Case information

Family law — Custody — Mobility rights — Administrative law — Natural justice — Arbitrator deciding custody issue in favour of mother and permitting her to move with children to city where their educational needs could be met — Reviewing judge determining that father’s right to natural justice had been violated — Can a party’s right to natural justice be abrogated in cases involving children? — Does a family law arbitrator have duty to ensure procedural fairness in absence of specific objections pursuant to s. 19 of Arbitration Act, S.O. 1991, c. 17? — When dealing with allegations of denial of natural justice, does a more deferential standard of review apply to family law arbitration awards than decisions made within a court process?

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

The parties were married in 2003 and have three children: a daughter born in 2007, and twin boys in 2009. The parents separated in 2011. They agreed to joint custody in a separation agreement with the children residing primarily with the mother and parenting time for the father on alternate weekends and sometime midweek. The children suffered emotionally and academically under this arrangement. According to the mother, they were in crisis. She initiated the custody review procedure under the separation agreement. It was recommended by a physician that the children be enrolled in a school that offered a “direct instruction” system to address their educational needs. Unable to find an affordable and suitable place in Toronto, the mother found an appropriate school in Kitchener. The father did not agree that the children were having difficulties at school. He wanted them to stay at their current school and he wanted more time with them. The parties appeared before the lawyer for an arbitration. Shortly before the arbitration began, the mother gave notice that she wished to move from Toronto to Guelph so that the children could attend the school that she had found. The father did not object to the short notice nor did he request an adjournment at the arbitration hearing. The mother was awarded custody and was permitted to move from Toronto to Guelph with the children. The arbitrator awarded the father parenting time on a scheduled basis that eliminated his midweek parenting time. On appeal, the arbitration award was set aside on the basis that the short notice the father received on the mobility issue resulted in procedural unfairness. A re hearing of the parenting issues was ordered. The mother’s appeal from that decision was allowed and the arbitration award was restored.