In family law matters, a judge has the discretion to terminate a Mediation/Arbitration Agreement if there is undue delay in the arbitration process, which prejudices one of the parties and undermines the purpose of alternative dispute resolution.
In the case of Maharajh v. Mathura (2024), the judge considered the wife’s application to remove a Mediator/Arbitrator and terminate the Mediation/Arbitration Agreement. The wife presented the judge with evidence of significant delays caused by both the Arbitrator and the self-represented spouse. She argued that despite multiple attempts to move the arbitration forward, the Arbitrator failed to respond in a timely manner, causing frustration and significant prejudice to her.
The judge emphasized that undue delay in the arbitration process could be grounds for removal of an arbitrator under the Arbitration Act. The judge found that this was particularly harmful to the wife because of her urgent need for resolution of child support and equalization.
The judge stated that mere delay is not enough; a party must demonstrate that the delay has caused tangible prejudice or unfairness that undermines the integrity of the arbitration process.
The judge also had to decide if the parties should be assigned to another Mediator/Arbitrator or to terminate the Mediation/Arbitration altogether.
In this case, the judge found that the Arbitrator’s delays, compounded by the husband’s lack of cooperation, had caused fundamental unfairness to the wife and the delay was worse than what would have occurred if the case remained in court.
The judge found it troubling that the Arbitrator did not even apologize or provide a sufficient explanation for her delays.
In the end, the judge granted the wife’s motion to remove the Arbitrator and terminated the Mediation/Arbitration.
This case illustrates that significant delays by an Arbitrator, especially when it results in unfairness or prejudice to a party, may justify the termination of a Mediation/Arbitration and the return of the case to the courts for a formal trial – upending the original motivation for diverting cases to Mediation/Arbitration from court in the first place.
Steve Benmor, B.Sc., LL.B., LL.M. is the founder and principal lawyer of Benmor Family Law Group, a boutique matrimonial law firm in downtown Toronto. He is a Certified Specialist in Family Law and was admitted as a Fellow to the prestigious International Academy of Family Lawyers. Steve is regularly retained as a Divorce Mediator, Arbitrator and Parenting Coordinator. As a Divorce Mediator, Steve uses his 30 years of in-depth knowledge of family law, court-room experience and expert problem-solving skills in Divorce Mediation to help spouses reach fair, fast and cooperative divorce settlements without the financial losses, emotional costs and lengthy delays from divorce court.
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