Leroux v Leroux, 2021 ABQB 42

Court of Queen’s Bench of Alberta Citation: Leroux v Leroux, 2021 ABQB 42 Date: 20210115 Docket: 4801 153596 Registry: Calgary Between: Ashley Andrew Leroux Plaintiff/Respondent - and - Tammy Lynn Leroux also known as Tammy Lynn Shepard Defendant/Applicant _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice G.H. Poelman _______________________________________________________ I. Introduction [ 1 ] This decision arises from Ms.

Leroux’s appeal of an interim award for parenting issued by Blain Cellars, appointed by the parties and by court order as parenting coordinator and arbitrator. [ 2 ] Mr. Cellars’ award was merely one step in protracted proceedings between these parties. Thus, brief background facts are necessary for context.

[ 3 ] The parties married in October 2002 and separated in June 2011. They signed minutes of settlement in 2013 and a divorce judgment, on consent, was granted November 7 and filed December 5, 2013. [ 4 ] The parties have two sons, their oldest born in 2004, their youngest in 2006. II. History of Parenting Arrangements [ 5 ] A number of orders for parenting matters were issued before 2016, but are of no significance here. On March 4, 2016, Rawlins J. issued a consent order. It provided for joint custody and shared parenting. For the schedule, Mr.

Leroux was primary parent every second weekend from Thursday after school to Wednesday before school, with Ms. Leroux parenting the remainder of the time (aside from vacation periods). This arrangement has been referred to as an “8/6” schedule. [ 6 ] As part of the resolution of emergency protection order proceedings, on September 17, 2018 Antonio J. (now J.A.) suspended the March 4, 2016 order and granted a new consent order.

It appointed someone to act as a parenting coordinator and, where necessary, arbitrator; but a succession of orders followed, as one after another of the candidates chosen were unable to act. [ 7 ] During proceedings before Antonio J., the parties agreed to a graduated parenting

schedule developed with the children’s counsellor Michelle Meldrum, which worked towards a 10/4 parenting arrangement that, at least according to Ms. Leroux’s evidence, was primarily followed until the impugned arbitral award. I find nothing in Mr. Leroux’s evidence that contradicts this testimony. [ 8 ] Ultimately, on November 1, 2019 Jones J. granted a consent order varying the earlier orders.

He appointed “Blain Cellars and/or Monique Shields of the Canadian Co-Parenting Centres” with the earlier terms of the appointment orders carried over. [ 9 ] In addition to the orders, the parties signed a “Parenting Coordination Agreement” in February 2020, with Mr. Cellars signing as “representative for Canadian Co-Parenting Centres.” [ 10 ] Both Mr. Cellars and Ms. Shields were involved in meeting with the parties after their appointment. Ms. Leroux testified in her affidavit that she met with Mr. Cellars once in February and with Ms. Shields once on her own and once with Mr. Leroux. Mr.

Leroux testified that he met with Mr. Cellars twice and Ms. Shields on five occasions. The children met with Mr. Cellars once and then refused to meet with him again; thereafter, they only met with Ms. Shields. Her affidavit states that she met about six times with the boys, five times with each of their parents, and a number of times with Ms. Meldrum, counsellor for the children. [ 11 ] With input from the boys, Ms. Meldrum again developed a version of the “graduated parenting plan” leading to a 10/4 rotation. In an email to the parties and Mr.

Cellars on April 22, 2020, she reported that the parents had done “a great job” in working out a similar schedule, and further, they “detailed out the

schedule to as far as the end of 2020, and both seem very happy with the results.” [ 12 ] Ms. Shields testified in her affidavit that, as of a conversation she had with Mr. Leroux on September 18, 2020, the parties had been “following the

schedule that they came up with in May.” However, Mr. Leroux later expressed dissatisfaction and persisted in having parenting arrangements “addressed formally.” [ 13 ] The arbitral award in dispute was issued by Mr. Cellars on September 21, 2020. Until then, according to the affidavit of Ms. Leroux, “[Mr. Leroux] and I had agreed to use the 10/4 graduated

schedule until the end of . . . 2020 which I continued to agree with and follow up to the date of the Award.” Mr. Leroux also had extra parenting time over the summer vacation period. [ 14 ] In

summary, before the arbitral award, the parties had agreed to an 8/6

schedule (Rawlins J. order of 2016); a 10/4

schedule pursuant to the graduated plan approved by Antonio J.; and initially agreed upon thereafter continuation of a 10/4

schedule before the arbitration, with Mr. Leroux then withdrawing his consent and demanding a 9/5 schedule. III. Arbitration [ 15 ] As indicated above, the consent Ms. Meldrum and Ms. Shields thought had been achieved failed when Mr. Leroux withdrew from his agreement. He did so, as is plain from Mr. Cellars’ and Ms. Shields’ affidavits, because he realized the agreed

schedule would not constitute the type of shared parenting that would reduce his child support obligations. A few days before the arbitral award, Mr. Leroux explained to Ms. Shields that he was prepared to walk away from his children if he did not get by agreement or arbitration a

schedule that would reduce his child support obligations – even an increase in parenting time, without reduction in child support was of no interest to him. (This was despite Ms. Shields advising him “that if we continued along as planned, he would eventually get that 40% number he was stuck on,” something Mr. Leroux agreed was likely but that he was not willing to wait for.) [ 16 ] The parties attended a court-facilitated dispute resolution on August 25, 2020 which, as the record of the proceeding and Ms. Leroux’s evidence indicates, was thought to result in agreement. However, Mr.

Leroux’s counsel did not sign the proposed consent orders and took the position that there had been no final and enforceable agreement. (In a September 17, 2020 email, Mr. Leroux’s counsel said he stated at conclusion of the dispute resolution that “it did not appear to me that we had an agreement as shared parenting was a critical term from my client’s perspective.”) [ 17 ] There were email communications between Mr.

Cellars and counsel for the parties from late July until Friday, September 18, 2020 (just before the arbitral award was issued, on Monday, September 21). [ 18 ] The following are excerpts and paraphrases from these communications, which include Ms. Tymchuk, as counsel for Ms. Leroux; Mr. Nieswandt, as counsel for Mr. Leroux; Mr. Cellars; Ms. Shields; and sometimes one or both of the parties: a. July 20, 2020: Mr. Nieswandt commented on the possibility of a dispute resolution, but also stated that he believed the parenting

coordinator would make a decision as the parties had been unable to agree. b. July 22, 2020: Ms. Tymchuk advised that “if there is an arbitration application . . . we would need to settle the terms of the arbitration and

schedule including the manner and timing of introduction of evidence and conduct of the hearing.” c. August 15, 2020: Mr. Cellars advised that he understood, to his surprise, that the parties had reached an agreement on schedule. He observed that the relationships between the boys and their father had apparently approved and that “it’s probably appropriate to resume, at any time, following [the Rawlins J.

schedule from 2016].” Finally, he stated “if one of the parents thinks that the parenting

schedule should deviate from what was agreed to in April and May [the 10/4 schedule], please have them submit a written description of their reasons.” d. August 19, 2020: In a letter addressed to Mr. Cellars, Mr. Nieswandt referred to the fact that in April/May, Mr. Leroux “decided to agree to a compromise in order to have as much time as possible with the children,” but now determined that the

schedule should be 9/5 commencing in September and, in January 2021, revert to an 8/6

schedule consistent with the Rawlins J. 2016 order. e. August 25, 2020: The parties with their counsel attended a dispute resolution. The report of the dispute resolution officer indicates the parties settled their issues of ongoing child support and arrears and parenting matters, with a consent order to be prepared by counsel. (As noted above, in a later email Mr. Nieswandt suggested he had stated otherwise at conclusion of the process.) f. September 15, 2020: Mr.

Cellars observed that apparently the agreement had not endured, and he would therefore proceed with arbitration. “If anyone wishes to provide final submissions, or have an arbitration hearing of some sort, please advise me by the end of the day tomorrow, Wednesday, September 16, 2020.” g. September 17, 2020 (from first to last in order of communications): i. Mr.

Cellars indicated that he had not received an indication from either party that final submissions would be provided so he would proceed with making a decision based on information that he already had, although he noted he had received an “out of the office” reply from Ms. Tymchuk. ii. Ms. Tymchuk responded that the parties had reached consent at a dispute resolution and were waiting to finalize the terms of the order, and thus told Mr. Cellars not to prepare an arbitration award. iii. Mr.

Cellars responded asking for confirmation of what the consent was, so he could write up the award; failing which he would proceed as indicated earlier as “I think it is best for the

schedule issue to be resolved immediately, rather than let it be delayed by the determination process of a number of unrelated matters.” iv. Ms. Tymchuk advised that she was awaiting confirmation of the terms from Mr. Nieswandt and that “the process you have set out wherein no evidence would be tendered and no right of cross-examination would be offered, is not agreeable and does not align with the principles of justice.” v. Mr. Cellars responded, referring to the question of whether there was a new agreement; and if there was not and Ms.

Tymchuk genuinely thought there was and hence had not provided additional information and seek cross- examination, “then I may consider giving you additional opportunity to do so.” vi. Mr. Nieswandt responded that he believed there had been too much overall delay and unnecessary steps. His instructions were to request that the arbitration proceed, and gave observations on what an appropriate process might be – such as using affidavits as direct evidence, written submissions and each party subjected to a half-day cross-examination. vii. Ms.

Tymchuk responded that a process similar to special chambers applications would be acceptable. She also observed “that sitting in arbitration for tomorrow, Saturday or Monday would [not] achieve procedural fairness.” (It is unclear from the evidence when, how or by whom the tomorrow, Saturday or Monday suggestion arose.) h. September 18, 2020 (again, in order of communication): i. Mr. Nieswandt observed that as Ms. Tymchuk had requested a process for the arbitration, natural justice required that it be put into place. He made observations on a process that could be accomplished over the next two or three weeks.

However, “in the interim, I would ask for an interim award which can be made into an order on a without prejudice and interim basis” on the basis of his August 19, 2020 letter. He suggested that Mr. Cellars having met with the parties, reviewed documents and met with the children would enable him to make an interim decision. ii. Ms. Tymchuk responded positively to Mr. Nieswandt’s suggestions for process, but also requested that the children be represented by counsel in the arbitration.

Finally, she stated “I reiterate that I am not agreeable to the interim parenting award being granted in the manner described by Mr. Cellars in his email of 2:08 today. The proposal does not afford due process to either party. There is no urgency to the application, as I understand the children are currently spending 4 days out of every 14 with Mr. Leroux by consent.” (I have not found Mr. Cellars September 18, 2:08 email in the evidence.) IV. Arbitral Award of September [ 19 ] Ms.

Tymchuk’s last correspondence on Friday, September 18, 2020 was sent at 3:32 p.m., objecting to any interim parenting award without some form of “due process.” The response was Mr. Cellars’ Monday, September 21, 2020 10:56 a.m. email, to which he attached a copy of his award. [ 20 ] The award is entitled “Arbitration Interim Award.” Its recitals refer to the court orders and the agreement between the parties,

where “it was agreed, inter alia , that in case of any dispute or difference arising between them as to the matter set out in the said agreement, such dispute or difference should be referred to the arbitration and final decision of BLAIN CELLARS, the parenting coordinator named in the said agreement.” [ 21 ] This is an inaccurate

summary of the agreement. The “Parenting Coordinator” is defined as “Canadian Co-Parenting Centres, CCPC,” and there is no referral of matters specifically to “Mr. Cellars.” His name appears only as the “representative” who signed the agreement for Canadian Co-Parentings Centres, CCPC. [ 22 ] The recitals also indicate that Mr. Cellars had “heard and considered the allegations and extensive evidence of both Parties.” [ 23 ] The provisions of his order may be briefly summarized as follows: • The 8/6

schedule set out in the March 4, 2016 consent order of Rawlins J. would be followed until further agreement or order; • “The question of parental alienation, that has been alleged and denied, should be formally investigated and determined” and absent agreement by the parties on a professional, Mr. Cellars directed that Dr. Craig Childress be retained. • Finally, the award provided that “if the parties are unable to agree on a process for reviewing this Interim Award, I direct that it be heard de novo , as an arbitration, by the Honourable B. L.

Rawlins, whom [sic] appears to be in private practice with Dispute Resolution Associates. In the alternative, Mr. Wayne Barkauskas is suitable.” [ 24 ] The award also contained brief reasons. They referred to the fact that the relationship between the father and the children was better than ever. In April/May 2020 the parties had extensive discussions about a parenting

schedule and reached an agreement for the balance of 2020 and winter of 2021. He noted that he had expressed “musings” of

schedule options that were potentially better for the children and parents, but those options were not pursued “as both parents and both children had a persistent preference for what they referred to as a 10/4 or 9/5 schedule, which relates back to, at least, the March 4, 2016 Consent Order.” [ 25 ] In his view, the 2016

schedule was not substantially different from what the parties had temporarily agreed in spring 2020 and “given that it is a court order, that was followed for a period of time, this award of mine follows those terms, rather than the terms temporarily agreed to by the Parties earlier this year.” Finally, he observed that Ms. Leroux had ample opportunity to explain why she was no longer willing to continue with the parenting

schedule she “co-created and agreed to earlier this year” but no reasons had been given him. As will be addressed presently, that was an error. [ 26 ] He awarded costs of the arbitration against Ms. Leroux. V. Arbitral Awards of December [ 27 ] Mr. Cellars issued two subsequent arbitral awards, both dated December 16, 2020. [ 28 ] One of them arose from, as the recitals indicate, Mr. Cellars “being advised that the Children have not been spending any time with their father” since his September 21, 2020 award. [ 29 ] Ms. Leroux’s evidence indicates that the children refused to visit with their father. Ms.

Shields, in her affidavit, indicates that she and Ms. Meldrum had expressed to Mr. Cellars in an October conversation “how unfortunate it was that, given that the boys have historically consistently expressed apprehension for various reasons about immediate

schedule increases, that it was thoroughly predictable that the boys would struggle with such a change, and that it would have been wise to set parameters around how this Award would be announced.” [ 30 ] Once again, there was no hearing. Instead, Mr. Cellars directed that his September award would be adjusted to provide makeup time for visits between the children and Mr. Leroux at the rate of 3 for 1, for all time missed since September 21, 2020, and directed costs of the arbitration against Ms. Leroux. [ 31 ] In the second award of December 16, 2020, Mr. Cellars directed that Dr.

Terry Singh be retained to provide counseling services to the two boys and Mr. Leroux, which would be incorporated in the form of a Practice Note 7 order. VI. Standard of Review [ 32 ] The appeal of an arbitral award is governed by the Arbitration Act , RSA 2000 c. A-43 . It states that “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 fact and law”: section 44(1).

If the agreement does not provide for an appeal 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”: section 44(2). [ 33 ] The parties’ agreement has poorly-worded clauses regarding rights of appeal.

The relevant provisions are as follows: 6.2 The Parenting Coordinator’s decision in the arbitration process is binding upon you, pursuant to the provisions of the principles of parens patriae and therefore subject to review by the Supreme Court. 7.1 Because the Supreme Court retains its jurisdiction pursuant to the principles of parens patriae and because the Parenting Coordinator must operate pursuant to the rules of natural justice, you have a limited right of appeal to the Supreme Court at your own expense.

[ 34 ] Obviously, these clauses were drawn with another jurisdiction in mind, and perhaps phraseology such as “parens patriae” comes from another jurisdiction’s legislation. It offers little help in determining the scope of appeal rights these parties contemplated, but they clearly intended some form of “limited right of appeal.” [ 35 ] There is no dispute that the agreement provides at least for a right of appeal on questions of law.

That scope of review is sufficient for my decision. [ 36 ] A helpful review of the standard of review on appeals from arbitral awards is given in CRW v SJA , 2018 ABQB 1041 , with reference to other authorities. The principles, drawn from paragraphs 11 through 14, may be summarized for present purposes as follows: a. The standard of review for errors of law is correctness. An error of law is made where there is an incorrect statement of the legal standard or test or an application of incorrect factors in applying the law to the facts. b.

A breach of the duty to be fair and apply the rules of natural justice is reviewable on the standard of correctness. c. The requirement to consider all relevant evidence is reviewable on a standard of correctness, although the weight assigned to the evidence must be given deference unless there is a palpable and overriding error. VII. Principles of Law [ 37 ] There are several legal principles that applied to the arbitrator when making his decision on parenting. [ 38 ] In considering parenting matters, the test is the best interests of the children. Mr.

Cellars was bound to follow section 17(5) of the Divorce Act , RSC 1985, c. 3 (2nd Supp ), section 17(5) which requires that “in making the variation order, the court shall take into consideration only the best interests of the child as determined by reference to that change.” [ 39 ] Mr. Cellars was also bound to follow the procedural requirements of the Arbitration Act and the rules of natural justice. Both the agreement and section 20(1) of the Act give the arbitrator considerable latitude on matters of procedure and evidence.

Nevertheless, there are fundamental requirements the arbitrator was bound to observe, as set out in the following provisions: 19(1) An arbitral tribunal shall treat the parties equally and fairly.

(2) Each party shall be given an opportunity to present a case and to respond to the other parties’ cases. 26(1) The arbitral tribunal may conduct the arbitration on the basis of documents or may hold hearings for the presentation of evidence and for oral argument, but the tribunal shall hold a hearing if a party requests it. [ 40 ] In addition, in setting out the grounds on which an arbitral award may be set aside, the Act indicates other boundaries within which an arbitrator must conduct the process: 45(1) On a party’s application, the court may set aside an award on any of the following grounds: (

c) the award deals with a matter in dispute that the arbitration agreement does not cover or contains a decision on a matter in dispute that is beyond the scope of the agreement; (

f) the applicant was treated manifestly unfairly and unequally, was not given an opportunity to present a case or to respond to another party’s case, or was not given proper notice of the arbitration or of the appointment of an arbitrator; (

g) the procedures followed in the arbitration did not comply with this Act or the arbitration agreement. VIII. Findings [ 41 ] I conclude that Mr. Cellars’ September award must be set aside. The December 2020 “3 for 1” award also fails, as it depends on the earlier award. The parties have agreed to arrange for the appointment of Dr. Singh by consent under a court order, and thus the third award is not an issue that needs resolution. [ 42 ] The main reason the September award must be set aside is that the statutory and common law rules relating to procedural fairness were not followed. [ 43 ] Ms.

Leroux was not given the right to present her case in even the most minimal fashion and her request for a hearing (which thus became mandatory under section 26(1) of the Act ) was ignored without comment. Further, Ms. Leroux did not even know the full extent of the relief Mr. Cellars would consider. His appointment of Dr. Childress to deal with “the question of parental alienation, that has been alleged and denied” could not be considered; it had not been addressed by either counsel nor had Mr. Cellars indicated he would be making a decision on the point. [ 44 ] Mr.

Cellars attempts to justify the lack of procedural fairness on the basis that his award was interim and without prejudice. Even if that were so, it would not justify the failure to observe even the most minimal standards of natural justice. But that is a mischaracterization of the award. [ 45 ] As Ms. Tymchuk pointed out in her letter sent Friday afternoon before the Monday award, there was no urgency to an award because she understood the children were spending four days out of every fourteen with Mr. Leroux. If Mr. Cellars had some basis for rejecting this representation, he does not say so.

[ 46 ] In any event, the award was for an indefinite duration and could only be set aside in a new arbitration procedure before another arbitrator, which would have to be one of two selected by Mr. Cellars. Again, this was without submissions from counsel and without any basis in the agreement and order appointing Mr. Cellars. Having issued what he considered to be an interim without prejudice order, Mr.

Cellars abandoned the matter to a replacement yet to be selected. [ 47 ] Arbitrators usually have considerable flexibility as to procedure in rules of evidence, both under their appointing instruments and the Act . It would have been open for Mr. Cellars to direct an abbreviated hearing process. Perhaps, depending upon the type of award contemplated and the amount of information he had, he might have directed a brief hearing within a short period of time. It was not, however, open for him to deny any form of hearing, particularly given the unanswered submissions made by Ms.

Leroux immediately before his award was issued. [ 48 ] The rights given to the parties under their agreement, the common law and the Act are absolute. Mr. Cellars did not have the right to ignore them by stating that he believed he knew enough from his previous involvement with the parties. That prior involvement might reduce the procedures and evidence required to constitute fair procedure, but did not obviate some right to be heard. [ 49 ] Further, it is patent that Mr. Cellars did not have enough information.

It had been many months since he had met with the children, and thereafter they insisted on meeting only with his colleague. His reasons refer to an agreement made by the parties with input of the children and the children’s counsellor, and he is critical of Ms. Leroux for resiling from it. Unfortunately, that was the exact opposite of what happened as Mr. Cellars admitted in a subsequent affidavit – Mr.

Leroux backed out of the agreement for reasons having nothing to do with the best interests of the children. [ 50 ] Finally, the arbitral appointment was of “Blain Cellars and/or Monique Shields of the Canadian Co-Parenting Centres.” Mr. Cellars took it upon himself to issue an award, but

section 34 of the Act provides that if a tribunal is composed of more than one member the decision must be by a majority of the members or by the chair.

Section 10 allows for the appointment of a chair. There is no evidence that a chair was ever selected. I infer from the record, both before and after the September award, that Mr. Cellars was at odds with the views of Ms. Shields and simply assumed direction of the proceeding himself. Thus, Mr. Cellars committed another procedural error by issuing a unilateral decision without consulting his co-arbitrator or having authority to act as chair. [ 51 ] The foregoing are ample reasons to set aside all of Mr. Cellars’ directions in both contested awards. There are many other errors, which require only brief mention: a.

Mr. Cellars acted outside his jurisdiction by ordering costs against Ms. Leroux, when Antonio J.’s September 7, 2018 order (by consent) stated that the parenting coordinator’s services would be shared by the parties pro rata, and “no decision of the parenting coordinator may override this Order.” b. Mr. Cellars was required to apply the best interests of the children when making parenting decisions.

On the face of his decision, and as confirmed in later correspondence, he decided to use one of the options the parties had agreed to some years before rather than “imposing on your family what I thought was best.” His reasons do not explain why returning to a four-year-old order was in the best interests of the children. c. Mr. Cellars failed to consider the very cogent information and opinion from his colleague, Ms. Shields, to the effect that any problem between the boys and their father was not alienation. To the contrary, according to Ms. Shields, the boys objected to Ms.

Leroux’s effort to have them spend more time with Mr. Leroux. Ms. Shields view was that the estrangement was rooted in the boys’ experiences with their father. Assuming addressing alienation was properly before him, Mr. Cellars may not have been bound to accept Ms. Shields’ views but was required to give them meaningful consideration. d. Mr. Cellars’ obvious concern that Ms. Leroux had reneged on a parenting agreement made several months earlier was consideration of a factor that was completely unfounded on the record; as noted above, he had it exactly backwards. [ 52 ] I therefore allow the appeal of Mr.

Cellars’ parenting awards and set them aside in their entirety, with the exception as the parties may agree of the appointment of Dr. Singh. [ 53 ] Further, to the extent Mr. Cellars has not already resigned (a confusing point given his delegation to other arbitrators in September 2020, but issuance of new awards in December 2020), I direct that Mr. Cellars and his Canadian Co-Parenting Centres be removed as arbitrator, pursuant to section 45(7) of the Act . [ 54 ] The parties may arrange a further attendance to speak to any matters arising out of this decision. Heard on the 5 th day of January, 2021.

Dated at the City of Calgary, Alberta this 15 th day of January, 2021. G.H. Poelman J.C.Q.B.A.

Appearances: Peter G. Nieswandt for the Plaintiff/Respondent Laurie Tymchuk for the Defendant/Applicant