The Ontario Court of Appeal, in Grosman v. Cookson, 2012 ONCA 551, decided that the fact that a support recipient files a separation agreement with the court for enforcement does not mean that the court can decide whether the amount of support should be changed if the parties have previously agreed to mediation/arbitration.

In this case, the parties had agreed in their separation agreement that if there was an issue with the amount of support, they would address that issue first through mediation, and then if there was no resolution, through arbitration with a named mediator/arbitrator.

The husband’s income had decreased. He asked for a reduction in support. The parties attended mediation, but there was no settlement. An arbitration was scheduled, but did not go ahead.

The husband stopped paying support. The wife then filed the separation agreement with the court, so that the Family Responsibility Office (FRO) would enforce the support payments.

The husband filed an application with the court to reduce support. FRO notified the husband of an intention to suspend his drivers’ license because he was in arrears. The husband then brought a motion to stop that suspension of the license. The court allowed that motion, on terms that the husband pay a certain amount of support.

The wife then brought a summary judgment motion, stating that the husband’s application to reduce support should be dismissed, because the parties had an agreement that their disputes were to be resolved through mediation/arbitration. That motion was dismissed.

The Ontario Court of Appeal allowed the wife’s appeal, finding that the Family Law Act and the Enforcement Act, when read together, allow parties to opt out of litigation and submit to private mediation/arbitration for future disputes. The enforcement provisions, allowing parties to file agreements with the court for enforcement by FRO do not invalidate provisions in separation agreements requiring mediation/arbitration and do not give the court jurisdiction to decide changes in support in the face of such provisions.

This is an important decision, because it shows that the courts will show great deference to decisions that individuals make about how their future disputes will be resolved.

Parties agreeing to mandatory mediation/arbitration clauses must realize that they will not have recourse to the court. They are bound by that choice, and cannot count on having the court as a last resort, even if the court is used for enforcement of their agreement.

Mediation/arbitration can be a very effective way to resolve disputes. It is private, and can be faster and better tailored to the parties’ circumstances. However, parties need to consider carefully whether it is and will be appropriate for them in all circumstances. An example of a case where there was such a concern, arising from power imbalances, is Wainwright v. Wainwright, set out in the previous blog post. If recourse to the court may be needed, a mandatory mediation/arbitration clause should not be included in a separation agreement.