Comeau v. Comeau, 2011 ABQB 69

Court of Queen ’ s Bench of Alberta Citation: Comeau v. Comeau, 2011 ABQB 69 Date: 20110222 Docket: 4803 103546 Registry: Edmonton Between: Marina Denice Comeau Applicant - and - Joseph Jean-Baptiste Pierre Comeau Respondent _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] Ms. Comeau asks for the enforcement of a binding arbitration award issued on May 26, 2010. Mr. Comeau objects on the basis that, after the arbitration award was issued, material new facts came to light which established that, during the period covered by the arbitral award, one of the parties’ children was not, in fact, a “child of the marriage” because that child was not in full-time attendance at a post-secondary institution. [ 2 ] Mr. Comeau does not come within any of the exceptions outlined in s. 3 of the Arbitration Act ; therefore, Ms.

Comeau is entitled to a judgment enforcing the arbitral award. However, since the court is satisfied that there is a real issue to be tried concerning the status of the parties’ daughter Celina, pursuant to its authority under s. 49(8) of the Arbitration Act the court stays that portion of its

judgment relating to child support for Celina from January 1, 2010; it is a condition of the stay that, within 30 days from the date of the release of this decision, Mr. Comeau will have filed and served on Ms. Comeau a notice of application relating to the status of Celina. If Mr. Comeau fails to file and serve such a notice, then the stay is lifted and the entire judgment will be enforceable as a judgment of this court. Cases and authority cited [ 3 ] By the court: Subway Franchise Systems of Canada, Ltd. v Esmail 2005 ABCA 350 , [2005] A.J. 1474 1. Background

a) Factual [ 4 ] In January, 2010, the parties signed a binding arbitration agreement pursuant to which they would resolve their dispute over various family issues including child support and spousal support.

Schedule A to the agreement contains the following clause: Regarding implementation and enforcement of the decision, it is agreed that Pierre Boileau (Mr. Comeau’s then lawyer) shall prepare a form of Order for approval and consent by Ms. Comeau. Should issues arise with respect to the form of Order . . . and these issues concern

interpretation of the arbitration decision, then the parties agree to seek clarification . . . from the Arbitrator. [ 5 ] The arbitrator issued an award on May 26, 2010. [ 6 ] Around June 22, 2010, Mr. Boileau told Ms. Comeau that he was no longer representing her former husband. Therefore, on June 23, 2010, Ms. Comeau prepared a form of consent order and e-mailed it to Mr. Comeau for his consideration. [ 7 ] Mr. Comeau replied that he did not agree with the form of order presented basically because, since the arbitration, there were material new facts that affected his child support obligation.

In particular, he stated that the parties’ daughter Celina had ceased being a “child of the marriage” because she had not, in the period January 1, 2010 forward, been a full-time student at a post-secondary learning institution. Ms.

Comeau contends that the parties’ daughter remained a “child of the marriage” during the period in question. [ 8 ] When the parties approached the arbitrator about Celina’s situation, the arbitrator replied that hearing new evidence about Celina’s situation was outside the terms of the arbitration agreement, that she would be pleased to arbitrate that issue as well, but that a new agreement and new fees would have to be paid in order to get the new arbitration underway. [ 9 ] Ms.

Comeau then obtained an order from the case manager of the Queen’s Bench litigation allowing her to appear before any Justice in chambers to settle the award.

b) Legislative [ 10 ] The applicable provisions of the Arbitration Act read as follows: Enforcement of award 49(1) A person who is entitled to enforce an award made in Alberta or elsewhere in Canada may make an application to the court to that

effect.

(2) The application shall be made on notice to the person against whom enforcement is sought, in accordance with the Alberta Rules of Court, and shall be supported by the original award or a certified copy of it.

(3) The court shall give a judgment enforcing an award made in Alberta unless (

a) the 30-day period for commencing an appeal or an application to set the award aside has not yet elapsed, (

b) an appeal, an application to set the award aside or an application for a declaration of invalidity is pending, or (

c) the award has been set aside or the arbitration is the subject of a declaration of invalidity.

(4) The court shall give a judgment enforcing an award made elsewhere in Canada unless (

a) the period for commencing an appeal or an application to set the award aside provided by the laws in force in the province or territory where the award was made has not yet elapsed, (

b) an appeal, an application to set the award aside or an application for a declaration of invalidity is pending in the province or territory where the award was made, (

c) the award has been set aside in the province or territory where it was made or the arbitration is the subject of a declaration of invalidity granted there, or (

d) the subject-matter of the award is not capable of being the subject of arbitration under Alberta law.

(5) If the period for commencing an appeal, an application to set the award aside or an application for a declaration of invalidity has not yet elapsed, or if such a proceeding is pending, the court may (

a) enforce the award, or (

b) order, on such conditions as the court considers just, that enforcement of the award is stayed until the period has elapsed without such a proceeding being commenced or until the pending proceeding is finally disposed of.

(6) If the court stays the enforcement of an award made in Alberta until a pending proceeding is finally disposed of, it may give directions for the speedy disposition of the proceeding.

(7) If the award gives a remedy that the court does not have jurisdiction to grant or would not grant in a proceeding based on similar circumstances, the court may (

a) grant a different remedy requested by the applicant, or

(

b) in the case of an award made in Alberta, remit it to the arbitral tribunal with the court’s opinion, in which case the arbitral tribunal may award a different remedy.

(8) The court has the same powers with respect to the enforcement of awards as with respect to the enforcement of its own judgments. 1991 cA-43.1 s49 2. Mr. Comeau does not come within any of the exceptions set out in s. 49(3) and therefore Ms. Comeau is entitled to a judgment enforcing the arbitral award [ 11 ] Mr. Comeau agrees that he does not come within any of the exceptions set out in a. 49(3) of the Arbitration Act. [ 12 ] Therefore, Ms. Comeau is entitled to a judgment enforcing the award made by the arbitrator. 3.

The court can, and in the circumstances here should, stay a portion of its judgment enforcing the arbitral award [ 13 ] There is no doubt that a court can stay a portion of an arbitral award. As our Court of Appeal stated in Subway : 4 The appellant franchisor argues that the stay is barred by s. 49(3) of the Arbitration Act which says that the "court shall give a judgment enforcing an award made in Alberta", barring three exceptions plainly inapplicable here. Obviously the court has no right to decline to register on other grounds.

It is also very doubtful that any of the grounds to move to set aside an award exist here. The stay is said to be tantamount to a refusal to give a judgment enforcing the award. 5 However, we see nothing in the legislation which gives the judgment enforcing the award any more protection from a stay than any other judgment of the Court of Queen's Bench of Alberta. 6 The power of the Court of Queen's Bench to stay enforcement (execution) of its own judgment is undoubted. A number of cases seem to recognize that power at common law. So do Rule 341, and the Judicature Act, s. 17(1).

The Arbitration Act, s. 49(8), confirms that that all applies to arbitration awards' enforcement in the Court of Queen's Bench. 7 The logic of that suggests that a judgment enforcing an arbitration award could be stayed, and there are dicta to that effect by the English High Court in Far Eastern Shipping v. AKP Sovcomflot [1995] 1 Ll. R. 520. 8 There are a number of very different circumstances which would justify such a stay.

Since all manner of rights and their enforcement can be postponed or upset by estoppel, including promissory estoppel, that is a legitimate ground for a stay. [ 14 ] The only issue in this case is whether the court should exercise its discretion under s. 49(8) to stay a portion of its judgment.

In coming to the conclusion that, in the circumstances here, the court should exercise that discretion to stay that part of the award relating to Celina after January 1, 2010, the court notes, first, that the arbitrator herself indicated that there could be facts that would influence the proper award concerning Celina: para. 38 . . . This payment of support shall continue so long as Celina continues to reside with Denice Comeau and is a full time student.

para. 40 Child support for Celina should continue for the first four years of post secondary schooling which is consistent with the Minutes of Settlement. The key is that Celina must be dependant which means living with a parent and attending full time schooling. The parties agreed at the hearing that this support can be suspended for a year or so if Celina takes off time from her studies. Support will resume if she restarts her full time studies and maintains her primary residence with a parent. para. 70 For Celina, . . .

The monthly support . . . will [be] payable each and every month provided that Celina continues to primarily reside with Ms. Comeau and that Celina attends post-secondary school on a full time basis. . . . (Please note: the evidence before me at the time of the hearing was that Celina was enrolled on a full-time basis and was residing with Ms. Comeau. If you are unable to resolve any new issues that have arisen you will have to appear before me again in person.) [ 15 ] Second, the court notes that both Ms.

Comeau and Celina herself have provided evidence which appears to suggest that, in fact, Celina was not in full-time attendance at a post-secondary institution during the period in question, although both mother and daughter give explanations for this situation. [ 16 ] The issue of Celina’s attendance at a post-secondary educational institution was not a matter on which Mr. Comeau was required to return to arbitration: although the arbitrator sensibly offered to deal with that new evidence, the new evidence was not part of the original arbitration. In other words, new evidence does not constitute a need for

interpretation of an award on old evidence; new evidence requires a new award. In the result, Mr. Comeau was at liberty either to return to arbitration or to come to the court for resolution of the issue raised by the new evidence. [ 17 ] In

summary, the arbitrator’s award becomes a judgment of this court; the award is conveniently summarized in paras 70 and 71 of the award and those paragraphs become a judgment of this court. However, because of the issue to be tried concerning Celina’s status from January 1, 2010 forward, the portions of the award set out in para. 70(

b) relating to child support obligations relative to Celina beyond January1, 2010 are hereby stayed on the terms set out above. It would be unfair for the arbitrator’s award of child support in relation to Celina to become enforceable as a judgment of this court before the parties had the opportunity of having the court determine Celina’s status from January 1, 2010 onward. 3. Costs [ 18 ] Each party shall bear their own costs of this application. Heard on the 4 th day of February, 2011. Dated at the City of Edmonton, Alberta this 18 th day of February, 2011. J.B. Veit J.C.Q.B.A. Appearances:

Marina D. Comeau on her own behalf Pierre J. Comeau on his own behalf