The following cases illustrate some of the advantages and disadvantages of Alternative Dispute Resolution.
Deal or No Deal – Reaching a Settlement in Family Law Matters
In a case called Swift v Swift, the issue was whether the parties had reached an agreement at their earlier settlement conference. The case illustrates what factors are taken into account in determining whether an agreement has been reached between negotiating parties in Family Law.
In this case, the parties had three children together and they had separated after 11 years of marriage. There was a lot of acrimony between the parties, and they tried to resolve their issues by attending a settlement conference before an Ontario Family Court judge.
At the end of the conference, the lawyers for the parties verbally advised the judge that a settlement has been reached between the parties and the minutes of the settlement will be filed accordingly with the court. The judge noted on the file that the matter “appears settled”. The husband started paying support in accordance with the settled terms at the conference. His lawyer drafted the minutes of the settlement conference which reflected the agreement reached between the parties. This draft agreement was forwarded to the wife and her lawyer.
However, the draft agreement led to some additional correspondence between the parties’ requesting changes. It became clear that the parties did not agree on what the minutes of the settlement entailed. Specifically, the husband pressed on three matters to be resolved for an agreement to be reached between the parties: allocating responsibility for paying certain medical expenses, dealing with the jointly owned time share property and issues with Canada Revenue Agency deduction with regards to husband’s spousal support deduction. The husband insisted that no settlement can be reached until these issues are addressed. The matter made its way to the court and the judge had to decide whether these issues were essential to the agreement between the parties and whether an agreement has been reached respecting all the essential terms of the agreement at the settlement conference in question. Essentially, the court considered whether the three matters raised by the husband were essential to the issue or simply ancillary.
The wife held the view that these matters were ancillary, that a binding agreement has been reached between the parties at the settlement conference and all essential terms have been addressed. The husband held the view that there were essential terms still left undecided including the three matters brought up by the husband, as well as matters related to spousal and child support.
In determining the issues, the court looked at the law of contracts and how they are formed. The court affirmed that oral agreements are enforceable in law. If the parties had orally agreed on all essential terms and provisions, the execution of a written agreement in the future does not affect the validity of the oral agreement.
The court looked at whether there was a “meeting of the minds” between the parties in regard to the negotiations i.e., was there an intention from both parties in determining whether a settlement was finalized. The court looks at the conduct of the parties, and whether a reasonable person in their situation would believe and understand that they had come to an agreement. The court addressed the following main issues:
- Whether there was a “meeting of the minds” between the parties;
- Whether the parties had reached a consensus on all the essential terms of the agreement (or whether there were still vague and imprecise parts); and
- Whether the agreement was conditional upon the execution a formal written contract.
The court made the following conclusions. The parties had reached at an agreement at the settlement conference; all the essential terms were addressed between them. The three matters raised by the husband were ancillary and non-essential to the agreement. Secondly, there was no condition that the agreement will be legalized upon the execution of a formal written contract. This was reinforced by the spouses’ subsequent conduct, and by the behavior of their lawyers immediately after the settlement conference (Including the preparation of draft minutes of settlement). Lastly, the court added that because the judge may have written that the matter “appears settled” did not preclude the current court from deciding whether the spouses had reached a settlement agreement or not. The wife’s motion was granted.
Fairness in Dispute Resolution: Arbitrator Accuses Mom of raising a “SPOILED PRINCESS”
Mediation and Arbitration are useful means of dispute resolution when proper safeguards have been followed. Care must be taken to ensure fairness and to ensure that a reasonable apprehension of bias does not arise. In a case called McClintock v. Karam, the court found an arbitrator lacked fairness and absence of bias towards the mother and had to be replaced with a different one entirely.
In this case, the parties were married for 5 years and had a 10-year-old daughter together. They had entered into a separation agreement two years after separating. Things got hard when father remarried and mother decided to relocate from Toronto to Burlington, which the father opposed. Negotiations after relocation failed and as per the agreement, an arbitrator was appointed to help settle their issues.
The negotiations were off to a rocky start. Father has alleged that the mother was alienating the daughter from him, that the mother had encouraged and convinced the daughter to not want to see her father. She regularly scheduled activities during times when father was supposed to visit, and he was made out to be a bad parent.
After several failed mediation sessions, the matter was in court. Not only did the court look at the issues between the parties but the court also reviewed the nature and tenor of the arbitrator’s involvement in trying to help resolve the parents’ dispute. Examining the correspondence and e-mails between them, the court concluded that the male arbitrator had “come to have considerable sympathy with the [father’s] position,” as evidenced by his disparaging comments aimed at the mother. For the mother, the arbitrator had used the following words: the mother had “knowingly, unknowingly, inadvertently, intentionally” undermined the relationship between the father and daughter, and had raised the daughter to be “a spoiled princess.”
The arbitrator even wrote to advise that he would be deciding the question of whether the daughter should go live with the father exclusively, with no access to the mother until she can behave in a way that supports the father/ daughter relationship. This was not one of the questions the parents had asked him to resolve, it was a clear demonstration of the arbitrator greatly overstepping his role and authority.
The arbitrator’s behavior hinted towards a bias against the mother. The most egregious example arose in connection with the scheduling of hearings. The court expressed:
“The subsequent conduct of the mediator/arbitrator serves only to heighten the concern [about fairness and lack of bias]. He gave notice of a single day of arbitration. The notice was quite short. When counsel for the [mother] said he would be out of the country, the arbitrator refused to change the date, even though counsel was only suggesting a delay of two months. [The daughter] had been residing with her mother for nine years, and it is inconceivable that a delay of two months was unreasonable or could not have been accommodated. However, the mediator/arbitrator insisted on proceeding on the date he had fixed, even though the applicant would be without counsel and the mediator/arbitrator himself conceded that there was no dire emergency. During the correspondence about the arbitration process, [the arbitrator] continued to make statements suggesting he had made up his mind, including “Ultimately though, should this matter return to court and in the absence of change with regard to the behavior of [the mother], you must know what intervention I would be supporting if called to court.”
The court applied the legal test to determine if there was a reasonable apprehension of bias. The court made its decision on the basis whether an informed person, viewing the matter realistically and practically, and having thought the matter through, would think that it is more likely than not that the arbitrator, whether consciously or unconsciously, would not decide fairly. The court concluded that an informed person would find it more likely that the arbitrator would not decide fairly.
The court took into account the nature of the tribunal. Several of the arbitrator’s comments were critical of the mother in a tone and context that suggested that he had already made up his mind as to the outcome. The court ordered the arbitrators removal and recommended that any future arbitration should be conducted by an arbitrator with legal training, preferably one experienced in Family Law.