft a parenting plan that works best for the children. Presentation by Stella Kavoukian and Laurie Stein

10:00am-10:45am

Family Violence and FDR
Information, support and resources for families experiencing violence. How to navigate separation and divorce safely— for you and your children.
Presentation by Barbra Schlifer Clinic

11:00am-11:45am

Mediation and Collaborative Law: A Better Way
Exploring the mediation and collaborative processes, emphasizing voluntariness, safety, pros vs cons when compared to the court process and how it creates long term solutions.
Presentation by Russell Alexander & Carollyn McAlpine

12:00pm-12:45pm

Public information fair: displays from agencies and organizations supporting families experiencing conflict @ Rotunda

1:00pm-1:45pm

Mental Health and FDR
Hear from a mental health professional about the resources available to separating families experiencing mental health challenges.
Presentation by Caroline Felstiner

2:00pm-2:45pm

Court Connected Mediation Services
What you need to know about Ontario’s free and subsidized family mediation services.
Presentation by mediate393

3:00pm-3:45pm

Smooth Sailing: Navigating Through a Family Law Dispute
Tips and suggestions from a seasoned family lawyer: useful resources including FLIC offices, Legal Aid Ontario, free online tools and other legal resources.
Presentation by Joel Skapinker

4:00-9:00pm

Public information fair: displays from agencies and organizations supporting families experiencing conflict @ Rotunda

We hope to see you there. To learn more about this week’s events including where to attend and how to register, click here.

Arbitrator Accuses Mom of Raising a “Spoiled Princess” – Was He Biased?

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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:

McClintock v. Karam, 2015 ONSC 1024 (CanLII)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com

Top Four Ways to Amend a Separation Agreement

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Top Four Ways to Amend a Separation Agreement

I have written before about separation agreements, and how they are a very useful – and one might say necessary – first step in the process leading to divorce between couples. However, as time passes a separation agreement drafted at the time of the formal split may no longer adequately address the needs of one or both of the parties later on. This may happen because circumstances have changed as the divorce approaches; alternatively one or both of the parties may not be following the terms of the negotiated agreement to the letter.

In such situations the separation agreement can be amended in one of several different ways. Here are those methods, and the main points about each that you need to know:

1) Change by Mutual Agreement.

At their essence, separation agreements are merely private legal contracts between two spouses; as such, they can be amended by mutual consent of the parties. Ideally, this will involve the assistance of an experienced family lawyer who can ensure that the desired changes are accurately and comprehensively included. The result will be an amending agreement or “addendum” which is dated and signed by the parties.

2) Mediation.

If the parties cannot agree on the nature or extent of the necessary changes, they may choose to have the assistance of a trained mediator to ease the amendment process along. The mediator will assist the parties to achieve negotiated, mutually-acceptable changes to the separation agreement which will better reflect their current needs.

3) Arbitration.

If consent amendments are not feasible and mediation is not likely to work, then the parties may choose to have changes implemented with the assistance of an arbitrator. The process is similar to going to court, but is less formal: This third party arbitrator will hear both sides, will help to narrow down the issues, and will assist in achieving a resolution that is binding on both spouses.

4) By a Court.

If none of these less formal solutions are appropriate or feasible in the particular circumstances, then the spouses may have no other choice than to have the matter determined by a court. Naturally, this involves the filing of relevant documents by each party, and attendance at a dedicated hearing to have the matter decided.

Needless to say, some of these methods are more expeditious and cost-efficient than others. Note that in general, courts are reticent to amend separation agreements unless there is some inherent flaw in the manner in which the agreement was reached in the first place, or where the spouses’ circumstances have change so significantly since the separation agreement was reached that it no longer fair and appropriate to let the original agreement stand. (And the concepts and tests that courts use to make this determination will be covered in a subsequent Blog.) The outcome will depend on the facts of each case.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.

Arbitration Clauses in Separation Agreements – Appeal Court Confirms Priority

Arbitration Clauses in Separation Agreements – Appeal Court Confirms Priority

Fairly recently, the Ontario Court of Appeal handed down a decision that provides important clarification on the topic of arbitration clauses contained in negotiated separation agreements.

In Grosman v. Cookson, the spouses had separated in 2001 after 34 years of marriage. They agreed to participate in mediation to settle their issues, and this resulted in a freely- negotiated and comprehensive separation agreement that stipulated that the husband would pay the wife $8,500 per month in spousal support. The agreement also provided that in the event that either of them wanted to vary that particular aspect of the agreement, the issue would be settled through the use of a mutually-appointed mediator/arbitrator, rather than through the intervention of the court. (This is known as an “exclusive arbitration” clause).

After their formal divorce in 2004, the husband paid spousal support to the wife as agreed. However, the husband (who happened to be a lawyer), announced in 2010 that he intended to retire from full partnership at his law firm, but was planning to stay on as counsel to the firm, with a reduced income. This change triggered his desire to vary the support he had been paying to the wife, so a few months later they attended mediation. Unfortunately, they were unable to come to terms.

In early 2011, the husband stopped paying support entirely, and eventually owed her arrears of more than $60,000. The wife reacted by taking several legal steps: she filed the separation agreement with the Court, and asked that its terms be enforced by way of court order. She also took steps to have the agreement enforced by the Family Responsibility Office (“FRO”). Lastly, in response to the husband’s application to vary, the wife went to court to try to have that application dismissed; she asserted that the parties’ rights and obligations to each other in connection with variation disputes were already governed by the separation agreement, specifically by the exclusive arbitration clause.

At first, the judge dismissed the wife’s summary judgment application; however, she appealed to the Court of Appeal, and was successful.

In overturning the initial ruling, the Ontario Court of Appeal found that the negotiated separation agreement governed in this case. Because it clearly and specifically included the exclusive arbitration clause, and because it envisioned the particular circumstances that took place here (i.e. that the wife would file the separation agreement with the FRO), the court had no jurisdiction to hear the variation application at all.

Nothing in the relevant provisions of the Family Law Act (which allowed for the separation agreement to be filed and enforced by the FRO) could be read as intending to oust the right of the spouses to mandate for themselves the use of mediation to solve their variation-of-support disputes. Rather, their decision to include an exclusive arbitration clause in the separation agreement should be given full legal effect, without court interference. Indeed, on policy grounds the court emphasized that such arbitration clauses were an important and worthwhile means by which spouses could mutually agree to resolve their differences without recourse to time-consuming and expensive avenue of the court process.

For the full text of the decision, see:

Grosman v. Cookson, 2012 ONCA 551  http://canlii.ca/t/fspzb

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering legal advice and assisting clients with family-related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.

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