Family Arbitration

Arbitration is a process where each person in a dispute tells his or her side of the dispute to a neutral person, called the arbitrator, and asks the arbitrator to make a decision that resolves the dispute. Each person may present witnesses and documents as evidence to support their side of a dispute and can make arguments to support the decision that they want the arbitrator to make. You can use an arbitration process to resolve issues with a spouse or partner, due to your separation, or with the other parent of your child or children. Arbitrators can be asked to resolve issues pertaining to spousal support, child support, custody of and access to children and property division.

Family arbitrations in Ontario are conducted and regulated under the provisions the Arbitrations Act, 1991, R.S.O. 1991. c.17, and the regulations passed in relation to it, the Family Law Act, R.S.O. 1990, c. F.3, and the Family Law Statute Amendment Act, 2006, c. 1. The Ontario Ministry of the Attorney General has information on family arbitrations that can assist you to understand more about this form of dispute resolution process.

Advantages of a Family Arbitration Process

• Arbitrations are private processes, while Court processes are public.
   
• You choose your arbitrator, but you cannot choose the Judge if you are in a Court process. Before you retain an arbitrator, you can seek recommendations from other people, as well as information about an arbitrator’s experience and qualifications.
   
• Arbitration can happen more quickly than an interim or final Court process. This means you can have a resolution more quickly.
   
• Parties can agree to a process in the arbitration that is less formal than a Court process. Any procedure agreed to must be fair to both parties. You can represent yourself on some, or all, of the issues to be determined by the arbitrator or you can have a lawyer represent you.
   
• Arbitrations can be less costly than Court processes when they are more stream-lined, even though you share the cost of the arbitrator’s time. You can agree to allow the arbitrator to determine if one party should pay a greater share of the cost of the arbitration where that party has unsuccessfully pursued an issue or has acted in an unreasonable manner which has added cost to the arbitration process. It is important to note that not all arbitration processes are less costly; if you expect the arbitrator’s decision to be contested by the other party, you may end up in Court fighting about the arbitration, as well as the original dispute, which can be more expensive than proceeding directly to Court. 

Types of Family Arbitration Processes

Family Arbitrations occur when two people agree to arbitrate some, or all, of the issues between them that arise from their separation after marriage or cohabitation or that arise in relation to having parented a child or children. This form of arbitration is defined in the Family Law Act as dealing with any matter that could be dealt with in a marriage contract, separation agreement, cohabitation agreement or paternity agreement, as these are defined in that Act.

Secondary Arbitrations occur where parties have a separation agreement, an award from an arbitration or a court order and generally address issues arising from the prior document. Clarifying or adapting arrangements for children when circumstances change or altering spousal or child support arrangements are often addressed in Secondary Arbitrations.  

If you have signed a marriage contract or a cohabitation agreement, an arbitration of issues arising from or following the signing of these agreements only occurs after a dispute has arisen and is a Family Arbitration and not a Secondary Arbitration. The distinction is important because there are different requirements for legal advice and third-party screening for these two processes.

If you want to proceed with a Family Arbitration or a Secondary Arbitration you and the other party sign an Arbitration Agreement. The arbitrator receives his or her mandate and powers from the Arbitration Agreement. In a Secondary Arbitration the mandate and terms of the arbitration may be set out in your prior separation agreement or parenting agreement. The Arbitration Agreement states the name of the arbitrator, the issues you agree to arbitrate, that the arbitration is exclusively governed by the law of Ontario or the law of another province and the basis upon which the award can be appealed.

All parties to a Family Arbitration must also certify in the Arbitration Agreement that they have received independent legal advice. The arbitrator must certify that the parties have been screened separately by a third party for domestic violence and power imbalances and that the arbitrator has considered a report from that screening and must also state that he or she has had appropriate training approved by the Attorney General.

Third party screening is important because it ensures that you and the other person are ready and able to effectively participate in an arbitration. The third-party screener can place conditions on the arbitration proceeding, for example, by providing conditions to ensure the safety of a party or to address a power imbalance or difficulty for one or both parties to be able to effectively participate in the arbitration. The third-party screener can inform the adjudicator that it is inappropriate for the parties to participate in the arbitration. The screener’s report and conditions are given to the arbitrator, but details of the interviews are not provided.

Parties to a Secondary Arbitration are not required to be screened separately by a third-party screener, nor are they required to certify that they have received independent legal advice before beginning an arbitration. This is because it is presumed the parties have already had these protections in the context of the proceeding or agreement that gave rise to the Secondary Arbitration.

If you choose to proceed with a Secondary Arbitration before me, I will ask you to be screened by a third-party screener to ensure that you and the other person are able to effectively participate in an arbitration process and so the process can be adapted to address concerns of violence and power imbalances. I may also recommend that you receive independent legal advice before signing an Arbitration Agreement or starting an arbitration process based upon a signed agreement.