After 14 years of marriage and four children, between the ages of 8 and 14, Elisa and Christos Lekakis separated, and in July 2021 Ms. Lekakis filed a Notice of Family Claim. (Lekakis v. Lekakis 2023 BCSC 376). In January 2022 the parties engaged an arbitrator to resolve the issues of interim parenting time and interim child support, after having difficulty securing court time in chambers. The arbitration took place over two days, and three weeks later, the arbitrator released the award.
Ms. Lekakis’s proposal for parenting time saw her with a greater amount of parenting time than her husband, who had suggested a 4/3 3/4 schedule of equal parenting time. The arbitrator selected the mother’s schedule, which was comprised of a four week repeating pattern, reflecting 28 days. Of the 28 days, 12 were shared, meaning that each parent had some parenting time on those days, 13 days were reserved for Ms. Lekakis exclusively, and 3 days were Mr. Lekakis’ exclusively.
The arbitrator reasoned that the mother’s schedule, which provided her with the majority of the actual time, was in the children’s best interests, focusing on the quality of time that her schedule provided. The arbitrator noted that the father’s schedule did not provide enough weekend parenting time for Ms. Lekakis.
Based on the interim parenting award, the arbitrator then determined the issue of child support, finding that the mother’s income was $90,000 and the father’s income was $97,000. The arbitrator held that pursuant to the Child Support Guidelines, and the “shared coparenting of the children”, Ms. Lekakis would pay $2,165 to her husband and he would pay $2,309 to her, which in accordance with section 9 of the Guidelines required Mr. Lekakis to pay his wife $144.00 a month.
Ms. Lekakis appealed the child support order arguing that the imposition of a section 9 analyis was an error in law, as her husband’s parenting time did not amount to 40% of the time as required by section 9.
The appeal court first considered what the appropriate standard of review was for an appeal of an arbitrator’s award, noting the confusion in the recent jurisprudence as a result of the Supreme Court of Canada’s decision in Canada (Minister of Citizenship and Immigration) v. Vavilov 2019 SCC 65.
The ratio of Vavilov is that “reasonableness” is the presumptive standard of review for an administrative decision, but that presumption can be rebutted where the legislature has indicated that it intends a different standard to apply or where the rule of law requires that the “correctness” standard be applied. Where the legislature has provided for an appeal to a court, the court would apply the correctness standard to questions of law and the palpable and overriding error standard to questions of fact and questions of mixed fact and law, when the legal principle is not extricable.
However, adding to the present legal confusion, the court noted that three recent decisions of the British Columbia Supreme Court held that the reasonableness test still applies, despite Vavilov, (Spirit Bay Developments v. Scala Developments 2021 BCSC 1415; Grewal v. Mann 2022 BCSC 555; and Goel v. Sangha 2022 BCSC 1476), while several other recent cases declined to address the question of standard of review finding that the appeal outcome would be the same under either standard of review. (JEA v. VJA 2022 BCSC 171; AEE v. MTE 2022 BCSC 1534; and Nolin v. Ramirez 2020 BCCA 274)
Further, the court queried whether an appeal of an interim arbitration award ought to be decided on the same standard of review that applies to an appeal of a Master’s interim order, such that an appeal would not be entertained unless the order was “clearly wrong”, except where the order resulted in a order vital to the final issue in the case, which called for a re-hearing as the appropriate form of appeal.
Neither counsel made full submissions on the issue of standard of review so the court applied the approach in Nolin and Mann, finding that even on the most deferential standard the appeal must be allowed.
The court then addressed the arbitrator’s error, identifying the principles that apply to a section 9 Guideline analysis:
- A decision maker must make a finding of fact as to the amount of time over a year in which the parties exercise parenting time;
- There is no single method to employ in determinting the amount of time a parent exercises for the purpose of section 9;
- Where an order spells out when one party’s time begins and ends, that party does not have time beyond that specified in the order;
- It is an error of principle to treat school time as neutral in the calculation;
- It is not open to the court to utilize section 9 unless the 40% threshold is met, however, if it is apparent on any view of the case that the arrangement is very close to 40% (“within a hair”) then it is a matter of judgment, not amenable to a simple time accounting exercise, where the broader context must be considered.
The court then assessed the arbitrator’s parenting decision and allowed the appeal with costs to Ms. Lekakis. The analysis showed that Mr. Lekakis had between 32% and 35% of parenting time, and was ordered to pay the full amount of child support of $2,309 a month.