Rosenberg v. Minster, an analyses

Child Custody and Access and Family Law Arbitration

Rosenberg v. Minster 2014 ONSC 845

This case deals with the extent to which a court can or should intervene in a family law arbitration where the arbitrator has determined custody of and access to a young child.

In this case, the arbitrator did not hear evidence, but instead decided the issues based on written submissions. The arbitrator did not release a final award until over seven months after the written submissions were completed, which was outside the time limit provided for by the arbitration agreement. The arbitrator later issued another award that revised minor scheduling issues released in the first award.

The mother appealed and moved to set aside both awards. She claimed that

1. the delay in completion of the arbitration invalidated his awards and the parties’ agreement to arbitrate,
2. the arbitrator’s procedure was unfair to the mother, and
3. the awards were not in the child’s best interests.

The father moved to incorporate the terms of the awards into an Order. He submitted that the mother’s appeal and motion to set aside were out of time, because she waited four months after the first award was delivered to issue her application to set it aside and almost six months to serve her appeal. However, the mother’s motion and appeal were not barred because there was a matter of substance still to be settled in the form of the award and it was therefore correct to count the time only from the date of the supplementary award.

The mother’s appeal and motion were dismissed and the father’s motion was granted.

Delay

The parties both gave the arbitrator their written submissions on August 1, 2012. Accordingly, the 60 day period set out in the arbitration agreement for completion of the award expired on September 30, 2012. However, the arbitrator inadvertently left the parties’ written submissions at his country home and asked the parties at the end of November to send him copies of their submissions (at his expense). The parties decided to wait until the arbitrator went back to his country home in December, knowing that work on the award would not resume until then. The parties were not concerned about delay and extended the time for the arbitrator to make his award on consent.

The judge found that while there was, in fact, a significant delay in the proceedings, the delay in the arbitration did not amount to an error in law, did not invalidate or end the arbitration agreement, and did not amount to unequal or unfair treatment of the mother. The mother did not have any grounds to complain about the arbitrator’s delay, as she acquiesced to it.

Procedure

The judge found that the procedure adopted by the arbitrator was not unfair to the mother. There were two mediation sessions with the arbitrator, where the parties were both represented by counsel, during which they both had the opportunity to acquaint the arbitrator with all the facts. The parties also had a draft comprehensive parenting plan prepared by the arbitrator after each mediation session, on which they commented extensively each time. They each provided the arbitrator with detailed written submissions on all issues. The arbitrator had ample information on which to base his decisions and make the awards he made. If he did not, that was the fault of the party who failed to supply it. Apart from delay, there was no ground for the mother’s objection as to how the arbitrator proceeded.

Best Interests of the Child

The mother submitted that the delay was a crucial factor in evaluating the child’s best interests, which she said changed in the 11 months since the first award and the 18 months since the parties’ submissions were filed with the arbitrator. She further argued that the court ought not to allow for the arbitrator’s ‘crystal ball gazing’ up to age 5. However, the draft Order proposed by the arbitrator specifically contemplated that the parenting time under the award may be changed at any time by written consent of the parties or by court Order. The arbitrator’s approach was not an undue stretch in predicting what was sensible for the foreseeable future.

Custody, Access and Alienation: McAllister v Norman, 2014

This case addresses the issue of custody and access in the context of alienation.

Background

The parties in this matter had one child together.  The Mother wished to move with the child from Kitchener, Ontario to Casselman, Ontario and provided strong assurances to the court that she would facilitate contact between the Father and child.  Relying on such assurances, the court permitted the mother to move and ordered joint custody, primary residence with the mother and extensive regular access between the father and child.  The Father claimed that the mother obstructed the essential terms of access and appealed.

Analysis

The court found that the many assumptions made at trial were based upon Ms. Norman’s assurances that “she would make sure that if she were allowed to move [the child, K.,] to Casselman, there would be frequent and regular contact between father and son” (paragraph 14).  Further, the court found, “Based upon the now proven allegations of Mr. McAllister and the irrefutable reality that he has been effectively marginalized from his son’s life…one need not work hard to recognize that hardly any of the intent of the provisions of Hardman, Prov. J.’s optimistic access expectations have been met” (paragraph 19).

After a consideration of the evidence, the Court held “There is no doubt that if Mr. McAllister[, the Father,] is to ever have any real relationship with K., the child’s continued residence six hours away from his father, his father’s extended family, his maternal grandmother and aunt (all of whom live in the Kitchener-Waterloo Region) cannot continue” (paragraph 22).

The Court found that the Mother, Ms. Norman, was determined to replace the Father with Mr. Nickerson and, subsequently, deprive K. from having any contact at all with the McAllister family (paragraph 22).

The Court then provided, “Ms. Norman’s true strategy is further revealed and corroborated when she gave Mr. McAllister notice that she was ‘considering’ changing K.’s surname from K. Madiron McAllister to Maiden Madiron Norman” (paragraph 25).

Upon considering section 24 of the Children’s Law Reform Act, Justice Campbell found that “it is in K.’s best interests that he be returned to this Region of Waterloo to be closer to his father and his father’s (and mother’s) extended family, who all live in this area” (paragraph 27).  Justice Campbell further held that Ms. Norman was entirely unwilling to comply with the court’s expectation that she was to ensure that the father-son relationship would be “encouraged and promoted” (paragraph 28).  Ms. Norman was ordered to facilitate access in Kitchener at least one weekend per month from January 13, 2014 to May 2014, and failed to facilitate such access at all during this time period.

After a consideration of the above, the Court ordered that the child be in the primary care of the Father in Kitchener, Ontario.  However, Justice Campbell gave Ms. Norman the opportunity to decide to move back to Kitchener and resume custody of K.

A large part of this decision to overturn the court’s previous decision was based on correspondences between the parties by email.  Thus, this demonstrates the significance of such correspondences between parties and emphasizes the consequences of acting contrary to an Order made by a court of competent jurisdiction.