“Having considered the circumstances, the Court is of the view that family mediation and arbitration as agreed upon by the parties and accordingly ordered by Justice Kershman should prevail over a return before the Court as proposed by the Applicant.
To be clear, the Court is very mindful of the fact that the “Dispute Resolution” clause in this matter is not a valid arbitration agreement. There is no question that it does not contain the required standard provisions set out in the Family Arbitration Regulation 134/07. However, what is clear is that the parties consented to the terms set out in the said clause which unequivocally reveal a common intent to resolve future disputes through the mediation/arbitration process. The wording makes mediation and arbitration mandatory. It states:
− “If the parties Disagree about the parenting, they shall first try to resolve the dispute…”
− “If the parties are unable to resolve the dispute through negotiation and/or mediation within 30 days… they shall arbitrate the issue…”
It is noted that both parties entered into comprehensive Minutes of Settlement being represented by counsel. These Minutes resolved all the issues and formed the basis for Justice Kershman’s final orders.
The parties’ common intent for the resolution of future disputes clearly falls within the definition of “secondary arbitration” found under section 59.7(2) of the Family Law Act:
Sec. 59.7(2): In this section, “secondary arbitration” means family arbitration that is conducted in accordance with the separation agreement, a court order or a family arbitration award that provides for the arbitration of possible future disputes relating to the ongoing management or implementation of the agreement, order or award.
The Court agrees and adopts Justice Gray’s analysis found at paragraph 58 of Lopatowski v. Lopatowski, 2018 ONSC 824:
[58] In this case, the parties had entered into a clear agreement to the use of a parenting coordinator with broad powers to assist them in parenting disputes, which was to include arbitral authority if necessary. The principle of good faith and honest contractual performance would require that the parties take the steps necessary to make that agreement operative. In a case such as this, the parties, represented by experienced counsel, would know that certain formalities could be required, including statutory formalities. At the outset, when they made their agreement, if either party was concerned about whether something in a potential parenting coordinator agreement might be an impediment, one might have expected experienced counsel to raise it, or at least see a draft parenting coordinator agreement before executing the Minutes of Settlement. Similarly, if either party thought any of the statutory formalities were in issue, one might have expected counsel to raise it.
The essence of the Court’s decision is that the Applicant is bound by the terms of Justice Kershman’s order which are based on Minutes of Settlement to take steps necessary to make the order operative. This obligation is for him as well as the Respondent to enter into a formal and secondary arbitration agreement with the required standard provisions set out in the Family Arbitration Regulation 134/07. The Court must have the power to require parties subject of a court order to live up to their obligations.
The Court’s finding as to the parties’ intent is reinforced by the fact that they both participated in two mediation sessions as set out in the “Dispute Resolution” clause. The Applicant then refused to participate in the arbitration phase. In the absence of a valid “secondary arbitration” agreement, he was not obliged to participate. However, this does not relieve him to follow through with a valid agreement.
The Applicant’s obligation to follow through with “secondary arbitration” and enter into a valid agreement to that effect per Justice Kershman’s final orders, finds support in the Ontario Court of Appeal’s decisions in Geropoulos v. Geropoulos, 1982 CanLii 2020 and Owers v. Owers, 2009 ONC 296, which speak to the validity of family court orders that contravene formal statutory requirements. The Court notes the following analysis in Geropoulos:
In my opinion, the section plainly is not aimed at or intended to apply to authorized settlement agreements like the present, made with legal advice during the pendency of court proceedings which, to be effective, require the intervention of the court. Such agreements derive their effect from an act of the court; their authenticity is assured by the court’s supervision and control over them… no purpose is to be served in compelling agreements of this kind to comply with formalities of s. 54(1) and, if not, permitting parties to withdraw at will from compromises properly entered into by their legal representatives before trial of their action or … compromises concluded even during the trial of an action…”