Month: July 2024

“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:

1. 1. 1. 1. 1. A party entered into the arbitration agreement while under a legal incapacity.

1. 1. 1. 1. 2. The arbitration agreement is invalid.

1. 1. 1. 1. 3. The subject-matter of the dispute is not capable of being the subject of arbitration under Ontario law.

1. 1. 1. 1. 4. The motion was brought with undue delay.

1. 1. 1. 1. 5. The matter is a proper one for default or summary judgment.

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.”

         Magotiaux v. Stanton, 2020 ONSC 4049 (CanLII) at 1-8.

“Rule 11(3) of the Family Law Rules provides that:

On motion, the court shall give permission to a party to amend an application, answer or reply, unless the amendment would disadvantage another party in a way for which costs or an adjournment could not compensate.

In Moghini v Dashti, 2016 ONSC 2116, the court held that a motion to amend should be allowed unless:

a)     the amendment would cause an unjust process that cannot be fixed by an adjournment or costs.

b)    the amendment proposed is untenable (i.e. not properly pleaded and not prima facie meritorious in law). or

c)     the amendment is made in bad faith.

In Smith v. Smith, 2021 ONSC 1990, Chappel J. recently provided an excellent summary of the legal principles respecting amendment to pleadings in family law. I adopt her analysis and set out the applicable principles in the case at bar:

a)     The starting point is Rule 11(3) of the Family Law Rules. (Para. 15)

b)    One of the purposes of amendments is to bring all parties to disputes relating to one subject matter before the court at the same time so that disputes might be determined without the delay, inconvenience and expense of separate actions. (Para. 17)

c)    The central question on a motion to amend a pleading is whether the amendment will cause disadvantage to the opposing party that cannot be remedied through costs or an adjournment. Non-compensable prejudice may be actual or presumed. The disadvantage will be actual where the moving party could lose an opportunity or suffer an unjust burden in the litigation as a consequence of the proposed amendment that cannot be redressed through cost or an adjournment. The onus of proving actual disadvantage lies on the party opposing the amendment. Where the opposing party relies on actual disadvantage, they must set out evidence respecting such disadvantage with sufficient particularity to permit the party pursuing the amendment to respond, and to allow the court to take a hard look of the merits of the prejudice claim. (Para. 18)

d)   If the delay in seeking the amendment is so lengthy and the justification so inadequate, prejudice to the responding party will be presumed. (Para. 19)

e)   In order to avoid a proposed amendment, the non-compensable disadvantage relied upon must be casually connected with the amendment and must not flow from some other source. (Para. 20).

f)    A proposed pleading that fails to set out material facts should be refused or the court at a minimum can request more details from the moving party before determining whether to permit it. A proposed amendment that is inflammatory, a waste of time, a nuisance, frivolous or vexatious or an abuse of process should not be allowed. (Para. 21)

g)     If the request to amend is motivated by bad faith, the amendment must be refused. (Para. 23).

h)    The following general principles apply in determining whether the proposed amendment raises a reasonable claim or defence in law:

(i)   The amendment must be granted unless it is “plain and obvious” that it discloses no reasonable claim or defence in law.

(ii)   The court must assume that the facts relied on for the proposed amendment are true, unless patently ridiculous or incapable of proof, and the only question is whether the disclosed a reasonable cause of action. It is not necessary for the moving party to tender evidence to support the claims or for the court to consider whether they are able to prove the amended claim.

(iii)  General concerns regarding the strength of the factual and\or legal bases for the proposed amendment will not suffice to prevent the requested amendment.

(iv)  The court will construe the proposed amendment generously and overlook inadequacies that are merely the result of drafting deficiencies.

(v)   Proposed amendments should not be denied as being legally untenable solely on the basis they raise novel legal issues or questions of law that are not yet fully settled. (Para. 22)”

Bouzanis v. Bouzanis, 2021 ONSC 5330 (CanLII) at 22-24.