Siegel's Family Court Calendar

“An arbitral tribunal may rule on its own jurisdiction to conduct the arbitration: s. 17(1) of the Arbitration Act. A party may apply under s. 17(8) of the Arbitration Act for review by the court to decide the matter.

A hearing to decide the matter of the arbitral tribunal’s jurisdiction is a hearing de novo: Hornepayne First Nation v. Ontario First Nations (2008) Ltd., 2021 ONSC 5534, at paras. 2-6, citing Russian Federation v. Luxtona, 2021 ONSC 4604 (Div. Ct.), at para. 22.

The standard to be applied on a question of the arbitrator’s jurisdiction is correctness: Smyth v. Perth & Smith Falls District Hospital, 2008 ONCA 794, at para. 17.”

The Joseph Lebovic Charitable Foundation et al. v. Jewish Foundation of Greater Toronto, 2024 ONSC 4400 (CanLII) at 17-19

“Section 16 of the Divorce Act governs the imposition of parenting orders and the relocation of children.  Sections 16(1) and 16(2) of the Divorce Act provide the general framework for the imposition of parenting orders:

Best interests of child

16 (1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.

Primary consideration

(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

Section 16(3) lists non-exhaustive factors that a court can consider when making a parenting order:

Factors to be considered

(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including

(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

(b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;

(d) the history of care of the child;

(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

(g) any plans for the child’s care;

(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;

(j) any family violence and its impact on, among other things,

(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and

(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

Section 16(4) of the Divorce Act discusses the impact that family violence has upon such orders:

Factors relating to family violence

(4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:

(a) the nature, seriousness and frequency of the family violence and when it occurred;

(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;

(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;

(d) the physical, emotional and psychological harm or risk of harm to the child;

(e) any compromise to the safety of the child or other family member;

(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;

(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and

(h) any other relevant factor.

Section 16(5) of the Divorce Act describes the proper use of past conduct in making any determination:

Past conduct

(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.

Section 16(6) of the Divorce Act describes the principle regarding maximum contact with each parent:

Parenting time consistent with best interests of child

(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.

With respect to relocation, section 16.9 of the Divorce Act governs the form of notices and other such procedural issues.  Sections 16.92(1) and 16.92(2) of the Divorce Act outlines the non-exhaustive factors to be considered by the court in making such a relocation decision, and factors that may not be considered:

Best interests of child — additional factors to be considered

16.92 (1) In deciding whether to authorize a relocation of a child of the marriage, the court shall, in order to determine what is in the best interests of the child, take into consideration, in addition to the factors referred to in section 16,

(a) the reasons for the relocation;

(b) the impact of the relocation on the child;

(c) the amount of time spent with the child by each person who has parenting time or a pending application for a parenting order and the level of involvement in the child’s life of each of those persons;

(d) whether the person who intends to relocate the child complied with any applicable notice requirement under section 16.9, provincial family law legislation, an order, arbitral award, or agreement;

(e) the existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside;

(f) the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of parenting time, decision-making responsibility or contact, taking into consideration, among other things, the location of the new place of residence and the travel expenses; and

(g) whether each person who has parenting time or decision-making responsibility or a pending application for a parenting order has complied with their obligations under family law legislation, an order, arbitral award, or agreement, and the likelihood of future compliance.

Factor not to be considered

(2) In deciding whether to authorize a relocation of the child, the court shall not consider, if the child’s relocation was prohibited, whether the person who intends to relocate the child would relocate without the child or not relocate.

Finally, section 16.92(3) describes the burden of proof in relocation cases:

Burden of proof — person who intends to relocate child

16.93 (1) If the parties to the proceeding substantially comply with an order, arbitral award, or agreement that provides that a child of the marriage spend substantially equal time in the care of each party, the party who intends to relocate the child has the burden of proving that the relocation would be in the best interests of the child.

Burden of proof — person who objects to relocation

(2) If the parties to the proceeding substantially comply with an order, arbitral award or agreement that provides that a child of the marriage spends the vast majority of their time in the care of the party who intends to relocate the child, the party opposing the relocation has the burden of proving that the relocation would not be in the best interests of the child.

Burden of proof — other cases

(3) In any other case, the parties to the proceeding have the burden of proving whether the relocation is in the best interests of the child.

Application to This Case

Burden of Proof

In this case, section 16.92(3) of the Divorce Act is applicable as the current parenting order does not mandate that the Daughter spend “substantially equal time” with both parents and the parent with whom the child “spends the vast majority of their time” is not looking to relocate.  Accordingly, neither sections 16.92(1) nor 16.92(2) of the Divorce Act apply.

Both parties therefore have the burden of proof that the relocation is or is not in the best interests of the Daughter.”

T.W. v. C.B., 2024 ONSC 4169 (CanLII) at 74-82

“Expert witnesses are firmly part of Ontario’s justice system and have been so for several decades.  Expert witnesses provide invaluable assistance for parties and the Court.  Based on their unique expertise, they can assist in uncovering and analyzing relevant facts related to matters in dispute.  They can advise parties on appropriate factual inquiries to make of the opposing party which can inform the expert’s opinion.  Those opinions can assist parties in reaching settlement.  An expert’s evidence can provide tremendous help to the trier of fact in understanding the facts and in making factual findings.

It can be fairly stated that with the proliferation of expert evidence, an industry of experts in various fields now exists.  For example, in family law, the use of chartered business valuators, is now commonplace. They are very helpful in resolving family disputes, particularly ones involving litigants with business income or corporate assets.

With this proliferation of experts, there was a common complaint that too many experts were “no more than ‘hired guns’ who tailor their reports and evidence to suit the client’s needs.”: The Hon. Coulter A. Osborne, Report of the Civil Justice Reform Project: Findings and Recommendations (November 2007).  In fact, this was a principal objective behind amendments to the Rules of Civil Procedure and the Family Law Rules, that introduced new duties on experts, and required expert witnesses to attest to those duties, namely to provide opinion evidence that is fair, objective and non-partisan: see r. 20.1(2) and (3), Family Law Rules.

The duty to provide objective and non-partisan opinions is one trait that distinguishes experts from lawyers, who advocate for one party’s interests and who are clearly partisan.  The solicitor/client relationship, which is fiercely protected, is also manifestly different than the relationship between a party and a retained expert.  As such, the ruling in MacDonald Estate v. Martin, 1990 CanLII 32 (SCC), [1990] 3 S.C.R. 1235, relied upon by the Respondent, is not dispositive.

In MacDonald Estate, a junior lawyer worked at a law firm for the appellant.  He switched to a new law firm that acted for the respondent.  The Supreme Court held that the respondent’s law firm was disqualified from acting for the respondent.  It set a test to determine when a law firm is disqualified to act by reason of conflict of interest.

In McDonald Estate, the Court was concerned with three competing values that are unique to the practice of law, and not applicable or of negligible relevance to whether an expert witness should be disqualified to be a witness: the concern to maintain high standards of the legal profession and the integrity of our justice system; that a litigant should not be deprived of their choice of counsel without good cause, and; desirability of permitting reasonable mobility in the legal profession.

I accept that expert witnesses are sometimes engaged in litigation planning and can provide strategic advice to parties. In such a case, does the analysis of whether a conflict of interest exists for an expert witness elevate to that used for a lawyer?”

Lecker v. Lecker, 2024 ONSC 4413 (CanLII) at 19-25

“The appellant’s claim that the trial judge’s management of the trial was unfair and favoured the respondent does not bear up under scrutiny. The management of a trial is confided to the trial judge; it is not this court’s function to micromanage a trial in retrospect: R. v. Samaniego, 2020 ONCA 439, 151 O.R. (3d) 449, at paras. 15-17, aff’d 2022 SCC 9. The trial judge was patient with the parties and counsel, allowing the trial to stretch well beyond the estimated schedule. We will not criticize her modest efforts to corral counsel. Those efforts were balanced and reasonable.”

            Kahsai v. Hagos, 2022 ONSC 576 (CanLII) at 4

“Assessing the credibility of family violence allegations presents significant challenges.  Justice Chappel described those challenges in M.A.B. v. M.G.C., 2022 ONSC 7207, at paras. 179 and 180:

179      The social context considerations around family violence are such that the typical indicators of credibility in the litigation arena are unhelpful in some situations and may in fact lead to distorted and dangerous outcomes. For example, one traditional yardstick for assessing credibility is whether the witness can provide a clear, detailed and consistent version of the events in question, with a solid recollection of the chronology of those events. However, victims of family violence often suffer from significant trauma associated with the abuse, which may affect their ability to provide a detailed, consistent and accurate recollection and timeline of the events in question (K.K. v. M.M., 2021 ONSC 3975 (S.C.J.); aff’d 2022 ONCA 72 (C.A.)). In addition, as the Supreme Court of Canada emphasized in Barendregt, “family violence often takes place behind closed doors, and may lack corroborating evidence” (at para. 144; see also V.M.W. v. J.Mc.-M., at para. 167, per Zisman J.; W.A.C. v. C.V.F., 2022 ONSC 2539 (S.C.J.), at para. 396, per Finlayson J.). Furthermore, there may not be evidence of prior consistent disclosures of family violence to rebut claims of recent fabrication, as there are many reasons why victims of family violence may not disclose the violence (V.M.W. v. J.Mc.-M, at para. 167; W.A.C. v. C.V.F., at para. 396).

180      Notwithstanding these challenges in assessing the credibility of family violence claims, and the need for caution in relying on traditional credibility indicators, courts must remain cognizant of the reality that some allegations are in fact fabricated or exaggerated. Being closed-minded to these possibilities poses an equally serious threat to the achievement of justice in cases where family violence claims are advanced, and the courts must therefore meticulously assess the evidence in its totality to ensure that family violence claims are credible and are not being maliciously advanced to obtain a litigation advantage (Wilson v. Sinclair, 2022 ONSC 2154 (S.C.J.), per Fryer J.; W.A.C. v. C.V.F., at para. 397; Bandyopadhyay v. Chakraborty, 2021 ONSC 5943 (S.C.J.); Kinsella; A.E. v. A.E., at paras. 276-281; Lee v. Eckenwiller, 2021 ONSC 6519 (S.C.J.), at paras. 27-29).”

            Malone v. Cappon, 2023 ONSC 4344 (CanLII) at 122

“Retroactive awards of child support “cannot simply be regarded as exceptional orders to be made in exceptional circumstances” and “while the propriety of a retroactive award should not be presumed, it will not only be found in rare cases”: D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231, at para. 5.

As noted by the trial judge, in considering whether to order retroactive child support, “[u]nreasonable delay by the recipient parent in seeking an increase in support will militate against a retroactive award, while blameworthy conduct by the payor parent will have the opposite effect”: D.B.S., at para. 5.

The trial judge noted that the court must also consider the needs and circumstances of the child, and the hardship to the payor of a retroactive award. She stated that retroactive child support must not amount to a wealth transfer, citing Walsh v. Walsh (2004), 2004 CanLII 36110 (ON CA), 69 O.R. (3d) 577 (C.A.), at para. 16. The trial judge, citing Michel v. Graydon, 2020 SCC 24, [2020] 2 S.C.R. 763, at para. 41, stated, “Child support is, of course, the right of a child and is an obligation that exists regardless of the commencement of any proceedings to enforce it.”

Amid v. Jones, 2024 ONCA 595 (CanLII) at 34-36

“The Divorce Act was amended to include s. 21.1 to address those husbands who use the Get as a “bargaining tool for child custody and access or monetary support”. This was explained by Justice Abella, writing for the majority of the Supreme Court of Canada, in the decision of Marcovitz v. Bruker, 2007 SCC 54. Justice Stevenson relied on the following passage from paras. 3-7 of Bruker and I do as well:

A get is a Jewish divorce. Only a husband can give one. A wife cannot obtain a get unless her husband agrees to give it. Under Jewish law, he does so by “releasing” his wife from the marriage and authorizing her to remarry. The process takes place before three rabbis in what is known as a Beth Din, or rabbinical court.

The husband must voluntarily give the get and the wife consent to receive it. When he does not, she is without religious recourse, retaining the status of his wife and unable to remarry until he decides, in his absolute discretion, to divorce her. She is known as an agunah or “chained wife”. Any children she would have on civil remarriage would be considered “illegitimate” under Jewish law.

For an observant Jewish woman in Canada, this presents a dichotomous scenario: under Canadian law, she is free to divorce her husband regardless of his consent; under Jewish law, however, she remains married to him unless he gives his consent. This means that while she can remarry under Canadian law, she is prevented from remarrying in accordance with her religion. The inability to do so, for many Jewish women, results in the loss of their ability to remarry at all.

The vast majority of Jewish husbands freely give their wives a get. Those who do not, however, represent a longstanding source of concern and frustration in Jewish communities (Talia Einhorn, “Jewish Divorce in the International Arena”, in J. Basedow et al., eds., Private Law in the International Arena: From National Conflict Rules Towards Harmonization and Unification: Liber Amicorum Kurt Siehr (2000), 135; H. Patrick Glenn, “Where Heavens Meet: The Compelling of Religious Divorces” (1980), 28 Am. J. Comp. L. 1; M. D. A. Freeman, “Jews and the Law of Divorce in England” (1981), 4 Jewish Law Annual 276; Bernard J. Meislin, “Pursuit of the Wife’s Right to a ‘Get’ in United States and Canadian Courts” (1981), 4 Jewish Law Annual 250; Mark Washofsky, “The Recalcitrant Husband: The Problem of Definition” (1981), 4 Jewish Law Annual 144; M. Chigier, “Ruminations Over the Agunah Problem” (1981), 4 Jewish Law Annual 207; Shlomo Riskin, A Jewish Woman’s Right to Divorce: A Halakhic History and a Solution for the Agunah (2006); Ayelet Shachar, Multicultural Jurisdictions: Cultural Differences and Women’s Rights (2001); and J. David Bleich, “Jewish Divorce: Judicial Misconceptions and Possible Means of Civil Enforcement” (1984), 16 Conn. L.R. 201).

In response to these concerns, after consultation with the leaders of 50 religious groups in Canada and with the specific agreement of the Roman Catholic, Presbyterian and Anglican churches, in 1990 the then Minister of Justice, Doug Lewis, introduced amendments to the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), Bill C-61, giving a court discretionary authority to prevent a spouse from obtaining relief under the Act if that spouse refused to remove a barrier to religious remarriage (s. 21.1). At second reading, the Minister outlined the motivation for these amendments, explaining:

The bill before us today is an amendment to the Divorce Act which would provide a court with discretionary powers to preclude a spouse from obtaining relief or proceeding under the Divorce Act where that spouse refuses to remove a barrier to religious remarriage and where the power to remove the barrier to religious remarriage lies solely with that person. Where the court is satisfied that the spouse who refuses to remove the barrier has genuine grounds of a religious or conscientious nature for doing so, it need not exercise its discretion to grant the remedy provided for in this legislation.

… A spouse should not be able to refuse to participate in a Jewish religious divorce — called a Get — in order to obtain concessions in a civil divorce. The Get should not be used as a bargaining tool for child custody and access or monetary support.

… I am concerned about protecting the integrity of the Divorce Act and preventing persons from avoiding the application of the principles contained in the act. For example, a wife may feel compelled to agree to custody arrangements which are not truly in the best interests of a couple’s child in order to obtain a Get.

I want to take a few minutes to describe briefly the dilemma certain Jewish persons face because of their religious divorce procedures. In the Jewish religion divorce is accomplished by the delivery of a Get from the husband and its acceptance by the wife in the presence of a Rabbinical Court. According to the Jewish religious traditions, the procedure cannot be changed. Without a Get, a Jewish woman cannot remarry in her own faith. Children of a subsequent civil marriage suffer religious disabilities. While difficult remarriage within the Jewish faith for a man in the same circumstances is not impossible,

. . .

… the government is moving where it can and where it is brought to the government’s attention to eliminate sexism and gender bias in the law.

. . .

It is the case that in some religions, the Roman Catholic, Greek Orthodox and Islam, annulment or divorce may proceed more easily and faster if the couple agree.

However, in all these cases, the authority to grant the annulment or divorce rests with the religious tribunal, not the couple.

An un-co-operative spouse may delay a decision, but ultimately he or she cannot prevent the religious tribunal from rendering its decision.

In these religions, the spouse initiating the action can ask the religious authorities to deal with this problem.

The Jewish spouse does not have that recourse.

(House of Commons Debates, vol. VI, 2^nd Sess., 34^th Parl., February 15, 1990, at pp. 8375-77)

[Italics in original.]”

            N.S. v. A.N.S., 2021 ONSC 5283 (CanLII) at 36

“The settlement agreement is binding and enforceable.

Rule 18 of the Family Law Rules governs Offers to Settle. Rule 18(3) notes that a “party may serve an offer on any other party” while Rule 18(9) deals with what is required to validly accept an offer. Rule 18(9) notes that the only valid way of accepting an offer is by serving an acceptance on the party who made the offer, at any time before the offer is withdrawn or the court begins to give a decision that disposes of a claim dealt with in the offer.

The test is objective as to whether a contract exists: “the offer, acceptance, consideration, and terms may be inferred from the parties’ conduct and from the surrounding circumstances.” (Owners, Strata Plan LMS 3905 v. Crystal Square Parking Corp., 2020 SCC 29, [2020] 3 S.C.R. 247).

The Mother served an offer to settle on the Father pursuant to the Family Law Rules. The Father’s acceptance of the offer to settle from the Mother was valid and clear. The Father specifically asked how to sign back the offer. After the Father clarified the signature process by email, he stated clearly, “Accept in Full”.

There was consideration supporting the settlement agreement. The Father on his own initiative sent the offer to settle to the parties’ real estate lawyer who released $50,000 to the Father pursuant to the settlement agreement. The Father argues that he did not spend any of the funds received. The law requires only an exchange of consideration to support a binding agreement.

The fact that the Father sent the offer to settle to the parties’ real estate lawyer indicates conduct that there was a binding agreement between the parties. I do not find that there was any misunderstanding, error or other irregularity during the contract formation process. The doctrines of mistake, misrepresentation, non est factum or unconscionability do not apply (Owners, Strata Plan LMS 3905).

There is also no evidence of duress on the Father. The case law has established that the threshold to prove that an agreement was made under duress is high. The Mother submits that in Ludmer v. Ludmer, 2013 ONSC 784 (varied in part 2014 ONCA 827), Justice Penny states at para 53:

^{Duress involves a coercion of the will or a situation in which one party has no realistic alternative but to submit to pressure. There can be no duress without evidence of an attempt by one party to dominate the will of the other at the time of the execution of the contract. To prove duress, the applicant must show [they were] compelled to enter into the [agreement] out of fear of actual or threatened harm of some kind. There must be something more than stress associated with a potential breakdown in familial relations. There must be credible evidence demonstrating that the complaining party was subject to intimidation or illegitimate pressure to sign the agreement.}

The Father has not shown that he was coerced or compelled to enter into the settlement agreement out of fear of actual or threatened harm or subject to intimidation or illegitimate pressure to sign. The Mother argues that the Father was not under any financial or economic duress because he submitted that he did not use the funds received from the real estate lawyer. I agree.”

Clark v. Clark, 2024 ONSC 4965 (CanLII) at 14-20

“In the Supreme Court of Canada decision, Contino v. Leonelli-Contino, 2005 SCC 63, [2005] 3 S.C.R. 217,  the court made the following significant comments regarding the interpretation of s. 9 and the manner in which child support calculations should be approached in shared parenting scenarios:

1. 1. 1. 1. 1.  In shared parenting arrangements, there is no presumption in favour of the parent who has less time with the child paying the table amount of child support; rather, the court must determine the quantum of child support in accordance with the three factors listed in s. 9.
            2.  A finding that shared parenting exists does not automatically dictate a deviation from the table amount of child support. In some cases, a careful review of all the factors set out in s. 9 may lead the court to conclude that the table amount remains the appropriate figure.
            3.   In determining the appropriate quantum of support, none of the three factors listed in s. 9 prevails over the others. The court must consider the overall situation of shared custody, the cost to each parent of the arrangement, and the overall needs, resources, and situation of each parent. The weight to be afforded to each of the three factors will vary according to the particular facts of each case.
            4.   The purpose of s. 9 is to ensure a fair and reasonable amount of child support.
            5.   In adopting s.9 of the Guidelines, the legislature has made a clear choice to emphasize the need for fairness, flexibility, and the actual conditions, means, needs and circumstances of each parent and the child, even if this meant sacrificing to some degree the values of predictability, consistency, and efficiency.
            6.  The simple set-off approach may be a useful starting point (s. 9(a)). This is particularly so in cases where parties have provided limited information and the incomes of the parties are not widely divergent. However, the court emphasizes that the simple set-off approach has no presumptive value in carrying out the support calculation. It cautioned against a rigid application of the set-off approach, noting that that may not be appropriate when a careful examination of the respective financial situations of the parties and their household standards of living raise concerns about fairness of a drastic reduction in child support to the recipient.
            7.   The court held that the judge has discretion to modify the simple set-off where “considering the financial realities of the parents, it would lead to a significant variation in the standard of living experienced by the children as they move from one household to another, something which Parliament did not intend.” The court should strive for a result that avoids the child experiencing a noticeable decline in their standard of living as they move between households.
            8.  One of the considerations in carrying out the s. 9analysis is whether one parent is actually incurring a higher standard of the child’s costs than the other, such as costs relating to clothing and activities.
            9.   Subsection 9(b) recognizes that the total global cost of raising the child in a shared custody arrangement may be higher than a primary residence arrangement. It requires the court to consider the total additional costs attributable to the situation of shared custody. In carrying out this analysis, evidence of necessary duplication of fixed costs arising due to shared parenting may be important.
            10. Not every dollar spent by a parent who has the child more than 40% of the time is a dollar saved by the recipient parent. In absence of evidence to the contrary, it is possible to presume that the recipient parent’s fixed costs have remained the same and that their variable costs have only marginally decreased by the other parent’s increase in time with the child.
            11. Financial statements and/or child expense budgets are necessary for the court to properly carry out the child support analysis pursuant to s. 9(b).  The judge should not make assumptions regarding additional costs attributable to shared parenting in the absence of any evidence relating to the issue.
            12. The court’s discretion under s. 9 is sufficiently broad to bring a parent’s claim for s. 7 expenses into the analysis under that section, taking into consideration all the factors outlined in s. 9.”

            Beaudoin v. Stevens, 2023 ONSC 4401 (CanLII) at 81

“Subsections 45(2) and 45(3) of the Arbitration Act provide that an appeal of a final family arbitration award lies to the Family Court (in those areas where it has jurisdiction) or otherwise to the Superior Court of Justice. Leave is not required.

The court raised the issue of whether leave was required to appeal the costs award, considering the decision in Flowers v. Eickmeier, 2017 ONSC 3376. Justice Di Luca held that section 133(b) of the Courts of Justice Act requires that leave be granted where an appeal is only as to costs, and section 45 of the Arbitration Act does not specifically address the issue of leave to appeal in relation to a costs award. He found that leave was required to appeal an arbitral cost award to the court.

I find that where the arbitration agreement itself does not require leave to appeal a costs award, leave is not required, largely for the reasons given by Ramsay, J. in Schickedanz v. Wagema Holdings Ltd., 2022 ONSC 5315, at paras. 12-25. Imposing a leave requirement to appeal costs amounts to judicial interference with the parties’ right to contract. It is also not consistent with the text, context, and purpose of the two governing statutes.

Section 133(b) of the Courts of Justice Act applies only to courts and requires leave where the appeal is “only as to costs that are in the discretion of the court that made the order for costs.” There is no reference to appeals from arbitrators. There are detailed appeal provisions in the Arbitration Act, which allow for appeals on questions of law, fact, and mixed fact and law, all without leave if the parties agree. There is no equivalent to the restriction set out in s. 133(b) of the Courts of Justice Act. Leave is not required for costs appeals under the Arbitration Act.”

Maxwell v. Maxwell, 2024 ONSC 4207 (CanLII) at 3-6