Family arbitration has gained popularity for certain kinds of Family Law disputes. It does not substitute Family Law procedures and traditional dispute resolution mechanisms but allows for a less costly and less time-consuming litigation on certain narrow issues.
Here are the top five points to know about family arbitration and how it works in Ontario.
What Is Arbitration?
Arbitration involves a neutral arbitrator who listens to each side of the story. They are selected to act as an impartial decision maker who is asked to render a decision on the merits of the case and the situation. Arbitration is less formal and rigid than a traditional courtroom but does follow a formal process where formal documents and witnesses’ testimony are presented as evidence in support of each position. Even though there is some latitude in the procedure, the process must still adhere to the requirements of the provincial Arbitration Act, 1991. This makes the procedure equitable to both sides of the dispute.
The Authority for Family Arbitration
Family Law arbitrations are governed by the Family Law Act and the Arbitration Act, 1991 and its regulations. This legislation sets out certain requirements for family arbitrations including, the training of arbitrators, and mandates that arbitrators must file specific information with the Ministry relating to any completed family arbitrations. Arbitration awards are enforced when they are conducted in accordance with this legislation and with the law of Ontario or another province/territory.
What Can Be Arbitrated – And What Cannot
There are limits to the kinds of issues that family arbitration can address.
Some of the issues that can be addressed includes:
- spousal support
- child support
- access to children
- parenting disagreements
- division of property
Issues that are beyond an arbitrator’s mandate include:
- change official family status;
- grant a divorce;
- annul a marriage;
- declare that someone is or is not the parent of a particular child;
- make an order that is against the law, or which allows either party to break the law; or
- decide anything that the parties could not have decided for themselves.
An arbitration agreement is signed by both (or all) parties that must state the scope of the arbitrator’s decision-making mandate, including the precise issue(s) to be decided. If the arbitration award relates to a child or children, then it must be made in their best interests. Family arbitrations should be based on principles that conform to Canadian law and legal principles (excluding religious ones). Otherwise, the agreements may have no legal effect and are unenforceable in court.
Independent Legal Advice Required
An arbitration award that is made without the parties having independent legal advice is unenforceable. The Family Law Act makes it mandatory for each party to a family arbitration to obtain independent legal advice from a lawyer. The purpose of this advise is to help the parties understand the nature of family arbitration and the various consequences of engaging in the process. Each party’s lawyer (separately paid for by both parties) provides a certificate of independent legal advice before arbitration begins. This certificate must accompany the arbitration agreement signed by the parties.
Enforcement of Arbitration Awards
Generally, the enforcement of an arbitration award is governed by the legislation, which provides for a simplified procedure and stipulates the requisite forms and notices. However, depending on the nature of the reward, there may be certain requirements that dictate the manner in which an arbitration award may be enforced.
For example, if the arbitration award involves a monetary payment, then it can be filed with the court and enforced like a court judgement. Child custody and access awards on the other hand, can only be enforced if the award is considered to be in the best interests of child. The test for which is set out in the Children’s Law Reform Act. An award for spousal support operates like a separation agreement. If it is found to be unconscionable, it is not enforceable.