Deference to Arbitrator Falls When Best Interests of Child Are Overlooked

GeorgiaLeeLang009In Canada, courts are becoming increasingly deferential to arbitrators as a result of opinions from the Supreme Court of Canada, namely, Teal Cedar Products Ltd. v. British Columbia, 2017 SCC 32, and the rapid growth of arbitration, as our court system continues to flounder under the weight of increased traffic and the related costs.

While family law arbitration has been practiced for many decades in Ontario, it is still in its infancy in British Columbia, after being introduced in 2013.

British Columbia’s leading case is McMillan v. McMillan 2016 BCCA 441 where the court established the following principles:

1. an arbitrator’s findings of fact are not open to review;
2. questions of law are questions about what the correct legal test is;
3. questions of mixed fact and law permit a review on the standard of reasonableness, nor correctness;
4. deference to the family law arbitrator calls for “respectful attention” to the reasons offered, or which could have been offered; and
5. the overriding test of reasonableness is whether the decision falls within a range of possible acceptable outcomes which are defensible in respect of the facts and the law.

These legal maxims were at play in the British Columbia Supreme Court’s consideration of an appeal from a family law arbitration award in Forrest v. Forrest 2019 BCSC 1323.

The uncontested facts presented to the arbitrator included the following:

1. Ms. Forrest, age 42 was self-employed as an interior designer and television personality. Her husband was a self-employed Project Manager with one client, BC Hydro.

2. The parties cohabited for 14 years, living initially in Ontario, then in BC and then back again in Ontario. Each of them had two adult children from previous relationships and together had three more children, a boy age 17 and twin girls, age 10. The parents both participated in parenting their seven children.

3. They separated in November 2013 in Ontario, where Ms. Forrest remained with the three biological children while Mr. Forrest moved to British Columbia, although he visited his children often and maintained a rental property nearby his children for a time. In August 2016 Ms. Forrest and the children moved to BC in order to attempt a reconciliation, which ultimately failed.

4. The parties together worked out a parenting schedule from the date of separation until early 2018 when Ms. Forrest announced that she wished to move back to Ontario for employment purposes.

Prior to the 4-day arbitration the parties agreed their 17-year-old son would remain with Mr. Forrest on Vancouver Island. The arbitrator ruled that the twin girls would also remain with their father. Ms. Forrest appealed the arbitrator’s award on the following grounds:

1) That the arbitrator misapprehended and misapplied the best interests of the child test pursuant to s. 37 of the Family Law Act (“FLA”).

2) That the arbitrator made a status quo preference error contrary to sections 37(2)(e), 40(4), and s. 46(2) of the FLA.

3) That the arbitrator failed to conduct a blended analysis by deciding location separately from parenting arrangements contrary to the requirement of section 45 of the FLA.

4) That the arbitrator misapprehended and misapplied the relocation test pursuant to s. 46 of the FLA.

Mr. Justice McIntosh reviewed the findings of fact made by the arbitrator and identified a number of key findings, including:

a) Ms. Forrest “wishes to move in order to pursue her career. She wishes to be as successful as possible, both in order to achieve financial independence and for personal satisfaction. I take no issue with this. I also accept that her opportunities for success in her line of work are in Toronto and not here in Victoria”.

The Court noted that Duggan v. White 2019 BCCA 200, provided ample support for Ms. Forrest’s relocation to Toronto in order to achieve financial independence and career satisfaction, “without that in any way being held against her in the relocation analysis at the heart of this case.”

2. “I find that the emotional health and well-being of the twins would best be served if they could be with their mother. I accept Dr. Colby’s opinion that they would experience emotional harm and would require therapy in order to adjust to their mother’s absence should she move to Toronto without them.”

Judge McIntosh observed that the arbitrator unequivocally accepted Dr. Colby’s opinion that the twins would be best served by being with their mother and she included a counselling provision for the girls to assist them to adjust to living such a distance from their mother. He also remarked that the evidence revealed that the arbitrator’s December 10, 2018 decision was not released until January 20, 2019, wherein the arbitrator “took the unusual step of offering Ms. Forrest three years’ of additional spousal support and increased parenting time if she remained in the Saanich area”, albeit the arbitrator was aware that Ms. Forrest was moving to Toronto.

3. “The twins want to be with their mother. Dr. Colby finds the twins to have a “chronological and gender affinity with their mother” which he finds to be “age appropriate”. I also find that this affinity is present. However, I find that it [is] not simply due to their age and their gender. I find that Amanda has in the past been the primary parent in their lives, taking care of the details of their life, and as such it feels safer and more comfortable for the girls to be with their mother going forward.”

4. “I find that Amanda has been the primary caretake for the twins…I find that Amanda has been more present for the twins….Amanda has taken the leadership role…I find that the history of care of the twins to be a persuasive factor to move the twins to Toronto”…I find Amanda to be a good parent…I do not accept Dr. Colby’s conclusion that the is trying to undermine Stephen’s relationship with the twins….I also believe Dr. Colby got it wrong when he believed that Stephen was an equally involved parent….I find that Amanda’s parenting plan is a better one than Stephen’s”.

Because of these findings, one is stymied as to how the arbitrator came to her final decision that the twins would not relocate with their mother. Mr. Justice McIntosh determined that the facts found by the arbitrator indicated a “clear breach of section 37 (3)” regarding the best interests of the child.

The critical error of law made by the arbitrator was her conflation of the parties’ 17-year-old son’s evidence that he wanted to remain with his father and did not want to be separated from his twin sisters. The problem was that the arbitrator failed to consider only the best interests of the twins. She negated their best interests and allowed their brother’s desires to trump what was best for them. The arbitrator also relied on the twin’s relationship with extended family in Victoria to favour their Victoria residence.

Judge McIntosh considered whether he ought to remit the case back to the arbitrator or amend the arbitration award to reflect the twins’ move to be with their mother, and chose the latter, pursuant to section 31 (4) of the Arbitration Act.

An interesting case that ultimately resulted in four days of court, after a 4-day arbitration.

Lawdiva aka Georgialee Lang

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