“The single issue is whether the applicant may bring a motion to the court or whether she must follow the process in the parties Interim Parenting Agreement dated September 23, 2019.
That provision provides as follows:
6.1 If Jennifer and Keith disagree about any parenting issue or child support, they will first try to resolve the dispute through negotiation, either between themselves or with their respective counsel, on the following terms:
(a) The parties will jointly retain Julie Guindon to act as a mediator/arbitrator/Parenting Coordinator. The parties shall share the up-front costs of the process equally.
(b) Julie Guindon shall retain the right to apportion costs between the parties during any of these processes.
(c) Julie Guindon’s decision shall be binding on the parties.
(d) If Julie Guindon must conduct an arbitration, the parties waive section 35 of the Arbitration Act and will constitute a secondary arbitration under the Arbitration Act and the Family Law Act.
The respondent seeks a stay under section 7 of the Arbitration Act, 1991, S.O. 1991, c. 17:
7 (1) If a party to an arbitration agreement commences a proceeding in respect of a matter to be submitted to arbitration under the agreement, the court in which the proceeding is commenced shall, on the motion of another party to the arbitration agreement, stay the proceeding. 1991, c. 17, s. 7 (1).
Exceptions
(2) However, the court may refuse to stay the proceeding in any of the following cases:
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- A party entered into the arbitration agreement while under a legal incapacity.
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- The arbitration agreement is invalid.
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- The subject-matter of the dispute is not capable of being the subject of arbitration under Ontario law.
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- The motion was brought with undue delay.
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- The matter is a proper one for default or summary judgment.
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The respondent maintains the Interim Parenting Agreement is a binding arbitration agreement. The parties entered into it with independent legal advice provided by each of their counsel. He says the agreement makes the agreed upon alternate dispute resolution process mandatory and shows an intention to execute a formal secondary arbitration agreement in future when necessary.
The applicant maintains the provision does not bar her from proceeding to court. She relies on provisions of the Arbitration Act and the decision in Horowitz v. Nightingale, 2017 ONSC 2168 (CanLii).
For reasons that follow I conclude that the Interim Parenting Agreement is not a bar to the applicant proceeding in court and that the stay motion should be dismissed. Parties need to ensure that their agreement complies with the necessary formalities required by statute and regulation. Where the legislator has mandated express terms for family arbitration agreements the court may not imply them.
The situation might be different if the parties had expressly undertaken in their agreement to execute an arbitration agreement that complies with the governing Act and Regulation. In that situation, the court might order the party in breach to comply with their undertaking. The Interim Parenting Agreement does not include such an express provision.
Prudence dictates that family litigants wishing to provide for a potential future arbitration should append a detailed family arbitration agreement containing the mandatory terms to their settlement document and should agree to complete and execute the agreement in the form attached, at the appropriate time.”