Kroupis-Yanovski v. Yanovski
2012 ONSC 5312
Superior Court of Justice, Herman J. September 21, 2012
Family law — Arbitration — Use of final offer selection in family law
arbitrations to determine financial and property issues not contrary to
law — Arbitration not required to mirror court process — Parties agreeing to final offer selection and husband taking position that he did not
want to vary process to permit arbitrator to select parts of each offer —
Husband’s appeal from arbitrator’s decision choosing wife’s offer
The parties referred the issues of child and spousal support and the equalization of net family property to arbitration, and agreed to proceed by way of final
offer selection. After receiving the parties’ initial offers and submissions, the arbitrator offered the parties the option of dealing with the offers on an issue-by-issue basis. The husband clearly indicated that he did not want to alter the process and confirmed that the arbitrator had no choice but to select one offer in its
entirety. The arbitrator chose the wife’s offer. The husband appealed, arguing
that the arbitration did not comply with the law as ( i) final offer selection is ill-suited to resolve multiple issue disputes; ( ii) the process did not provide an opportunity to provide sworn testimony or to cross-examine; and ( iii) the arbitrator’s
reasons were inadequate.
Held, the appeal should be dismissed.
The law does not preclude the use of final offer selection in family law arbitrations to determine financial and property issues. The requirement that an
arbitration must comply with Ontario law and Canadian law does not mean
that the arbitration process must mirror the court process. The fact that the
order appointing the arbitrator provided that the arbitrator was to have all of
the powers of a Superior Court judge did not mean that the arbitrator was
required to follow the procedures of a Superior Court trial nor did it mean that
he was required to use all the powers available to a Superior Court judge.
There is no requirement that a family law arbitration be conducted by way of
an oral hearing with sworn testimony and the opportunity to cross-examine
and re-examine. The parties were treated equally and fairly, and each party
was given an opportunity to present his or her case and to respond to the
other party’s case. The parties agreed that the arbitrator would provide brief
reasons. While the arbitrator’s reasons were not lengthy, he explained why
he reached his decision, and the reasons were sufficient for the purpose of
Berry v. Berry,  O.J. No. 5006, 2011 ONCA 705, 285 O.A.C. 366, 7 R.F.L.
(7th) 1, 343 D.L.R. (4th) 501, 209 A.C.W.S. (3d) 595; Berry v. Berry,  O.J.
No. 6248, 7 R.F.L. (7th) 29, 2010 CarswellOnt 10983,  W.D.F.L. 45 (C.A.);
Combined Air Mechanical Services Inc. v. Flesch (2011), 108 O.R. (3d) 1, 
O.J. No. 5431, 2011 ONCA 764, 286 O.A.C. 3, 97 C.C.E.L. (3d) 25, 14 C.P.C. (7th)
242, 13 R.P.R. (5th) 167, 211 A.C. W.S. (3d) 845, 93 B.L.R. (4th) 1, 10 C.L.R. (4th)
17; R. (N.E.) v. M. (J.D.),  N.B.J. No. 308, 2011 NBCA 57, 12 R.F.L. (7th)
70, 377 N.B.R. (2d) 147, 343 D.L.R. (4th) 223, 207 A.C. W.S. (3d) 509, consd
Other cases referred to
Hercus v. Hercus,  O.J. No. 534,  O. T.C. 108, 103 A.C. W.S. (3d) 340
(S.C.J.); Ierullo v. Ierullo,  O.J. No. 3912, 216 O.A.C. 78, 32 R.F.L. (6th) 246,