Top Five Points About Family Arbitration
Family arbitration is becoming an increasingly-common option for the resolution of certain kinds of family law disputes. Although it is not designed as a comprehensive substitute for all family law procedure and the more traditional dispute resolution mechanisms, and on certain narrow issues it can replace costly and time-consuming litigation in some circumstances.
Here are the top five points to know about family arbitration and how it works in Ontario:
1) What is arbitration?
The concept of “arbitration” involves each side of a family dispute telling his or her side of the story before an “arbitrator”, i.e. an individual mutually-chosen to act as an impartial decision-maker. The arbitrator is then asked to render a decision on the merits. Generally speaking, it is a less formal and rigid procedure than is used in a traditional courtroom, although it still involves each sides putting forward documents and witnesses’ testimony as evidence in support of his or her position. There is some latitude in connection with the procedure used, but in any case it must be equitable to both sides of the dispute and must adhere to the requirements of the provincial Arbitration Act, 1991.
2) The authority for family arbitration
The Family Law Act, together with the Arbitration Act, 1991 and its regulations, govern family law arbitrations and the procedure involved. This legislation also sets out requirements for the training of arbitrators, and mandates that arbitrators file certain information with the Ministry relating to any completed family arbitrations. Only arbitration awards that have been conducted in accord with this legislation, and in accordance with the law of Ontario or another province/territory, can be enforced by an Ontario court.
3) What can be arbitrated – and what cannot
Arbitrators are only allowed to resolve certain kinds of family law disputes, such as spousal or child support, custody and access to children, and division of property. The scope of the arbitrator’s decision-making mandate – including the precise issue to be decided – must be set out in an arbitration agreement that is signed by both (or all) parties to the family dispute. Note that if the arbitration award relates to a child or children, then it must be made in their best interests.
Conversely, there are certain issues that are beyond an arbitrator’s mandate. Specifically, an arbitrator cannot:
• 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;
• decide anything that the parties could not have decided for themselves.
Also, family arbitrations that are based on any principles (including religious ones) that do not conform to Canadian law and legal principles will have no legal effect and are unenforceable in court.
4) Independent legal advice required
Under the Family Law Act, it is mandatory for each party to a family arbitration to obtain independent legal advice from a lawyer, who will provide advice about the nature of family arbitration and the various consequences. (In fact, an arbitration award that is purportedly made without the parties having independent legal advice is unenforceable.) Each lawyer – who is separately paid by the individual he or she represents – provides a certificate of independent legal advice before the arbitration begins. This certificate must accompany the arbitration agreement signed by the parties.
5) Enforcement of arbitration awards
From a general standpoint, the enforcement of an arbitration award is governed by the legislation, which provides for a simplified procedure and stipulates the requisite forms and notices. Beyond those requirements, however, the manner in which an arbitration award may be enforced is partly dictated by the nature of the award itself. For example, if the award involves a monetary payment, then it can be filed with the court and enforced just like a court judgment would be. On the other hand, child custody and access awards can only be enforced by a court if the award is considered to be in the child’s best interests; the applicable test is set out in the Children’s Law Reform Act. An award relating to spousal support operates in the same manner as a separation agreement; if it is unconscionable in its scope or operation, then it will not be enforceable.
