Mailer v Mailer, 2021 ABQB 423

Court of Queen’s Bench of Alberta Citation: Mailer v Mailer, 2021 ABQB 423 Date: 20210531 Docket: 4803 187801 Registry: Edmonton Between: Jennifer Lynn Mailer Applicant/Defendant - and - Lee Jeffery Mailer Respondent/Plaintiff _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice M. J. Lema _______________________________________________________ A.

Introduction [ 1 ] Did a binding-arbitration-award challenger require leave to appeal the award and, if so, did he seek leave in time? [ 2 ] Parties in family-law litigation agreed to arbitrate selected issues and made a binding-arbitration agreement. On appeal rights, the parties agreed that “the decision of the Arbitrator shall be subject to an appeal only on question of law in accordance with s. 44(2) of the [ Arbitration ] Act .”

[ 3 ] The arbitration-award supporter contends that, by including that provision, the parties limited appeals to questions of law and also imposed a leave requirement.

She then argues that leave was not sought within the statutory time period, that the period cannot be extended, and that the Court should accordingly declare the arbitration award beyond challenge. [ 4 ] The award challenger accepts that leave to appeal was required, acknowledges that leave was not sought in time, and asks that time to seek leave be extended. [ 5 ] I find that ss 44(2) applies (and thus imposes a leave requirement), that the challenger did not apply for leave within the statutory time period, that that period has now expired, and that it cannot be extended. [ 6 ] Accordingly, I dismiss the arbitration challenge for lack of (now unattainable) leave to appeal. [ 7 ] I also note that, in any case, likely none of the perceived errors qualify as “questions of law.” B.

Analysis Arbitration Act (key provisions) [ 8 ] It is common ground that the Arbitration Act applies here (recital “D” and s. 3.1 of the arbitration agreement). [ 9 ] The key provisions of the Act here are ss 44 (appeal rights) and 46 (time limit to appeal): 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.

(2.1) The court shall grant the permission referred to in subsection (2) only if it is satisfied that

a) the importance to the parties of the matters at stake in the arbitration justifies an appeal, and

b) the determination of the question of law at issue will significantly affect the rights of the parties.

(3) Notwithstanding subsections (1) and (2), a party may not appeal an award to the court on a question of law that the parties expressly referred to the arbitral tribunal for decision.

(4) The court may require the arbitral tribunal to explain any matter.

(5) The court may confirm, vary or set aside the award or may remit the award to the arbitral tribunal and give directions about the conduct of the arbitration.

(6) Where the court remits the award to the arbitral tribunal in the case of an appeal on a question of law, it may also remit to the tribunal the court’s opinion on the question of law. 46(1) The following must be commenced within 30 days after the appellant or applicant receives the award, correction, explanation, change or statement of reasons on which the appeal or application is based:

a) an appeal under section 44(1);

b) an application for permission to appeal under section 44(2);

c) an application to set aside an award under

section 45.

(2) An application to set aside an award on the grounds that an arbitrator has committed a corrupt or fraudulent act or that the award was obtained by fraud must be commenced

a) within the period referred to in subsection (1), or

b) within 30 days after the applicant discovers or ought to have discovered the fraud or corrupt act, whichever is later. [emphasis added] [ 10 ] Per ss 44(1) and (2), the Act differentiates between scenarios where the parties expressly provide in their arbitration agreement for an appeal and define its scope (questions of law, fact, or mixed law and fact, or some combination), on the one hand, and where their agreement does not provide a right to appeal on a question of law, on the other. [ 11 ] The parties are free to include or not include an appeal right in their agreement and, if they include one, to define its scope as indicated. [ 12 ] If they do not include any appeal right at all or if they include one not providing for a question-of-law appeal, then ss 44(2) fills the gap for that kind of appeal.

It says that, where the agreement does not provide for such an appeal, “a party may, with the permission of the court , appeal an award to the court on question of law.”

[ 13 ] In other words, as far as question-of-law appeals go, the parties either provide such a right for themselves in their agreement (permitted under ss 44(1)) or the Act supplies such a right for them (under ss 44(2)). [ 14 ] The difference is that, where the parties agree on the possibility of such an appeal, no court leave is required.

Per ss 44(1), the only question is: did the arbitration agreement provide such a right? (The statutory precondition is simply “If the arbitration agreement so provides”.) If so, “a party may appeal an award to the court on a question of law ….” That is, it can appeal straight off, without having to first seek leave to appeal. [ 15 ] If the parties do not provide that right for themselves, ss 44(2) does so but imposes a “permission of the court” hurdle. (Subsection 44(2.1) outlines the tests to clear that hurdle: “importance to the parties” and “significant [impact on] their rights.”) [ 16 ] That is the statutory backdrop against which I examine the arbitration agreement here.

Arbitration agreement here [ 17 ] The key provisions of the agreement are: 11.1 The decision of the Arbitrator on the issues submitted shall be final and binding on the parties ….

The parties agree that the decision of the Arbitrator shall be subject to an appeal only on question of law in accordance with s. 44(2) of the Act . … 11.3 If one party seeks leave to appeal or to set aside the Award, the Arbitration Award shall be forthwith entered as a judgment of the Court. … 11.5 The parties further expressly acknowledge that the ultimate determination of the issues will include questions of mixed fact and law and involve the discretion of the Arbitrator. [emphasis added] [ 18 ] Per

section 1 of the agreement, the issues submitted to arbitration were (

a) division of matrimonial property; (

b) the parties’ respective Guidelines Incomes; (

c) child and spousal support (including entitlement, quantum, and duration); and (

d) costs. Did the arbitration agreement authorize question-of-law appeals? [ 19 ] The issue here distills to this: did the parties provide for a question-of-law appeal right, or not? [ 20 ] As noted, the parties “agree[d] that the decision of the Arbitrator shall be subject to an appeal only on question of law in accordance with s. 44(2) ….” [ 21 ] The first eleven bolded words of s 11.1 (“shall be … questions of law”) are clear.

If only those words had been used, the parties would plainly have built in a question-of-law appeal right and would have fit squarely within ss. 44(1), with no leave to appeal needed. [ 22 ] But do the words “in accordance with s. 44(2)” change the meaning of the opening phrase? [ 23 ] The answer is yes, for these reasons: • an appeal right “in accordance with ss. 44(2)” necessarily means an appeal subject to a leave requirement . Otherwise the parties would have said “in accordance with ss. 44(1)”; • the parties could have engaged ss. 44(2) simply by remaining silent on question-of-law appeals.

In that indirect fashion, they would have satisfied its opening condition (“If the arbitration agreement does not provide that the parties may appeal an award to the court on a question of law ”). But they decided to explicitly invoke ss. 44(2); • ss 44(1) and (2) are binary: the parties either provide, or do not provide, a question-of-law appeal right. We start by asking whether the parties, by agreement, created an unconditional question-of-law appeal right. If they did, a party perceiving a question-of- law error can launch an appeal via that clear pathway.

If they did not create an unconditional right to appeal such questions, by definition, they fall into ss. 44(2), where question-of-law appeals are possible but only with leave ; • what else can the parties have intended by their express reference to ss. 44(2) and the limitation of an appeal “in accordance with” that provision?

Instead of a clear pathway to an appeal, they obviously preferred to impose a leave hurdle; and • this view is clinched by the follow-up wording of s. 11.3 of the agreement: “If one party seeks leave to appeal or to set aside the award ….” The bolded wording only makes sense if s. 11.1 imposes a leave hurdle.

Nothing else in the agreement would or could give rise to a “leave to appeal” requirement. [ 24 ] The award challenger himself does not argue that leave was not required, instead that time to seek leave can, and should be, extended. [ 25 ] This raises the next issues: what is the statutory deadline for applying for leave to appeal, did the applicant meet that deadline, and, if not, can it be extended? [ 26 ] I start with the statutory deadline. Statutory time period to seek leave

[27] I reproduce the key portion of ss. 46(1) (full provision above): The following must be commenced within 30 days after the appellant or applicant [for leave] receives the award … on which theappeal or application is based:

a) an appeal under section 44(1); [or]

b) an application for permission to appeal under section 44(2). [28] The award here was released on March 1, 2021. The challenger filed a “family application” (Form FL-18 under Rule12.44(1)(a) – “Application within Course of Proceeding”) on March 31, 2021. [29] The award supporter does not dispute that the filing here was made “within 30 days” after the award was issued.

But sheasserts that, instead of filing the necessary application for leave, the challenger filed a notice of appeal i.e. skipped the leave step. [30] The challenger accepts that leave to appeal was required here and acknowledges filing an appeal, not an application for leaveto appeal. Per his counsel’s letter submitted on these issues, “the application to appeal was filed pursuant to s. 44(1) [the straight-to-appeal provision] rather than s. 44(2) [the leave-to-appeal provision]” (emphasis added).

As well, he acknowledged (per the same letter)filing a “Notice of Appeal” and that “the application simply missed the step to request leave to appeal.” [31] The consequence is that, with no application for leave to appeal filed before the 30-day deadline expired (on March 31,2021), it is too late, per that deadline, to seek such leave. [32] The challenger’s focus (necessarily) turned to whether that deadline can be extended and, if so, whether an extension iswarranted here, which I examine next.

Whether 30-day period to apply for leave to appeal extendable [33] The challenger cited the test for extending an appeal period from Cairns v Cairns, (AB CA), [1931] 4 DLR819 at 826-827 (Alta SC(AD)), reiterated as recently as two weeks ago in Wang v Alberta, 2021 ABCA 175 (May 12, 2021), whereVeldhuis JA (in chambers) stated: Under Rule 14.8(2) of the Alberta Rules of Court, Alta Reg 124/2010, a Notice of Appeal must be filed and served within one month ofthe date of the decision.

The Substantive Orders were granted in November 2019, December 2019, February 2020 and September 2020.The Notice of Appeal for all of them was filed on January 4, 2021. As a result, under Rule 14.37 of the Alberta Rules of Court, I mustconsider whether I should extend time to appeal the Substantive Orders. The test for an extension of time was established in Cairns v Cairns, (ABCA), [1931] 4 DLR 819 at 826-827, [1931]3 WWR 335. The applicants must establish:

a) that there was a bona fide intention to appeal while the right to appeal existed;

b) that there was an explanation for the delay including some special circumstance that would excuse or justify the delay;

c) that the other party was not so prejudiced by the delay that allowing an appeal would create injustice;

d) that the applicant has not benefited from the judgment being appealed from; and

e) that the appeal would have a reasonable chance of success if allowed to proceed. [paras 13-14] [emphasis added] [34] The challenger offered submissions on each of these factors as they apply, or may apply, here. [35] The award supporter disputes that the statutory (Arbitration Act) deadline can be extended, whether on a Cairns v Cairnsanalysis or otherwise. She pointed first to Funk v Funk, 2018 ABCA 210, where McDonald JA (in chambers) held: … even if the applicant could appeal the December 1, 2017 Judgment, there is still the Arbitral Award, which the applicant appealedafter the expiry of the appeal period.

He is seeking an extension of time to appeal, but is unlikely to be successful in obtaining one.The Arbitration Act, RSA 2000, c A-43, does not provide for extending time. Even claiming fraud as a basis to set aside an awardrequires the application be commenced within 30 days after the fraud was discovered: Arbitration Act section 46(2).

The Rules ofCourt do not permit a court to extend statutory appeal periods: B.W. v G.R., 1989 ABCA 205. [para 43] [emphasis added] [36] And to Allen v Renouf, 2019 ABCA 250, where the Court of Appeal ruled: … the chambers judge correctly decided that nothing in the Arbitration Act, the Alberta Rules of Court, or on any other juridicalbasis, conferred on him the jurisdiction to extend the statutory time limit [in s. 46]: Funk v Funk, 2018 ABCA 210 at para 43; BWv GR, 1989 ABCA 205 at para 11, 68 Alta LR (2d) 377. [37] The Court of Appeal echoed this conclusion more recently in Pearson v Pearson, 2020 ABCA 260 … Mr.

Pearson’s only grounds for such a [stay] remedy would have been his desire to appeal the arbitration award, which was out oftime prior to the Application. Section 46(1)(

a) of the [Arbitration] Act requires that an appeal be commenced within 30 days, a timelimit the court has no jurisdiction to extend: Allen v Renouf, 2019 ABCA 250. [para 44] [emphasis added] [38] See also the concurring decisions on the non-extendability of the s. 46 deadlines in Ellsworth v. Ness Homes Ltd., 1999

ABQB 287 (Girgulis J.) at para 32 and Masterpiece Cabinetry & Finishing Ltd v Risi, 2001 ABQB 118 (Coutu J.) at paras 16-20. [39] Finally, see also the cases gathered by Wakeling JA (in chambers) on this point generally in Legacy Inc v Red Deer (City),2018 ABCA 393: … this Court cannot extend a statutorily imposed deadline. [footnote 39] [footnote 39] Tymchak v. Subdivision and Development Appeal Board, 2012 ABCA 22, ¶ 41; 519 A.R. 295, 305 (chambers) (a courtcannot extend a statutory limitation period for filing and serving a permission-to-appeal application); County of Northern Sunrisev.

De Meyer, 2009 ABCA 205, ¶ 7; 454 A.R. 88, 92 (“Where legislation provides for a specific time period (such as 30 days) forlaunching an appeal to this court, and where that legislation does not expressly or impliedly incorporate by reference the Rules ofCourt ... and their curative provisions regarding extending time to appeal, this Court lacks jurisdiction to extend that time period if thelimitation is clearly a ‘statutory prescription’”); Mallett v.

Yorkshire Trust Co., 1986 ABCA 97 , 71 A.R. 23, 24 (C.A. 1986)(“unless there is an explicit statutory authority to relieve against a statutory prescription, this court has no power to do so”); Lakevold v.Dome Petroleum, 1979 ABCA 261 , 181 A.R. 254, 256 (C.A. 1979) (a court may not extend a statutory time limit unless thestatute confers on the court the authority to extend the time); Duzs v.

Duzs, 1973 ALTASCAD 9 , [1973] 3 W.W.R. 394, 397-98 (“[a rule allowing a court to abridge or extend a time limit] does not apply where the time for appealing is fixed by statute whichconfers no power on the court to extend the time”); Re MacDonald, (SK CA), [1929] 2 D.L.R. 265, 266 (Sask. C.A.1928) (“As the right of appeal is given by statute and there is no statutory or other authority for extending the time fixed by the statute,there is no right of appeal if the appeal is not brought within that time, and this Court has no power to extend that time as we have beenasked to do”) & B.C. Permanent Loan Co. v.

Canadian Northern Railway, (SK CA), 66 D.L.R. 75, 76 (Sask. C.A.1922) (“The right of appeal being given by statute must be exercised strictly in accordance with the terms of that statute.

There is noprovision in the Railway Act for extending the time for appeal consequently on the termination of the time fixed by the statute, if nonotice of appeal has been given, the right of appeal is gone, and there is no appeal to which the practice and the proceedings of theCourt can apply”). [para 61, with footnote 39] [emphasis added] [40] The Arbitration Act does not provide for extensions of the s. 46 deadlines, whether directly or indirectly e.g. by incorporatingthe extension powers in the Rules of Court. [41] Accordingly, the Cairns v Cairns test does not apply. [42] The Court has no power to extend the 30-day deadline for seeking leave to appeal.

C. Likely no “questions of law” in any case [43] The expiry of the deadline to seek leave to appeal likely ends up having no practical consequence. The reason is that, asdiscussed above, only an appeal on “questions of law” was permitted here.

In my view, likely none of the proposed appeal issues fallinto that category. [44] On the utility of examining how an appeal would likely have fared if leave had been sought and obtained, I draw guidancefrom Warren v Gilbert Estate, 2008 ONCA 694 (excerpt from headnote): … Had the estate appeared at trial, it would have had to take a position contrary to the one taken by G while she was alive. During herlifetime, G failed to take any steps to sever the joint tenancy, even after the matrimonial litigation started, because she wanted D tobecome the sole owner of the property by right of survivorship.

It was most unlikely that the estate would have taken the position atthe original trial that it now sought to assert, and it was unlikely that the estate would have succeeded had it done so. [see alsoparas 21 and 22] [emphasis added] [45] As noted earlier, the arbitration addressed theses issues: • division of matrimonial property; • the parties’ respective Guideline incomes; • child and spousal support (including entitlement, quantum, and duration); and • costs. [46] The arbitrator examined all of these issues and delivered her decisions on each of them. [47] I reproduce the challenger’s list of perceived errors: • [error] in the application of law in determining the [award supporter’s] entitlement to spousal support; • [error] in the application of law in determining duration of spousal support; • [error] in law in the application of Cunningham factors in determining guideline income; and • [error] in law in relying upon hearsay evidence of value of [a certain timeshare interest] provided by the [award supporter]. [48] The challenger framed, or tried to frame, each of these issues as, or as involving, a question of law. [49] However, I note the following:

• on entitlement to spousal support , the arbitrator proceeded on the basis that the challenger did not dispute entitlement : para 23 (fourth bullet) and para 70 of the decision; • that squares with her

summary of his “amount of spousal support” submissions (both prospective and retroactive): para 17 (first bullet); • I see no realistic possibility that the arbitrator misunderstood the challenger’s position (“not contested”) on entitlement; • even if she did, such would not raise a “question of law”, instead a purely factual issue (was entitlement conceded or not?); • in any case, based on a nearly 24-year marriage and the general arc of the parties’ working and domestic lives as summarized by the arbitrator (in part) at paras 74-78, I see virtually no chance of the challenger succeeding on a “no entitlement” argument; • as for duration of spousal support , the arbitrator’s decision (para 81) represented the exercise of her discretion to depart from the (non-binding) Spousal Support Advisory Guidelines , for reasons she articulated.

Her reasons do not reflect any error in the identification of any relevant legal principle. At most, this exercise involved the application of properly identified (whether explicit or implicit) legal principles to the facts on the ground i.e. a “mixed fact and law” exercise i.e. not a “question of law.” On this aspect, see Arnason v Arnason , 2011 ABQB 393 (Nation J.) at paras 44-45 . (For an example of a spousal support issue raising an actual question of law, see the decision of Strekaf J. (as she then was) in Dawson v Dawson , 2016 ABQB 167 i.e. whether the arbitration award, in

part concerning spousal support, was unenforceable because no acknowledgements and certificates of independent advice pursuant to

section 38 of the Matrimonial Property Act were executed in respect of the Award); • in any case, the arbitrator’s award of indefinite spousal support is subject to review once a named child is no longer a child of the marriage. That child is currently finishing Grade 12 and intends to study at NAIT.

Presumably that means continued “child of the marriage” status for him for the next three or so years, following which spousal support is reviewable; • as for guideline income , the focus was on the challenger’s income (with the parties agreeing on the award supporter’s Guideline income (para 35)) and the asserted errors limited to “application of Cunningham factor.” That refers to Cunningham v Seveny , 2017 ABCA 4 and its discussion of Guideline-income-adjustments for persons earning income through one or more corporations (e.g. the personal share of corporation-covered expenses, etc); • nothing in the arbitrator’s decision reflects the selection of the wrong legal principle(

s) or off-target description of those principles.

In the challenger’s own words, this is about the application of those principles i.e. a mixed-fact-and-law issue, not a “question of law”; • in any case, the arbitrator’s Guideline-Income analysis (paras 35-57) appears to be thorough and even-handed, with every adjustment or declined adjustment anchored in relevant facts; and • finally, as for the perceived evidence error (relying in part on hearsay evidence to value a certain time-share interest – a letter from a certain travel-related entity): o per the arbitration agreement, the parties gave the arbitrator jurisdiction to hear and determine “all process issues … including … evidentiary issues that may arise”; o the agreement also stated that “the Arbitrator … shall not be bound by the strict rules of evidence in force in courts of this Province, and may, in her discretion, receive any evidence submitted to her by the Parties that [she] believes to be relevant in the matters in controversy or that will enable [her] to arrive at a fair and proper decision”; o that squares with s. 21(1) of the Arbitration Act : “the [arbitrator] is not bound by the rules of evidence … and has the power to determine the admissibility, relevance and weight of any evidence”; o if the challenger had any competing documentary evidence of value, he did not produce it, leaving the arbitrator free to “make an award on the evidence before [her]”, per ss 27(3) of the Act ; o nothing in the decision reflects that the challenger was unable to provide valuation evidence i.e. if he had decided it would assist.

Apparently, he decided not to provide any (independent) valuation evidence i.e. beyond his opinion that the award supporter’s proposed value was too high; o the arbitrator recognized that the valuation evidence was “less than ideal”, but she had to work with the available evidence, and she was entitled (as outlined above) to rule on what evidence could be received and how much weight to attach to it; and o in any case, valuation of an asset is a question of fact: Arnason v Arnason , 2011 ABQB 393 (Nation J.) at para 28 . [ 50 ] In the above analysis, I rely on and invoke the helpful “what is a question of law?” analysis of Nation J. in Metcalfe v Metcalfe , 2006 ABQB 798 , particularly paras 22-24: There has been considerable judicial analysis of exactly what comprises a question of law, as opposed to a question of mixed law and fact.

Because of its relevance to judicial review and appellate advocacy, these are helpful areas when looking at these principles generally. The applicable principles have been reviewed in some detail by Fruman, J.A. in Alberta (Workers’ Compensation Board) v. Appeals Commission 2005 ABCA 276 at paras. 21 , 22, 29 and 30. 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. This determination is not only important in terms of what questions can be reviewed, but also the standard of review. An error of law isto be reviewed at the level of correctness. An exercise of discretion, or the application of a legal principle to the facts, is to be reviewedat the level of reasonableness. Family law illustrates well the issues that can arise. One can state the law to be applied, for example, the matters to consider todecide spousal support. These correct legal considerations, set by the law, have to then be applied to the facts.

That application ofthe law to the facts involves a question of mixed law and fact. Where there is broad discretion, as there is in applying the law ofspousal support, the review of the exercise of the discretion is a question of mixed law and fact.

The way the discretion has beenexercised can only be reviewed as a question of law if it can be shown that there was an error in the legal rules (or law) that wasapplied, when exercising that discretion. [emphasis added] [51] On Cunningham-type adjustments to income, see in particular Nation J.’s comments at para 29: The Applicant complained of adjustments that the Arbitrator had made to arrive at the Applicant’s real income for child supportpurposes. The argument advanced is set out in detail at pp. 9 to 13 of the Appellant’s brief filed in support of the appeal.

It relates tochanges in income for automotive expenses, courses and conferences, depreciation and amortization, promotion and entertainment. Thelaw allows these adjustments to be made, it is an exercise of discretion applicable to every self-employed person, or person whoutilizes write offs for tax purposes, when their taxable income may not correctly reflect their income for support purposes.

This isan issue of mixed law and fact, and as no error was demonstrated in the legal principles applied, it is not reviewable on appeal.[emphasis added] [52] In Clark v Unterschultz, 2020 ABQB 338, Ross J. addressed the same issues: The Arbitration Agreement provided that the following issues were submitted to arbitration: A. Matrimonial Property division, including issues of valuation, exemptions, dissipation or disposition of assets, manner of propertydivision, including directions on payment and enforcement; B.

Entitlement and quantum of spousal support, including fixing and enforcement of arrears and variation on a retroactivebasis; C. A determination of guideline incomes for support purposes; D. Costs. All of these issues involve mixed questions of fact and law, as opposed to discrete questions of law.

I conclude that the identifiedquestions of law mentioned earlier – i.e. failure to allow expert evidence, corporate separateness, and inadequacy of reasons – were notexpressly referred to the Arbitrator, and the appeal is not barred by s 44(3) of the Arbitration Act. [paras 46 and 47] [emphasis added] [53] In Craig v Craig, 2004 ABCA 364, Paperny JA (in chambers) classified spousal-support quantum fixing as a “mixed fact andlaw” exercise: … to do justice in such cases, it is important to consider the possible merits of the appeals themselves. The first [appeal] is from aninterim order for spousal support.

The chambers judge ordered the sum of $1500.00 per month, payable to the respondentretroactive to November 1, 2001, and directed that the issues of matrimonial property and spousal support be set down for trial at theearliest possible date after March 30, 2002. The appellant’s primary grounds of appeal are that he was refused an adjournment and thatthe chambers judge arrived at an incorrect amount by virtue of considering evidence that was not properly before him. As to the first,the granting of an adjournment is discretionary and a review of the record does not reveal any error warranting appellate intervention.

The second ground, the amount, is a question of mixed fact and law and subject to a high deferential standard: see Hickey v.Hickey, (SCC), [1999] 2 S.C.R. 518. … [para 9] [emphasis added] [54] In Patton-Casse v Casse, 2012 ONCA 709, the Ontario Court of Appeal confirmed that an appeal of an arbitrator’s decisionson child support and spousal support, concerning alleged “errors in the arbitrator’s application of the law to the facts”, was an appeal of“mixed fact and law” (paras 9 and 13). [55] In that case, the perceived errors involved incorrectly tagging the father for “blameworthy conduct”, misunderstanding the taximplications of awarding retroactive spousal support, failing to consider the connection (or lack of connection) between the payor’s newemployment and the recipient spouse’s efforts during the marriage, and misinterpreting the parties’ “joint statement of issues for trial” asit concerned overpayment adjustments (paras 14-30). [56] All these issues were classified as questions of mixed fact and law. [57] As I see it (in light of these “taxonomy of errors” cases), likely none of the issues identified by the challenger here raise“questions of law.” D.

Conclusion [58] Per ss. 44(2) of the Arbitration Act, leave to appeal was needed before this appeal could be launched. [59] Leave was not sought before the unchangeable statutory deadline expired.

[ 60 ] With leave required and not obtained, and now not obtainable, the appeal challenge must be dismissed. [ 61 ] In any case, the proposed grounds likely did not raise questions of law, so the appeal was likely bound to fail for that reason alone. [ 62 ] The award supporter is entitled to costs of the May 18 th chambers application. [ 63 ] I thank the parties for their helpful written and oral submissions. Heard on the 18 th day of May, 2021. Written submissions received on May 21 st , 25 th and 28 th , 2021. Dated at the City of Edmonton, Alberta this 31 st day of May, 2021. M. J. Lema J.C.Q.B.A.

Appearances: Katherine E. Palmer Strathcona Law Group LLP for the Applicant/Defendant Laura H. Bruyer Bruyer Mackay Family Law for the Respondent/Plaintiff