Top provincial court upholds decision to set aside arbitration award’s school selection term
The Court of Appeal for British Columbia recently upheld an arbitration award allowing a woman to relocate with her child to Rome, Italy, despite opposition from her former husband.
The parties in this case began living together in Victoria, BC. in 2014 and married in 2016. Their only child was born a year later. They separated in March 2020 and entered into a separation agreement in September 2020, which provided for shared guardianship and equal parenting time.
In May 2021, the mother informed the father of her intention to relocate the child to Rome, where her new partner was living. The exes explored the possibility of this new partner moving to Victoria but found it impractical.
Unable to agree upon the relocation issue, the parties entered into a mediation-arbitration process in August 2022. The next month, the arbitrator issued an award allowing the mother to relocate with the child to Rome. The arbitrator decided that the advantages of relocation outweighed its disadvantages.
One term of the arbitration award stated that, in the event of a disagreement between the parties, the mother could select the child’s school, and the father could ask an arbitrator or a court for directions.
The father appealed to the British Columbia Supreme Court. He argued that the arbitrator exceeded his jurisdiction in including the school selection term in the award. The Supreme Court judge agreed, set aside the school selection term, and upheld the rest of the arbitration award.
The choice of the child’s school was within both parents’ equal authority as provided by their separation agreement and was not within the arbitrator’s scope, the judge said. However, the judge saw no need to set aside the rest of the arbitration award.
In Botten v. Dupuis, 2024 BCCA 284, the British Columbia Court of Appeal affirmed the original arbitration award allowing the relocation of the mother to Rome with the child. The appeal court also upheld the lower court judge’s decision to set aside the school selection term.
The appeal court rejected the father’s argument that the lower court judge failed to consider the impact of setting aside the school selection term on the arbitrator’s overall award. The school selection issue was not the sole determinative factor in the arbitration award, the appeal court held.
The award considered multiple factors, including the benefits of the child living in a two-parent household and the superior parenting time and travel proposals offered by the mother, the appeal court explained.
The appeal court stressed that both parents would continue to share the responsibility of choosing the child’s school and could resolve any disputes that might arise through arbitral or court processes, if necessary.
The appeal court also disagreed with the father’s claim that the arbitration process in this case was procedurally unfair. Both parties had the opportunity to present evidence regarding schooling options during the arbitration, the appeal court ruled.
