CRW v SJA, 2018 ABQB 1041

Court of Queen’s Bench of Alberta Citation: CRW v SJA, 2018 ABQB 1041 Date: 20181219 Docket: 4801 164631 Registry: Calgary Between: C.R.L.W. Plaintiff/Respondent - and - S.J.A. Defendant/Appellant _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice C.S. Brooker _______________________________________________________ Introduction [ 1 ] The parties are the parents of a young boy, E., now four years of age. On May 6, 2015, pursuant to a Consent Order, the parties entered into a Parenting Coordination Agreement with Ms. Judy Bachmann. The Agreement gave Ms.

Bachmann arbitration authority under the Arbitration Act to make decisions about parenting issues and impose them on the parties, if they could not reach a mediated resolution. [ 2 ] In October 2015, the father made a formal request for arbitration because the parties could not agree on a parenting schedule, in particular, how to increase the father’s parenting time with E. After much discussion about the process, which I will describe in more detail below, and a multi-day arbitration hearing, Ms. Bachmann as Arbitrator, issued a Final Arbitration Award on May 6, 2016.

The Award recommended a graduated increase in the father’s parenting time over a four week period, leading to a shared parenting arrangement in which each parent had E in their care for an approximately equal amount of time.

[ 3 ] The mother immediately filed an appeal of the Award. She seeks to have the Award and its associated costs award set aside on the grounds the Arbitrator made numerous errors of law and breached the principles of natural justice and the duty to act fairly and impartially. In particular, the mother alleges the Arbitrator failed to apply the best interests of the child test, in that she overemphasized the maximum contact principle and erred in ordering a shared parenting arrangement in a high conflict situation. She further alleges the Arbitrator failed to consult the parenting expert, Ms.

Wotherspoon, as required by the Consent Order, and failed to follow the process and procedure for the Arbitration set out in the Agreement. Finally, the mother argues the Arbitrator erred in her costs award and did not engage in a fair and equitable process. She seeks an order setting aside the Award and returning to the pre-Award parenting arrangement. [ 4 ] The father submits the Arbitrator did not err. He asserts that she properly considered only the best interests of the child in making her Award and correctly characterized and applied the law regarding high conflict relationships.

He submits that some of the mother’s grounds of appeal do not amount to errors of law, which is the only basis upon which the Award may be challenged. [ 5 ] In May 2016 and again in December 2016, the mother applied for a stay of enforcement of the Award. She was unsuccessful in both of these applications. In rejecting the stay application on May 27, 2016, Justice Romaine imposed the parenting

schedule set out in the Award. Justice Erb rejected the further stay of enforcement application on December 15, 2016. It is my understanding that the parties have followed the parenting

schedule set out in the Award. [ 6 ] At the hearing before me, the mother sought to admit fresh evidence regarding the child’s condition, as the parties disagree regarding the extent of his disabilities. I rejected this application. I must not retry the case based on fresh evidence and I note that the parties proceeded solely on the basis that the appeal was limited to errors of law. [ 7 ] The issue before me is whether this Court should set aside the Award. I find that the Award should stand and this appeal should be dismissed. Standard of review on appeal [ 8 ]

Section 44 of the Arbitration Act , RSA 2000, c A-43 provides for appeals of arbitration awards: 44(1) If the arbitration agreement so provides, a party may appeal an award to the court on a question of law, on a question of fact or on a question of mixed law and fact.

(2) If the arbitration agreement does not provide that the parties may appeal an award to the court on a question of law, a party may, with the permission of the court, appeal an award to the court on a question of law. [ 9 ] Paragraph 11 of the parties’ Agreement states as follows: The award of the Parenting Coordinator on the issues submitted when made and executed by her shall be final and binding upon the Parties and enforceable in any court of competent jurisdiction and in the same manner as any other judgment of the said court subject however to the rights of appeal of Section 44(1) of the Act and as per the terms of the Order of The Honourable Mme.

Justice S. M. Bensler pronounced on May 1, 2015. [ 10 ] While this clause, given its specific reference to section 44(1), seems to suggest that the Agreement permitted appeals on questions of law, fact, or mixed law and fact, the parties limited their appeal to questions of law alone. Regardless, I also found no appreciable errors of fact or mixed law and fact. [ 11 ] The standard of review for errors of law is that of correctness; the arbitrator must get the law right.

As stated by Justice Nation in Metcalfe v Metcalfe , 2006 ABQB 798 at para 22 : ...Generally stated, an incorrect statement of the legal standard, or test, or an application of incorrect factors in applying the law to the facts is clearly an error of law. The law must not only be stated correctly, but that correct

interpretation of the law applied to the facts, when engaging in applying the law to the facts. Where there is a discretion involved in applying the law to the facts, the application of the discretion is not a question of law, but a question of mixed law and fact.

However, if a wrong legal principle is used in the application of the law to the facts, or in the exercise of the discretion, there is an error of law. [ 12 ] Justice Hutchison commented to similar effect in Seneviratne v Seneviratne , 1998 ABQB 289 at para 45 : The correctness or judicial standard is to be applied to the questions of law which became material in this case for determination by the arbitrator and which required the correct application of the relevant sections of the Divorce Act as interpreted by recent case law.

The arbitrator is required to get the law right. ... [ 13 ] The mother also alleges as errors of law breaches of the duty to be fair, to consider all relevant evidence, and to respect the rules of natural justice. She submits these errors are reviewable on a standard of reasonableness. The father disagrees with the suggestion that the requirement to consider all evidence is a breach of natural justice. [ 14 ] I find that a breach of the duty to be fair and to respect the rules of natural justice is reviewable on the standard of correctness: Grand Central Properties Inc v Cochrane (Town), 2013 ABCA 69 at para 14 .

The requirement to consider all the relevant evidence is reviewable on a standard of correctness; however, the weight assigned to evidence must be given deference absent palpable and overriding error: Canpar Holdings Ltd. v Petrobank Energy and Resources Ltd. , 2011 ABCA 62 at para 11 . Did the Arbitrator improperly apply the best interests of the

child test? [15] The mother argues that the Arbitrator overemphasized the maximum contact principle and in so doing, failed to properlyconsider the best interests of the child. She submits the Arbitrator started with a correct statement of the law.

At paragraph 26 of theAward, the Arbitrator stated that “the only test when considering custody and access is the best interests of the child, and only the bestinterests of the child must be considered.” The mother submits that the Arbitrator then made an incorrect statement about the maximumcontact principle and applied the law incorrectly relying on that incorrect statement. [16] At paragraph 27, the Arbitrator stated that “the other principle that is paramount when considering the best interests of thechild is the ‘maximum contact principle’, as set out in the Divorce Act.” She then quoted section 16(10) of the Divorce Act, which statesthat “the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistentwith the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody issought to facilitate such contact.” [17] In argument, the mother pointed to the eleven factors set out in the Family Law Act, SA 2003, c F-4.5 that a Court shouldconsider in determining the best interests of the child and argued that the Arbitrator did not consider E’s interests as a whole, instead sheelevated the maximum contact principle to equal status with the best interests of the child.

The mother submits the Divorce Act onlyobliges the judge to respect the maximum contact principle to the extent it matches and serves the child’s best interests. She argues thatif other factors show that it would not be in the child’s best interests to have maximum contact with both parents, then the court can andshould restrict contact.

She argues the Arbitrator’s error is obvious in that she decided that a child who was not yet two years old andwho had never spent an overnight with his father should, over the course of four weeks, graduate to spending three consecutiveovernights per week. [18] As the mother states in her brief, the Supreme Court of Canada in Gordon v Goertz, (SCC), [1996] 2 SCR27 emphasized that the maximum contact principle is subsumed in the best interests of the child test. At para 24, the Court wrote: ...The “maximum contact” principle, as it has been called, is mandatory, but not absolute.

The Act only obliges the judge to respect itto the extent that such contact is consistent with the child’s best interests; if other factors show that it would not be in the child’sbest interests, the court can and should restrict contact... [Emphasis added.] [19] I find the Arbitrator appropriately applied the law in relation to the best interests of the child. The Arbitrator stated that thesole consideration is the best interests of the child.

Although she mentioned the maximum contact principle as a relevant consideration,loosely describing it as “the other principle that is paramount when considering the best interests of the child”, I find that an examinationof the entirety of her reasons reveals no legal error. First, I note that the maximum contract principle is the only factor specificallyidentified in

section 16 of the Divorce Act as an aspect of the best interests of the child test. Unlike the Family Law Act, the Divorce Actdoes not set out a long list of factors to be considered in determining what is in the best interests of the child. Second, I find that inapplying the law to the facts, the Arbitrator considered the maximum contact principle only as it related to E’s best interests. [20] In accordance with the case law, the Arbitrator considered whether there was evidence to show that contact with the fatherwas against E’s best interests. She concluded there was none.

The father had had parenting time with E since his birth and there wasnothing to suggest E had been harmed or neglected by him. The parenting expert working with the parties, Ms. Wotherspoon, reportedthat the father exhibited good parenting skills whenever she observed him with E.

The Arbitrator also noted that the father may be in aunique position to assist E with some of his speech delays, since he and many of his family members experienced similar difficulties intheir own early childhood development. [21] Although the mother put forward evidence regarding E’s distress upon return to her care, the Arbitrator did not place muchweight on this evidence, finding it was self-serving, in particular the evidence that came from the mother’s friend. Furthermore, theevidence on its face did not establish causation.

The Arbitrator noted that there was nothing to suggest that E’s difficulties transitioningback to his mother’s care were due to inappropriate parenting by the father. [22] It is clear from the concluding paragraphs of the Award, at paras 93-96, that the Arbitrator was alive to the case law and theconsiderations relevant to applying the best interests of the child test: In hearing and reviewing all the evidence and submissions, taking into account everything that has occurred during the parentingcoordination process; taking into account the research around attachment, development, overnights for young children in a separatedfamily, and the importance of fathers; and, relevant caselaw, it would be in E’s best interests to have a consistent and regularparenting

schedule that provides him with some routine, structure and maximum contact with both parents. Furthermore, such aparenting

schedule will promote stability to support his current development concerns. Pursuant to s. 16(10) of the Divorce Act, I must also take into consideration the willingness of the person for whom custody is sought tofacilitate such contact. [The mother] wishes to reduce [the father’s] parenting time to an amount of time that it less than what wasoriginally agreed upon in May of last year which in my view is not facilitating maximum contact. [The father] wishes to increase hisparenting time and continue to facilitate contact between child and mother. ...

It would be in E’s best interests if he had more time with [the father] structured in a way that fits within E’s needs, and theparties’ current work schedules and lifestyles. Both parents are very capable and loving parents to E. [23] The Award recognized the need for a graduated

schedule to increase the father’s parenting time. This too illustrates a focus onthe best interests of the child. The parenting

schedule in the Award increased the father’s parenting time, but it minimized the number ofweekly transitions, which accorded with the evidence that transitions were difficult for E.

[ 24 ] I also note the Arbitrator had a lengthy involvement with these parties as part of the Parenting Coordination process that began almost a year earlier in May 2015. As such, she had a great deal of information upon which to base the best interests of the child assessment. I find she made no errors. Did the Arbitrator improperly apply the law regarding high conflict families? [ 25 ] The mother submits that the Arbitrator should not have ordered a shared parenting arrangement given the high conflict between the parties.

She submits the case law is clear that shared parenting is inappropriate in high conflict cases, subject to the exception that one parent is the author of the conflict and should not benefit from creating it. [ 26 ] In her Award, the Arbitrator clearly notes, based on her observations of the parties throughout the Parenting Coordination process, that they were in a high conflict situation. She also comments on the sources of the conflict and the steps they have taken to reduce it. [ 27 ] I find the Arbitrator correctly considered and applied the case law regarding high conflict relationships.

She specifically mentioned CEC v MPC , 2006 ABCA 188 , cited by the mother, for the proposition that joint custody and shared parenting arrangements ought not to be ordered where the parents are in substantial conflict with each other. She also quoted from Justice Pentelechuk’s decision in AJU v GSU , 2015 ABQB 6 , which set out an exception where the conflict is overwhelmingly one-sided. Justice Pentelechuk questioned whether a party should be able to point to lack of communication and cooperation to defeat an application for shared parenting when that parent is the significant source of the problem.

She quoted from a Saskatchewan Court of Appeal decision that held it was “inherently unfair to relegate one parent to access-only parent status when the other parent refuses to take steps to improve their poor communication or because they insist on fuelling the acrimony .” [ 28 ] While noting the mother’s evidence that 1) she had taken the Parenting After Separation Seminar, the High Conflict Parenting After Separation Seminar, and the Focus on Communication course; 2) she had hired a communication coach who reviews and edits her emails before she sends them to the father; and, 3) she uses her counsel to write emails on her behalf, the Arbitrator made the factual determination, at paragraph 77, that the mother “fuelled the acrimony and ratcheted up the conflict”.

This conclusion was open to her on the evidence. Having found that one party was responsible for exacerbating the conflict, she correctly applied the law allowing for shared parenting in such circumstances. [ 29 ] The Arbitrator noted that the parties had demonstrated a willingness to work together, in that they were participating together in E’s medical care and assisting him with what was necessary to address his developmental concerns.

Also, it bears mentioning that the parties were in Parenting Coordination with the Arbitrator based on their stated willingness, as set out in the Consent Order, to learn to work together in E’s best interests. Furthermore, the Consent Order granted them joint custody, which imposed joint legal responsibility for all major decisions affecting E.

I also note in passing that Justices Romaine and Erb refused to stay the Award, thus implicitly affirming the shared parenting arrangement as appropriate until the appeal could be heard. [ 30 ] The Arbitrator made no error in applying the law regarding high conflict families. She considered the entirety of the parties’ and E’s situation and made an Award that was in the best interests of the child. Did the Arbitrator fail to consult the parenting expert as required by the Consent Order? [ 31 ]

Section 33 of the Arbitration Act requires arbitrators to decide disputes in accordance with the arbitration agreement.

Section 45(

g) permits the Court to set aside an arbitral award if the procedures followed did not comply with the Act or with an agreement. In this case, the Agreement incorporated the terms of the Consent Order. Paragraph 9(

e) of the Consent Order required the Arbitrator to consult with Ms. Wotherspoon, the parenting expert, “when making any determination on any issue in this proceeding”, unless the parties agreed otherwise or the parenting expert was not available within a reasonable time. The Arbitrator had sole discretion to determine what amounted to a reasonable time in the circumstances. [ 32 ] The mother argues the Award must be set aside because the Arbitrator did not follow the Agreement, in that she failed to engage in the required consultation with Ms. Wotherspoon. She argues the Consent Order required Ms.

Wotherspoon to have a consultative role: it was not simply a question of inviting her to give evidence, but a requirement that she be consulted and assist the Arbitrator in making a decision. [ 33 ] The mother points to paragraphs 19 and 20 of the Consent Order to support her position. Paragraph 19 suggests an annual review of the parenting plan set out in the order. It further proposes that Ms. Wotherspoon facilitate such a review. Paragraph 20 provides that the parenting plan may be reassessed by the Parenting Coordinator, Ms. Bachmann, at any time, in consultation with Ms.

Wotherspoon, “if concerns arise for E in regard to separation, unification, disruption in sleeping or feeding habits, or deficits noted on the Ages and Stages Questionnaire to assess development.” [ 34 ] The mother submits the Arbitrator’s consultation with Ms. Wotherspoon amounted to sending one email asking when she last saw E. The mother argues that the failure to meaningfully consult with Ms. Wotherspoon goes to the heart of the matters put before her. She further submits that the Award is in stark contrast to the

schedule recommended by Ms. Wotherspoon in October 2015. At that time, Ms. Wotherspoon had recommended that the father’s parenting time should increase slowly and that they should observe E’s progress. The mother submits that the Arbitrator did not follow this recommendation and increased the father’s parenting time to equal parenting in far too short a time frame.

[ 35 ] The father argues that this ground of appeal does not raise a question of law. Furthermore, he submits the Arbitrator had full control of the procedure related to the Arbitration and argues that the Consent Order does not require the Arbitrator to give Ms. Wotherspoon decision making authority over the parties. The Consent Order merely requires the Arbitrator to consult with Ms. Wotherspoon. He submits the Arbitrator concluded that she already had the information Ms.

Wotherspoon could provide, based on the prior consultation in making a parenting award in December 2015. [ 36 ] The correspondence between the parties in setting the procedure for the Arbitration reveals that they addressed the issue of Ms. Wotherspoon’s evidence. The mother’s position was that Ms. Wotherspoon should give evidence as a parenting expert, without the requirement to be cross-examined. The father took the position that if Ms. Wotherspoon provided evidence in her capacity as expert, then she should be cross-examined. The correspondence suggests that the parties subsequently accepted that Ms.

Wotherspoon would not give expert evidence. It seems there was a clause in her agreement with the parties prohibiting her from doing so. [ 37 ] Initially, Ms. Wotherspoon agreed to answer questions from the Arbitrator, in the presence of counsel for the parties. She then changed her position and stated that she would not provide answers unless she had an opportunity to review the questions in advance. Eventually, the Arbitrator proposed that she ask Ms. Wotherspoon when she last saw the parties. The mother’s counsel objected, stating that Ms.

Wotherspoon needed to be asked “what she thinks about the proposed parenting schedules from each parent based on what she knows and what she has observed. She needs to be provided with updated medical information regarding E. She needs to be asked about proposed child care from [the father]. She needs to be asked about transitions and what she observed of E pre and post parenting time.” [ 38 ] Father’s counsel disagreed, stating that since Ms. Wotherspoon would not testify, her answers could not be explored. He suggested that mother’s counsel was asking Ms. Wotherspoon to provide opinion evidence.

Counsel acknowledged the Consent Order stated that Ms. Wotherspoon would be consulted, but suggested that it is up to the Arbitrator to determine the extent of that consultation. [ 39 ] The Arbitrator responded to counsel’s emails, essentially agreeing with the father that the mother was trying to bring in expert opinion through the back door. She noted that Ms. Wotherspoon was not being called as an expert witness. The parties had agreed that she would not be called as a witness at all, thus she could not be forced to participate. The Arbitrator stated she would ask Ms.

Wotherspoon when she last observed E with each parent. If her most recent observations were before the last time the Arbitrator spoke with her (in other words, before the December parenting award), then the Arbitrator would not ask any further questions. [ 40 ] Upon learning that Ms. Wotherspoon had last observed E with his father on September 4, 2015 and E with his mother on September 21, 2015, the Arbitrator decided it was unnecessary to consult with her further. The Arbitrator had received detailed evidence from Ms. Wotherspoon prior to making an earlier parenting award in December 2015. Given that Ms.

Wotherspoon had not seen the parties since the previous information was provided, the Arbitrator concluded she would have no new information to share. She explained her decision to the parties as follows: ...I have consulted with Ms.

Wotherspoon, as per the Consent Order of May 1, 2015, as follows: 1. on a number of occasions from the beginning of the parenting coordination process and leading up to the December 7 th Award, all of which the parties were aware; and she provided her observations of the child, the parties’ relationship with the child and each other for that time period (which information the parties agreed can be used as part of the arbitration process); and 2. recently, when I requested from her the dates that she last observed E with each parent, which she stated was September 4, 2015 and September 21, 2015. ...

Neither party has called Ms. Wotherspoon as a witness, and both counsel clearly advised that Ms. Wotherspoon indicated that she would not provide a report nor give evidence at any type of hearing. Ms. Wotherspoon has clearly stated in her email of April 11, 2016, that she cannot comment on any proposed parenting time as she has not conducted a comprehensive assessment in this matter. ... [ 41 ] Ms.

Wotherspoon’s comment, referenced above, was contained in an email she wrote on April 11, 2016 to the Arbitrator and the parties’ counsel: ...Having not conducted a comprehensive assessment, I can provide input regarding the following: – how to ease the transitions between the two households, – how to support the child to adjust to changes in the parenting schedule, – what to watch for – such as red flags of problems, – I can suggest strategies to support the child in transitions, strategies to manage problems that arise (such as sleep food issues); Please be aware that I am not able to comment on the proposals re parenting time... [Emphasis added.] [ 42 ] It is worth noting that the Consent Order gave Ms.

Bachmann sweeping powers as Parenting Coordinator/Arbitrator.

Section 8 set out the scope of her role: The scope of the role of the Parenting Coordinator shall include the following: (

a) Assist with implementation of and amendments to the parenting

schedule set out herein; (

b) Address any anticipated conflicts in E’s scheduling that may occur from time to time;

(

c) Assist with scheduling E’s activities; (

d) Develop any additional clarifying clauses that may be required given situations and events that unfold that were not initially anticipated when the parenting plan was developed; (

e) Assist the parties to communicate more effectively; (

f) Assist in the maintenance of E’s relationship with each parent; (

g) Assist with the exchange of information about E; (

h) Resolve conflicts between the parties concerning E’s participation in recreation, enrichment, or extracurricular activities and programs, including conflicts about the costs related to those activities or programs; (

i) Address movement of E’s clothing, equipment, toys and personal possessions between households; (

j) Address travel arrangements for E including during holidays; (

k) Address appropriate child-friendly activities and provide direction to the parties about inappropriate child activities; (

l) Resolve conflicts concerning day-to-day health care and education matters; (

m) Assist the parties to develop and execute a plan for working towards a more cooperative form of parenting; (

n) Address any issue relating to the parenting exchanges; and (

o) Address any other ongoing parenting issues which may arise between the parties from time to time. [ 43 ] Paragraph 9 of the Consent Order gave Ms. Bachmann the following authority: The Parenting Coordinator: ... (

c) Shall have the authority to determine the protocol of all interviews and sessions and the power to determine who attends such meetings; (

d) Shall be permitted to speak with any of the past, current or future counsellor of either party; any past, current or future counsellor of E, including Evelyn Wotherspoon; family members; school teachers; health care professionals; and any other person who may have information about the parties and/or E if the Parenting Coordinator believes such information to be relevant, and to obtain all pertinent information regarding any parenting issue to be determined by the Parenting Coordinator; (

e) Shall consult with Evelyn Wotherspoon, an Early Childhood Mental Health Specialist, when making any determination on any issue in this proceeding, unless both of the parties agree in writing that this consultation is not required, the matter is an emergency, or Ms. Wotherspoon is not available within a reasonable time. The Parenting Coordinator shall have the discretion to determine what is an emergency or a reasonable time in the circumstances; (

f) May observe E with the parties separately and/or together; (

g) Shall be entitled to pursue matters submitted to her by a meeting with the parties jointly and/or individually, to review written materials, and to consider any other information relevant to the matter to be resolved; ... [ 44 ] This list makes it clear that Ms. Bachmann was given extensive authority to seek out the evidence and information she needed to make decisions for the parties. Ms. Wotherspoon’s role, by contrast, as set out in paragraphs 19, 20 and 9(

e) of the Consent Order, was to carry out an assessment of E’s emotional and developmental needs on an annual basis and to be consulted when Ms. Bachmann made parenting decisions. [ 45 ] I find the Arbitrator satisfied the requirement in the Consent Order to consult with Ms. Wotherspoon. Consult means to seek information or advice from. The Arbitrator sought information from Ms. Wotherspoon and learned that she already had the most up-to- date information Ms. Wotherspoon could provide. As the father submits, the Arbitrator was not required to hand over responsibility for decision making to Ms. Wotherspoon.

The Arbitrator alone was vested with decision making power. The procedure followed in this case satisfied the requirement in the Agreement; there is no need to set aside the Award on this basis. Did the Arbitrator fail to provide an equal and fair arbitration, or fail to respect the principles of natural justice, or fail to act impartially, as required by sections 11, 19, 20, 33 and 45(d), (

f) and (

g) of the Arbitration Act ?

[ 46 ]

Section 19 of the Arbitration Act requires an arbitrator to ensure a fair and equitable process. In particular, an arbitrator is charged with treating the parties equally and fairly and must give each party an opportunity to present their case and respond to the other’s party’s case.

Section 11 requires an arbitrator to be independent of the parties and impartial as between the parties.

Section 45(

f) provides that a failure to ensure a fair and equitable process is a basis for setting aside an award. [ 47 ] In Flock v Flock , 2007 ABQB 307 at para 49 , leave to appeal denied 2007 ABCA 287 , Justice Horner concluded the protections under sections 45(

f) should be thought of as “the right to a fair hearing, free from bias and free from procedures which confer relative advantages or disadvantages on one of the parties.” [ 48 ] The mother argues that the Arbitrator’s conduct displayed inherent unfairness, bias, and breached the rules of natural justice. First, she points to the Arbitrator’s failure to consult Ms. Wotherspoon. I find this complaint has no merit, for the reasons given above. Second, she contends the Arbitrator erred in awarding costs against her. I will address this issue below.

Third, she submits the Arbitrator imposed a process that was counter to what was set out in the Agreement. [ 49 ] The Agreement granted the Arbitrator sole discretion to set the procedure for arbitration and to proceed in the absence of cooperation or attendance by one of the parties. The Arbitration Act at sections 20 to 22 also grants the Arbitrator authority to set the procedure for arbitration, along with the time, date, and place.

The Arbitrator issued a procedural order on January 29, 2016 setting out the procedure for the Arbitration. [ 50 ] I find there was extensive correspondence between the Arbitrator and counsel regarding the procedure to be followed in this Arbitration. On January 26, 2016, the mother’s counsel advised that the mother would be bringing an application to court to remove the Arbitrator. On January 27, 2016, the father’s counsel responded asking the Arbitrator to set the procedure and provide a date for the Arbitration.

The father noted that paragraph 5 of the Consent Order prohibited unilateral termination of the Parenting Coordination Agreement. On January 29, 2016 the Arbitrator wrote to the parties, noting that the Arbitration may proceed in one party’s absence. She then set out the process and dates for the Arbitration and provided deadlines for affidavits, questioning, and written briefs. [ 51 ] Subsequently, there was extensive correspondence regarding various aspects of the process and procedure, including length of affidavits, appropriateness of cross-examination, provision of written briefs, etc.

The mother took the position that there should be no variation from the process set out in the Agreement. [ 52 ] I find that the Agreement set out the basic parameters of the process. It provided guidelines regarding who would present evidence first and granted the Arbitrator the right to examine any witnesses.

The Agreement also gave the Arbitrator authority to request written submissions and to require the parties to provide copies of documents to one another. [ 53 ] The actual and practical differences between the process outlined in the Agreement and the process outlined in the January 29 procedural order and subsequent correspondence, in particular, the further letter dated March 9, 2016, were small. They related to how the parties would call witnesses; the time frames for filing affidavit evidence; and, the provision of timelines for questioning.

The most significant difference was the Arbitrator’s decision to require a court reporter. [ 54 ] Paragraph 5.14 of the Agreement states that there shall be no court reporter to transcribe the evidence and that neither of the parties will record the proceedings. When it came to light during the taxation of the Arbitrator’s account that the mother had been surreptitiously recording some of the parenting coordination sessions in violation of the Agreement, the Arbitrator decided that in the circumstances, a court reporter was necessary.

Given the Arbitrator’s legislated and contractual authority to manage the arbitration process, I find no legal error in the Arbitrator’s decision to impose this requirement.

I agree with the father that in the circumstances, adopting a more formal process was the only way to substantively address the issues between the parties. [ 55 ] The mother makes further allegations that the hearing itself was not fair and equitable because the Arbitrator allegedly allowed counsel for the father to dominate the proceedings, she failed to raise the law society allegations, and she unreasonably disregarded the evidence supporting the mother’s position that E is detrimentally affected by visitation with his father and that she downplayed the seriousness of E’s medical condition.

The mother argues that these failures to appreciate the evidence resulted from an apparent bias against her. The mother submits that the arbitral process was negatively affected by these errors and irregularities such that they rendered it inherently unfair, inequitable, and in breach of the rules of natural justice or procedural fairness. [ 56 ] I find none of these allegations have merit. I find that most of the examples of the Arbitrator’s alleged bias relate to determinations that are findings of fact, rather than errors of law, or examples of unfairness. As such, they do not give rise to a ground of appeal.

Furthermore, the issue of bias is res judicata , since the mother already brought an unsuccessful application before Justice Park alleging that the Arbitrator was biased. [ 57 ] The Parenting Coordinator’s was to act as a neutral third party, mediator and arbitrator (as needed), to assist the parties to expeditiously resolve parenting issues that arose in a manner consistent with their son’s best interests and in such a way as to minimize parental conflict. I find that she did so while navigating the high conflict situation between the parties.

Costs [ 58 ] The mother argues that the Arbitrator erred in law in awarding what amounts to solicitor and client or punitive costs against the mother without adequate reasons. Also, the mother alleges that failure to provide an opportunity to speak to costs, as was requested by her counsel, was an error. The mother states in her submissions that the Arbitrator’s “palpable error in appreciating the facts” became an error of law on costs. [ 59 ] The mother relies on Chemerinski Estate v Richter , 2010 ABQB 388 at para 13 , affirmed 2010 ABCA 329 , in which Justice Sanderman, quoting from J.

Brian Casey, Arbitration Law in Canada: Practice and Procedure , explained that an award of costs may raise an error of law:

The award of costs by an arbitrator may raise a question of law notwithstanding the award of costs is discretionary. As with all discretionary decisions, it must have been exercised in accordance with law – ie., the arbitrator must not have taken into account extraneous facts in reaching the decision.

If the exercise of the arbitrator’s [discretion] was not in accordance with law then a question of law has been raised. ... [ 60 ] The mother further relies on Knudson v Knudson , 2015 ABCA 398 at para 16 , in which the appellate court stated that “a discretionary decision on costs may be set aside if an appellate court finds that a judge has misdirected herself on the applicable law or made a palpable error in the assessment of the facts.” [ 61 ] The father submits this ground of appeal should be rejected because it is not an error of law.

He points to Justice Nation’s decision in Arnason v Arnason , 2011 ABQB 393 at para 27 , in which she rejected an appeal from an award of costs after arbitration on the grounds it was not a legal error: “The costs award results from an exercise of a discretion clearly granted to the Arbitrator.” [ 62 ] The father submits that the Arbitrator had full discretion to order costs and that her Award encapsulated the extensive steps necessary to facilitate the hearing of the matter, as well as its length and complexity.

He relies on Metcalfe , supra , to support his position that the Arbitrator’s award of costs is not reviewable on appeal: “...where there is a discretion involved in applying the law to the facts, the application of the discretion is not a question of law, but a question of mixed law and fact.” [ 63 ] The Agreement provides that if costs are to be awarded “they will be applied in accordance with

section 53 of the Arbitration Act , and as per the terms of the Order of The Honourable Mme. Justice S.M. Bensler pronounced on May 1, 2015.”

Section 53 of the Arbitration Act gives the Arbitrator a great deal of discretion: 53

(1) An arbitral tribunal may award the costs of an arbitration.

(2) The arbitral tribunal may award all or part of the costs of an arbitration on a solicitor-and-client basis, a party-and-party basis or any other basis but if it does not specify the basis, the costs shall be determined on a party-and-party basis.

(3) The costs of an arbitration consist of the parties’ legal expenses, the fees and expenses of the arbitral tribunal and any other expenses related to the arbitration. ... [ 64 ] The Consent Order stated at paragraph 9(

i) that the Parenting Coordinator, in her role as arbitrator, shall be “entitled to award costs to or against either party or allocate any costs incurred, at his/her sole discretion.” [ 65 ] The combined effect of the legislation and Agreement suggest that the Arbitrator had full discretion as to costs and may not be bound by the traditional rules regarding the award of costs. In general at law, party-and-party costs are the starting point for any costs award. In the normal course, increases from that amount may be awarded only in rare and exceptional circumstances. Yet here, the “costs of an arbitration” is a defined term and includes more than the usual

schedule of costs in court cases. In addition to the parties’ legal expenses, it includes the fees and expenses of the arbitral tribunal and any other expenses related to the arbitration. [ 66 ] The Arbitrator explained her rationale for awarding costs to the father as follows: (a) [The father] was substantially successful in his application; and (b) [The mother] unnecessarily delayed and lengthened the arbitration process by disputing and disregarding the Arbitrator’s ruling and directions, resulting in increased costs. [ 67 ] The father suggests that the costs award was reasonable and within the Arbitrator’s discretion. He submits that if costs had been assessed under Column 1 of

Schedule C for what turned into the equivalent of a five-day hearing with briefs and questioning, they would have amounted to $11,300. The Arbitrator awarded $20,000 of costs, inclusive of disbursements, which included court reporter fees, transcripts and extensive copying. Given the broad definition of “the costs of an arbitration” in the legislation, I cannot find that the amount awarded is in error. [ 68 ] The mother also submits that the Arbitrator breached the rules of natural justice and procedural fairness in failing to give her an opportunity to speak to costs when she specifically requested it.

However, the evidence shows that what her counsel actually sought was an opportunity to address her own claim for costs. Her counsel stated the following at the hearing: We are asking that the costs on this matter, due to the length that we anticipate this process happening, be presented to you or that our application for costs , be presented at a separate hearing at a separate time, but that we be entitled to costs in excess of the amount of $30,000. [emphasis added] [ 69 ] In her written submissions, the mother again asked that she be given an opportunity to speak to costs.

The submission is contained within a paragraph arguing in favour of the mother’s proposed parenting schedule: ...We ask that the Arbitrator implement the parenting

schedule suggested by Ms. Wotherspoon for a period of one full year. We further submit that the costs of this arbitration should be dealt with separately once a decision is made. In the event the Arbitrator does decide costs, at this time we submit that the only costs to be considered are those in relation to this Arbitration. Our client did not request this Arbitration, or the process in which it has occurred. Our client made numerous efforts to resolve this without requiring the Arbitration.

Our client has incurred in excess of $30,000.00 to participate in this Arbitration and is asking that she recoup said cost from [the father]. We submit that our affidavit, oral evidence, and both briefs including all case law and literature support our clients request for the parenting

schedule proposed by Ms. Wotherspoon. [ 70 ] I find that the Arbitrator did not breach any rules of natural justice or procedural fairness in failing to seek further submissions

as to costs. She had full discretion to award costs to the more successful party. The mother was not the successful party, so there was no requirement to hear from her regarding the costs she had incurred in taking

part in the arbitration. I also find that the mother’s anticipated costs claim suggests that the Arbitrator’s award of costs to the father was within an appropriate and reasonable range. [ 71 ] The mother has not demonstrated any error in the Arbitrator’s costs award. Conclusion [ 72 ] The mother’s appeal of the Arbitration Award is dismissed, with costs. Dated at the City of Calgary, Alberta this 19 th day of December, 2018. C.S. Brooker J.C.Q.B.A. Appearances: Deborah L. Shennette Hoffmann Law for the Appellant Aaron M. Vanin RCMV LLP for the Respondent