Family Law Arbitrators Have No Jurisdiction to Consider Whether Litigants Are in Contempt

January 22nd, 2016 by

In a recent decision, Justice Charney of the Ontario Superior Court considered an issue that will be of some interest to family law litigants, especially those engaged in family law arbitration or considering family law arbitration.

Before delving into the details of the decision, a brief overview of the difference between arbitral tribunals (a.k.a arbitrators) and courts should provide a framework of discussion.

At the risk of oversimplification, there are two levels of trial courts in Ontario – the Ontario Superior Court of Justice (SCJ) and the Ontario Court of Justice (OCJ). The SCJ is a superior court of inherent jurisdiction – the court derives its power from the constitution and generally has unlimited power to hear civil and criminal cases. The OCJ is not a superior court and does not have inherent jurisdiction – all its powers as a court are derived from the Courts of Justice Act, the Criminal Code, the Family Law Act, as well as a few other statutes. The Court cannot perform a function, hear a motion, make an order or take any other step that is not somewhere provided for in statute.  In this grand caste of Ontario judicial power, arbitrators are (again, oversimplification) like the Ontario Court of Justice. While there will be an arbitration agreement between the parties outlining the substantive issues to be dealt with by the arbitrator and some procedural nuances, all of the procedural powers that an arbitrator can exercise are contained in a statute, the Arbitration Act.

In Woronowicz, the parties had been married for six years and had two children. When the parties separated, there was considerable friction and conflict between them but eventually they entered into a consent order where the parties were given joint custody and the children resided primarily with the mother. Part of that consent order was a term that the mother would inform the father of any major changes in the children’s lives, including a relocation.

In 2014, the mother told the father that she was moving from Barrie to Brampton with the children. The father opposed and a volley of motions began, including a motion to find the mother in contempt of the original order by her unilateral plans to move. The parties finally agreed to submit their issues to an arbitrator to decide.

On the contempt motion, the arbitrator found the mother in contempt on numerous grounds and ordered her to pay the father $7,000.00. As arbitrators have no power to enforce their awards (because its not in the Arbitration Act), the father submitted the award to the Court (before Justice Charney) to turn it into an enforceable court order. This is when he hit the roadblock.

Justice Charney began with a rather thoughtful expository on the law of contempt proceedings. He determined that there were two types: contempt in the face of a court (which involves frustrating the court process, such as by refusing to testify) and contempt not in the face of a court (which involves disobedience of court orders that does not frustrate the judicial process). Justice Charney opined that while every court of competent jurisdiction has the power to find contempt in the face of court, only superior courts can find contempt not in the face of court. Thus, if there was a power for an arbitrator to find a litigant in contempt, it would have to come from their enabling statute – the Arbitration Act. Reviewing the statute, Justice Charney found that no such power existed. While he found that Superior Courts could certainly rule on contempt arising from arbitration awards, the inverse was not true. Arbitrators could not rule on contempt of orders made by the Superior Court, or any court at all. They may find that parties are not following court orders, but they can not make a ruling on contempt.

If you have an issue with the enforcement of a court or arbitral award, or have any family law issues, please contact the experienced family law team at Devry Smith Frank LLP.

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