It is not controversial that decisions of arbitrators are to be
given substantial deference by Courts. In its January 30, 2015
decision in Murphy v. Murphy, the Ontario Court of
Appeal emphasized that this is very much the case in the family law
context, even to the point of returning a matter for consideration
by an arbitrator when it was arguable that he ignored a key legal
principle. The case also demonstrates that appellate courts have
discretion not to hear the submissions of a party when that party
has demonstrated a contemptuous attitude towards court orders.
The parties in this protracted family law dispute agreed to
submit their differences to an arbitrator. Success was divided,
leading to an appeal and cross-appeal to the Superior Court.
Success was also divided on the appeal. The Court of Appeal granted
leave to appeal on the sole issue of the arbitrator's award of
retroactive child support, which had been overturned by the appeal
Refusal to Hear the Respondent
The Court refused to hear the Respondent's submissions as he
not paid costs orders;
unilaterally stopped paying child support; and
failed to produce his income tax returns.
The Court held that "In these circumstances, [...] to hear
the respondent's submissions would be to reward his deliberate
and wilful misconduct" (para. 6).
Reviewing an Arbitrator's Decision to Award Child
The Court of Appeal then held that the appeal judge had erred in
overturning the award of child support. In doing so, it considered
the degree of deference owed to the arbitrator and the appropriate
remedy when the arbitrator has arguably ignored a key legal
our view, the appeal judge erred in law in two ways. First,
he applied the wrong test to the sufficiency of the
arbitrator's reasons. He cited criminal cases without regard to
the goals of efficiency and expediency in the arbitration context.
These goals have particular significance in a family law matter
where finality is important –especially when a child is
involved. Moreover Hickey v. Hickey  2 S.C.R. 518
provides that significant deference must be given in relation to
the determination of support orders. This principle recognizes that
the discretion in making the order is best exercised by the person
who heard the parties directly. This is of particular significance
when the parties select an arbitrator well known and respected for
his expertise and experience in the area of family
law. In any event, in our view, the reasons
although brief, do explain how he calculated the award and why he
made it. [Emphasis added]
The second error of the appeal judge was to determine as a matter
of law that DBS [an important case in family law
concerning retroactive child support] applied to the circumstances
here, and having made that determination, to disallow the award
without performing the analysis himself or referring the matter
back to the arbitrator for the analysis.
In our view, the retroactive child support award should
be referred back to the arbitrator. He will determine
whether the criteria of DBS apply and if so, he is in the
best position to determine whether or not his award requires
adjustment and if so by how much. [Emphasis added]
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