Ontario Court Removes Arbitrator for Delay: What Divorcing Couples Need to Know About Arbitration Pitfalls

Arbitration is often viewed as a faster, more private alternative to court for resolving family law disputes in Ontario. But what happens when the arbitrator themselves becomes the source of delay? A recent Ontario Superior Court decision, Maharajh v. Mathura, 2024 ONSC 5737, highlights the risks families face when arbitration breaks down—and what can be done about it.

This decision is a critical reminder for separating couples and their legal counsel to carefully vet arbitrators, include clear timelines in arbitration agreements, and understand their rights under Ontario’s Arbitration Act when the process stalls.

Case Overview: Arbitration Delayed by Arbitrator’s Inaction

The parties in Maharajh v. Mathura were engaged in a family law dispute involving equalization of property, child support, and section 7 expenses. Although a trial had been scheduled, the parties opted for private arbitration. Mediation efforts failed, and the arbitration process began—but then ground to a halt.

From April to August 2024, the arbitrator ceased responding to correspondence. Despite repeated attempts by one party to move the process forward, no meaningful progress was made, and no arbitration schedule was set. The silence left the parties with no path forward, prompting one party to apply to the Superior Court for the arbitrator’s removal.

Legal Framework: Section 15(1) of the Arbitration Act, 1991

Under section 15(1) of Ontario’s Arbitration Act, a court may remove an arbitrator if:

1. They have failed to conduct the arbitration in a timely manner.
2. The delay has caused prejudice or affected the integrity of the arbitration process.

In this case, the court found that both conditions were satisfied. The arbitrator’s prolonged silence, without justification, constituted an undue delay. Moreover, the delay was prejudicial, as it prevented the parties from resolving their issues in a timeframe that would have been faster had they remained in the court system.

The court concluded that continuing with the arbitration would further frustrate the parties’ ability to resolve their dispute efficiently and fairly. The arbitrator was removed, and the matter returned to the litigation track.

Key Takeaways for Ontario Family Law Clients

This decision serves as a valuable warning to both legal professionals and separating couples considering arbitration. While arbitration can offer significant advantages—privacy, speed, and flexibility—it is not without its risks.

Here are several practical considerations to ensure arbitration remains an effective dispute resolution tool:

1. Choose an Arbitrator Carefully: Conduct due diligence on the arbitrator’s experience, capacity, responsiveness, and availability. Ensure they are able to commit to your matter within a reasonable timeframe.
2. Build Accountability Into the Arbitration Agreement:Include clear expectations in the arbitration agreement, such as timelines for issuing rulings, rules around communication, and mechanisms for addressing unreasonable delays.
3. Preserve Evidence of Delay:Keep records of emails, calls, and written communication showing efforts to engage the arbitrator. This documentation may be critical if you later seek court intervention.
4. Know When to Act:If arbitration becomes unreasonably delayed, Ontario’s Arbitration Act provides a legal remedy to remove the arbitrator and either appoint a new one or return to the court process.
5. Understand the Risks:Arbitration depends on all parties—and the arbitrator—acting in good faith. If any of these components break down, the benefits of arbitration may quickly erode.

Maharajh v. Mathura demonstrates that when an arbitrator becomes unresponsive, the integrity of the process is compromised. For families navigating separation or divorce in Ontario, arbitration remains a valuable tool—but it must be approached with careful planning, clearly defined expectations, and a willingness to pivot if the process fails.

If you are considering arbitration in your family law matter, ensure you speak with an experienced Ontario family lawyer about how to structure your agreement and what to do if delays occur.