“The Respondent submits that the statutory threshold for converting the Final Arbitration Awards into Court Orders in this case has been met.
The Respondent relies on the Arbitration Act, 1991 S.O. 1991, C.17, which confirms the binding nature of Final Arbitration Awards. Section 37 of the Arbitration Act provides that, “An award binds the parties, unless it is set aside or varied under section 45 or 46… .”
Section 59.8(2) of the Family Law Act, R.S.O. 1990, c. F.3 (the “Family Law Act”), and Rule 32.1(2) of the Family Law Rules, R.S.O. 1990, c. C. 43, provides that a party entitled to enforcement of an arbitration award shall make a motion in an existing proceeding rather than an application.
Section 59.8(4) of the Family Law Act further governs enforcement of family arbitrations awards and provides that:
(4) If the family arbitration award satisfies the condition set out in subsection 59.6(1), the court shall make an order in the same terms as the award, unless:
(a) the period for commencing an appeal or an application to set the award aside has not yet elapsed;
(b) there is a pending appeal, application to set the award aside or application for a declaration of invalidity; or
(c) the award has been set aside or the arbitration is the subject of a declaration of invalidity.
Section 59.8(5) of the Family Law Act provides that if clause (4)(a) or (b) above applies, the Court may make an order in the same terms as the award; or order, on such conditions as are just, that the enforcement of the award is stayed until the period has elapsed without an appeal or application being commenced or until the pending proceeding [i.e. an appeal or application to set aside or for a declaration of invalidity] is finally disposed of.
Paragraph 15.1 of the parties’ Arbitration Agreement with Mr. Grant confirms that the Final Arbitration Awards were intended to bind the parties within this statutory context:
Subject to the appeal remedies and rights to apply to set aside Mr. Grant’s Award under sections 45 and 46, respectively, of the Arbitration Act and subject to the other applicable provisions of the Arbitration Act, and the Family Law Act, Mr. Grant’s awards are binding on the parties. Any temporary, interim or final award may be incorporated into a consent order of the Ontario Superior Court of Justice. Either party may apply for the enforcement of any award under section 59.8(5) (a) of the Family Law Act.
The Respondent relies on this Court’s decision in DeCraemer v. Decraemer, 2012 ONSC 1182 (“DeCraemer”), in which the parties entered into minutes of settlement which formed the basis of a consent arbitration award. In that case, both parties sought enforcement of the minutes of settlement as a final settlement of all issues. Justice Bielby found that the parties’ agreement met the criteria set out in s. 59.6 of the Arbitration Act and was therefore enforceable. Justice Bielby stated the following (at paras. 34-35):
34 The Family Law Act, sections 59.6 and 59.8 allow for the enforcement of arbitration awards by the court. I find that the agreement met the criteria set out therein and that the agreement is enforceable. Accordingly, I can make an order in accordance with the award. An action remains outstanding and the matter was properly brought before the court by way of a motion.
35 If an order is made incorporating an arbitration award, it is subject to all the powers of the court: Thibodeau v. Thibodeau, 2009 CarswellOnt 2638 (Ont. S.C.J.). The court has the authority to make orders on the same terms as the award: Gray v. Brusby, 2008 CarswellOnt 4045 (Ont. S.C.J.).
In Thibodeau v. Thibodeau, 2011 ONCA 110, the Court of Appeal described the operation of s. 59.8 of the Family Law Act as a mechanism for enforcing arbitration awards, not an opportunity to update or vary such awards (at para. 72):
Section 59.8 is essentially an enforcement proceeding designed to turn a family arbitration award into a court order with the enforceability that goes with such an order. Respectfully, it is not an opportunity for the Superior Court judge hearing the application to tweak or alter the arbitration award to conform to what the judge may think the arbitrator should have done. Nor is it an opportunity to “correct” the award retroactively, the better to protect a payee spouse in the event of a subsequently occurring bankruptcy at the expense of other creditors.
The Respondent submits that the conditions in the Family Law Act and the Arbitration Act for the enforceability of the Final Arbitration Awards have been met in this case.
I agree.
The 2016 Arbitration Agreement, under which the Final Arbitration Awards were made, was executed by both parties, as well as Mr. Grant.
Each of the parties was represented by experienced senior legal counsel at the time of the Arbitration Agreement. The parties’ counsel signed Certificates of Independent Legal Advice.
Both parties also were represented when the terms of the Final Arbitration Awards were agreed upon.
Mr. Grant issued the Final Arbitration Award in writing and delivered the issued awards to the parties’ respective counsel.
The Awards were made on consent, and there has been no application to set the Awards aside or for a declaration of invalidity.
Justice Nelson dealt with a similar situation in A.S. v. A.S, 2005 CanLII 20817 (Ont. S.C.J), involving a request for a court order incorporating Ontario arbitration awards in circumstances where the child in question was no longer habitually resident in Ontario. Nelson J. held (at para. 13):
[13] I raised the question with counsel of whether jurisdiction could be lost by the arbitrators, notwithstanding the jurisdiction provisions of the separation agreements, as a result of the child no longer being habitually resident in Ontario. Counsel for the mother took the [sic] position that the jurisdiction of the arbitrators was lost due to this fact. It is my view however, that simply because [sic] an Israeli court has made an order in relation to this matter does not mean the jurisdiction of the arbitrators is lost. Under the present circumstances involving an access dispute, which was well within the contemplation of the parties when they signed the agreements, the arbitrators still have jurisdiction. On this motion I am simply deciding whether to incorporate the terms of an arbitration award into an order pursuant to the Arbitration Act. The contracts between the parties with respect to the issues of access, custody, and jurisdiction are valid and subsisting contracts. …
On Appeal, the Court of Appeal affirmed Justice Nelson’s conclusion that where the statutory conditions have been satisfied, it is justified for the Court to enforce an arbitration award as a Court Order (Shoval v. Shoval, 2006 CanLII 60347 (Ont. C.A.).
For similar reasons, I find that the Final Arbitration Awards in this case are enforceable as Court Orders.”