Court Cannot Order Parties into Arbitration or Limit Child Support Variation Applications

In SSG v. SKG 2022 ABCA 379 Canlii, after a 26-day trial involving a high-conflict couple, the court made orders for a detailed parenting plan for two children, ages 9 and 10-years old, retroactive and ongoing child support payable by the father to the mother, and an order that the parties retain a parenting coordinator with arbitration authority to “resolve the day to day conflict that may arise related to the detailed parenting plan or in relation to any conflict over joint decisions.” The court also ordered that the parties could not bring an application to vary child support unless the father’s line 150 income deviated upwards or downwards by more than 20% and the mother could not bring a variation application based on a decrease in her income.

The parties, who had been married for 7 years, set down a 10-day trial which ballooned into 26 days and generated hundreds of pages of written submissions. Both parties indicated a willingness to have certain issues arbitrated, however, after the trial reasons were handed down on February 14, 2022, they appeared again before the court on July29, 2022 to resolve several outstanding matters. Because they disagreed on the form of order for the July 29 hearing, the trial judge drafted the order which read:

” Within 30 days of the date of this Order, the parents shall retain a Parenting Coordinator with arbitration powers, the cost of which shall be shared equally between the parties. If the parties cannot agree on a Parenting Coordinator they will remain Krysta Oswald.

When first retained, the Parenting Coordinator shall be provided with all reports, judgments, prior arbitration awards, and court orders and shall speak to Dr. PP, Ms. R. and Dr. F.”

Before the order was made the children’s mother made the following submission to the court:

” I have thought about that a lot. We have participated in parenting coordination multiple times. Everybody agrees it’s been nothing short of a disaster. It is expensive and now there is a mountain of paper that I understand the court says…before we go see somebody, they have to go through that and then they have to consult all these people. I don’t see that very likely to get a timely decision about anything that comes up.”

The mother appealed both the arbitration order and the order restricting a child support variation.

The appellate court determined that the trial judge had no authority to impose arbitration on the parties, relying on Durocher v. Klementovich 2013 ABCA 115 where the court said:

…it is a principle of access to justice that the parties can bring any dispute they may have to the Court…if would be extraordinary to decline to decide, must less compel the parties to submit to a private adjudicator….a court of competent jurisdiction does not permit the delegation of that power to private arbitrators. An obligation to arbitrate must be founded in a statute or an agreement.”

With respect to the order restricting applications to vary child support, the appeal court accepted that the trial judge was “well-intentioned” and wished to discourage litigation, but nothing in the Divorce Act or the Child Support Guidelines authorized him to limit the circumstances in which a variation application could be made.

The mother’s appeal of both issues was allowed and the orders were set aside.

Lawdiva aka Georgialee Lang

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