The use of an arbitrator or a mediator is a great way to resolve issues between separated parties without the time and costs associate with pursuing litigation in courts. Sometimes, separation agreements or final orders from a divorce can specify that if the parties do not agree on something, they have to pursue arbitration or mediation before returning to the courts. Of course, like in litigation, a party to arbitration might find that they did not get the outcome they were hoping for. In a recent decision from the Ontario Superior Court of Justice, two parents ask the court to determine if the decision from an arbitrator is enforceable or not.
Parents cannot decide where to send son to school
The parents involved in the case began living together in 2007 and separated in 2010. They had a son who was born in 2009 and is currently in grade 6. He will be attending high school in a few years. He is currently going to a private school, and the parents plan to send him to a private high school as well. There are a number of schools they could choose from, but they could not decide on which ones they should apply for on behalf of their son.
The parents agreed to hire an arbitrator to make a decision on the matter. On April 7, 2020, the arbitrator wrote,
“(The father) agrees that (the child) should go to a better school and his first choice would be UCC. If (the child) is not accepted at UCC then Sterling Hall, York School or Crescent would be other suitable choices. Accordingly, (the mother) should prepare the necessary applications. I am not sure how the schools are going to process applications in these difficult times, but I leave it to the two of you to figure that out.”
The father, however, wanted to focus only two of the schools, UCC and York. After the arbitrator moved off of the case, the mother asked the court to enforce the direction provided by the arbitrator in the April 7 email.
Was the arbitrator’s email a binding decision?
The court stated that it was the intention of the parents to have the arbitrator make a “choice of schools” decision. While the mother stated the arbitrator’s email contained clear direction, the father was of the opinion that it lacked the clarity, certainty, and specificity in direction that an enforceable award would have.
The court agreed with the mother, stating that the arbitrator was brought in because the parents could not agree on which school their son should go to. The arbitrator was also clear that UCC should be the first choice, but if the son could not get into that school, the other three schools were acceptable. The arbitrator also asked the mother to prepare the applications for these schools.
The court also found that since the father’s two choices for a school are included in the four recommended by the arbitrator, that the decision reflects some common ground between each of the parties.
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