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