“It is important to understand the overall role of this Court in dealing with motions for leave to appeal arbitration awards. The Supreme Court of Canada has stated that a narrow scope of appellate review in family law matters, in general, promotes much needed finality: Ojo v. Mason, 2013 ONSC 1240 (Ont. S.C.J.), at paras. 19-24; Van de Perre v. Edwards, 2001 SCC 60 (S.C.C.), at paras. 8-16; and Veneris v. Koh Veneris 2018 ONSC 4164, 2018 CarswellOnt 11297Ontario.
The Court of Appeal specifically applied this idea to motions for leave to appeal arbitration awards in the Superior Court of Justice. The Court of Appeal in Petersoo v. Petersoo, 2019 ONCA 624 (Ont. C.A.), at paras. 35-37, cited a line of jurisprudence indicating that:
[35] Mediation/arbitration is an important method by which family law litigants resolve their disputes. Indeed, the courts encourage parties to attempt to resolve issues cooperatively and to determine the resolution method most appropriate to their family. The mediation/arbitration process can be more informal, efficient, faster and less adversarial than judicial proceedings. These benefits are important with respect to parenting issues, which require a consideration of the best interests of children. The decision of an arbitrator, particularly in child related matters, is therefore entitled to significant deference by the courts: see Patton-Casse v. Casse, 2012 ONCA 709, 298 O.A.C. 111, at pars. 9, 11.
[36] The essence of arbitration is that the parties decide on the best procedure for their family. Although the family law of Ontario must be applied, the procedures on an arbitration are not meant to mirror those of the court…
[37] Here the parties decided that an appeal would only be based on a question of law. As this court stated in Alectra Utilities Commission v. Solar Power Network Inc., 2019 ONCA 254, 145 O.R. (3d) 481, at para. 20:
So, the starting point in exercising the court’s role under the Arbitration Act, 1991 is the recognition that appeals from private arbitration decisions are neither required nor routine and the courts perform a gatekeeping role in applications for leave to appeal family law awards. Courts are not to interfere lightly in the results of private arbitrators, particularly in matters such as this where the parties “bargained for finality” using narrow appeal rights. [emphasis added]
What does the court mean by a gatekeeping role? Does it mean that there is discretion not to grant leave, even if the court finds that the test set out in section 45 of the Arbitration Act is met? I find that it does, or at the very least, it provides the court with a broad range of discretion in determining if the matter justifies an appeal under section 45 of the Act. In determining whether to grant leave to appeal an arbitration award, this Court must factor in the gatekeeping role played by the court, emphasized by the requirement to obtain leave of the court in the Arbitration Act.”