How a divorce procedure became “Expensive, acrimonious and protracted family law litigation”

That is how the Ontario Court of Appeal began its decision in Murphy v. Murphy [2015] O.J. No. 441, a divorce procedure, before commenting on the use of private mediation-arbitration as an alternative to court.

What happened in this divorce procedure

It would seem that the usual drivers for Alternative Dispute Resolution (ADR) as an alternative to the court option was absent in this case. This mediation-arbitration led to a 23 day contested hearing before esteemed senior lawyer Malcolm Kronby Q.C. After the release of this decision, which consisted of divided success, an appeal and a cross-appeal to the Superior Court took place. The appeals judge addressed the preliminary question of whether to hear the appeal where underlying orders were in default by the Respondent. The appeals judge determined that to hear the Respondent’s submissions would be to reward his deliberate and willful misconduct and refused to entertain his submissions. On appeal, the Ontario Court of Appeal found that the appeals judge erred in law in two ways. First, he applied the wrong test to the sufficiency of the arbitrator’s reasons. The second error was that DBS applied. But rather than ending the case then and there, the Ontario Court of Appeal returned the case back to Mr. Kronby for a decision on retroactive child support based on DBS and how much is owed.

It would seem that some cases that are diverted out of court to ADR should have just stayed in court from the beginning.