McClintock v Karam, 2015 ONSC 1024

This case considers the appropriateness of mediation/arbitration as an alternative dispute resolution process for family disputes. Specifically, the case addresses when a mediator should be disqualified from also acting as the arbitrator in a case.

Background

The Applicant Mother and Respondent Father were married in 2001 and divorced on December 22, 2006. The parties entered into a Separation Agreement in 2008. The parties agreed to joint custody of their young daughter, who was to primarily reside with the Applicant Mother. The agreement stipulated that if a disagreement arose relating to access or any other important matter, a family counselor would have the authority to make a binding decision regarding same.

In 2012, the parties created an Amending Agreement, which provided that if the parties cannot resolve a dispute with respect to custody and access, the matter would be referred for mediation/arbitration.

Despite the Amending Agreement, the Mother commenced an Application to the Ontario Court of Justice for sole custody. Justice O’Connell dismissed the Application on a summary judgment basis, holding that the parties had entered into a valid Amending Separation Agreement which provided that the dispute would be referred to mediation/arbitration.

The parties subsequently executed a Mediation/Arbitration Agreement appointing Gary Direnfeld to act as Mediator/Arbitrator (also called the “Service Provider”). The Agreement permitted the Service Provider to perform both mediation (non-decision making) and arbitration (decision-making) functions over disputes concerning “parenting.” The parties waived section 35 of the Arbitration Act, which provides:

The members of an arbitral tribunal shall not conduct any part of the arbitration as mediation or conciliation process or other similar process that might compromise or appear to compromise the arbitral tribunal’s ability to decide the dispute impartially.

During mediation, the Father alleged that the Mother was engaging in a campaign to alienate the daughter from him. The Father proposed that the daughter reside with him, with no access to the Mother until such time that she can support the father/daughter relationship. The parties did not agree on whether the Mother engaged in alienating behaviour and also did not agree on the Father’s proposal. The Mother submitted that a change to residency and terminating access were fundamental issues beyond the scope of the Mediation/Arbitration Agreement. However, the Service Provider determined that he had jurisdiction over the matter and set a date for Arbitration.

The Mother had serious concerns that the Service Provider was biased and sympathetic to the Father. The Mother applied to the Court for a judicial determination of two issues: (1) whether the mediator/arbitrator has the jurisdiction to arbitrate this dispute and (2) whether there is a reasonable apprehension of bias, and/or whether the mediator/arbitrator acted unfairly.

Analysis

The Court held that a mediator/arbitrator had the jurisdiction to hear the dispute. In reading the original Separation Agreement and the Amending Agreement together, the mediation/arbitration clause applies to all incidents of custody and access. Pursuant to section 56(1) of the Family Law Act, a Court is open to disregard any provision of a separation agreement if it is in the best interests of the child to do so. However, Justice Gray determined that the dispute was properly before the mediator/arbitrator.

Despite the above finding, the Court concluded that the Service Provider was to be removed as the mediator/arbitrator on the basis of a reasonable apprehension of bias. The legal standard for reasonable apprehension of bias is whether an informed person, viewing the matter realistically and practically, would think it more likely than not that the decision maker would, either unconsciously or consciously, decide the issue unfairly (Committee for Justice and Liberty v. Canada (National Energy Board), 1978 1 SCR 369). The evidence that suggested a reasonable apprehension of bias included the following:

• Recorded transcripts of mediation sessions where the Service Provider told the Mother that she was undermining the relationship between the daughter and her father. The Service Provider also stated that the Mother’s behaviour would be corrected either by the Mother’s own willingness or at an arbitration hearing where he changes the residential plan;
• The Service Provider selected an early arbitration date and refused a request for a short delay from the Mother’s counsel because he had a vacation booked on the arbitration date;
• The arbitration was scheduled for one day, despite a request for a weeklong arbitration so that the Mother may call and examine witnesses;
• E-mail exchanges between the Service Provider and counsel created the presumption that the Mediator/Arbitrator had already decided the matter.

Pursuant to section 15 of the Arbitration Act, the court removed the Service Provider as arbitrator because he did not act in accordance with his duties defined under the Act, namely that he is required to treat all parties fairly and equally. The Court found that the mediator/arbitrator did not treat the Applicant Mother fairly as he failed to provide the parties with adequate time to prepare their case, an adequate number of days of hearing to present the case, and the opportunity to have counsel present.

Mediation often requires the appointed person to engage in a great deal of informality in order to facilitate an agreement between the parties.

“Mediative techniques include persuading, arguing, cajoling, and to some extent, predicting” (paragraph 69).

The Court noted that mediation/arbitration can be an effective means for dispute resolution, but the mediator/arbitrator must not act in a manner that suggests he or she has already reached a firm conclusion and is not open to persuasion at arbitration. In this case, a reasonable person would not expect the mediator/arbitrator to decide the matter at arbitration fairly. Accordingly, the Court concluded that the arbitrator was to be removed given the circumstances and a new arbitrator was to be agreed upon between the parties, or, if the parties could not agree, then appointed by the Court.