What is Arbitration?

An arbitration is a dispute resolution process through which a private arbitrator decides how specific legal disputes will be resolved. The arbitrator may be a lawyer, a mental health professional or someone with other professional qualifications.

I pride myself in having a solid understanding of family law, rules of evidence and the skills required to create and manage a fair arbitration process for both parties.  I acknowledge the importance for clients to feel confident that they have been heard and that their views have been considered before important decisions which will impact them in a variety of ways are made.

There are four types of arbitrations:

  • family arbitrations

  • secondary arbitrations

  • arbitrations which take place as part of a mediation-arbitration process

  • arbitrations which take place as part of a parenting co-ordination process

Family Arbitrations

Family arbitrations are regulated by the Government of Ontario through the Arbitration Act, 1991, Ontario Regulation 134/07 and the Ministry of the Attorney General’s website relating to family arbitrations.

A family arbitration is a private dispute resolution process through which parties appoint a specific individual who has the relevant professional qualifications, skills and experience to hear evidence and make decisions about some or all of the following issues, most often for the first time:

  • parenting issues

  • child support

  • spousal support

  • security for support obligations

  • health and dental coverage for the family

  • property issues

  • costs

A family arbitration is an alternative to court proceedings. There are advantages and disadvantages to having legal issues decided through a family arbitration. Although the family arbitration process is very attractive for many people, it is not a suitable process for everyone.
 

Advantages

The following are the more significant advantages of having your legal disputes resolved through a family arbitration:

  • A family arbitration is a private process. Only the parties, their lawyers (if the parties are represented by lawyers) and witnesses may attend the arbitration hearing. No members of the public are permitted to attend.

  • In the vast majority of court proceedings, a different judge is assigned to each step in the case. Judges have different legal backgrounds, not necessarily in family law. The parties to a family arbitration are able to choose their arbitrator based on the arbitrator’s professional credentials, training, skills and experience.

  • Family arbitrations proceed much more quickly than court proceedings because there are no mandatory steps in the arbitration process. The arbitrator and the parties have the discretion to structure the process in the most efficient and cost-effective way.

  • In most cases, the cost of a family arbitration is far less than the cost of protracted negotiations or court proceedings.

Disadvantages

The following are some of the more significant disadvantages of having your legal disputes resolved through a family arbitration:

  • Parties who are involved in court proceedings pay minimum court fees to start proceedings and file documents with the court. They are not required to pay judges for their time. Arbitrators, on the other hand, charge an hourly rate for their time. When the legal issues which are in dispute are complicated, lawyers may also need to be involved in the arbitration process, with the result that the parties are required to pay both legal fees and arbitration fees.

  • Some people are more inclined to respect court orders rather than arbitration awards. Enforcing an arbitration award may be costly and cumbersome and awards may be appealed to the court.

  • It is preferable for some families to have their disputes heard and decided in a public place, with all of the protections that may be afforded through the public court system.

Important Things You Need to Know

The following are some of the important things that you need to know about family arbitrations:

  • In order for a family arbitration to take place, the parties must sign a family arbitration agreement, which is a legally binding contract.

  • The family arbitration agreement must name a specific arbitrator who the parties have chosen to decide their dispute(s) or, if the parties cannot agree, has been appointed by the court.

  • The Government of Ontario mandates that arbitrators who hear family arbitrations decide all issues which are in dispute in accordance with either the law of Ontario and the law of Canada as it applies in Ontario or the law of another Canadian jurisdiction and the law of Canada as it applies in that jurisdiction.

  • The Government of Ontario prohibits parties from waiving all appeal rights. If a family arbitration agreement does not define the circumstances in which the arbitrator’s award may be appealed, the appeal provisions of the Arbitration Act, 1991 apply.

  • The Government of Ontario requires that both parties receive independent legal advice before signing their family arbitration agreement. Each party’s lawyer is required to sign a certificate of independent legal advice. Both certificates must be attached to the contract.

  • The Government of Ontario requires that every arbitrator who conducts a family arbitration sign a certificate which forms part of the family arbitration agreement, confirming that prior to conducting the arbitration, they have received the appropriate training approved by the Ministry of the Attorney General. Arbitrators are required to keep their training current.

  • There are different mandatory training requirements for those arbitrators who are lawyers and who are members of the Bar of Ontario and for those arbitrators who have other professional qualifications, such as social workers, psychologists and financial experts. Before you choose an arbitrator, you need to confirm that the arbitrator’s training is current.

  • The Government of Ontario requires that both parties who wish to have their disputes resolved through a family arbitration be screened by someone other than the arbitrator for domestic violence and power imbalances and that the screener deliver a report to the arbitrator. The screening report will generally contain one of three recommendations:

    • that the family arbitration proceed

    • that the family arbitration proceed, provided that specific structures or safeguards are in place

    • that the family arbitration not proceed

  • The Government of Ontario requires that the arbitrator receive and consider the screening report to determine whether or not the family arbitration should proceed and that the arbitrator consider the screening results throughout the arbitration process.

  • Ultimately, every arbitrator has the complete discretion to proceed or decline to proceed with the family arbitration once they have received the screening report.

  • Arbitrators have an ongoing duty to screen parties throughout the arbitration process to ensure that they have the capacity to participate in the arbitration process in an informed, consensual and meaningful way. Parties either on their own or with the assistance of lawyers need to be able to put in appropriate and relevant evidence, advocate their positions, understand the other party’s case and effectively respond to it.

  • Arbitrators have a statutory duty to manage the arbitration process. They are able to creatively design the process through which evidence is exchanged and submissions are made to suit the individual and unique needs of each family. If a relatively minor decision needs to be made quickly (for example, about a child’s attendance at a funeral), the arbitrator may ask the parties to participate in a telephone conference to make verbal submissions before making an arbitration award. On the other hand, if one of the parties owns several companies and the parties are not able to agree about that party’s income, the arbitrator has the authority to appoint an expert to provide an opinion about the level of income which may be available to pay child and / or spousal support.

Secondary Arbitrations

The Government of Ontario also regulates secondary arbitrations through the Arbitration Act, 1991, Ontario Regulation 134/07 and the Ministry of the Attorney General’s website relating to family arbitrations.

A secondary arbitration process takes place in accordance with the terms of an existing separation agreement, court order or family arbitration award which contemplates future disputes between the parties relating to the ongoing management or implementation of the agreement, order or award. The agreement, order or arbitration award itself states that these future disputes will be addressed through a secondary arbitration. 

Sometimes the agreement, order or arbitration award names one or more specific arbitrators. Sometimes the agreement, order or award will simply define a process through which the parties or their lawyers appoint an arbitrator. If no arbitrator is named and the parties do not agree about who should be named as the arbitrator, the court will appoint an arbitrator.
 

Important Things You Need to Know

The following are some of the important things that you need to know about secondary arbitrations in Ontario:

  • In order for a secondary arbitration to take place, the parties must sign an arbitration agreement, which is a legally binding contract.

  • The Government of Ontario mandates that arbitrators who hear secondary arbitrations decide all of the issues which are in dispute in accordance with either the law of Ontario and the law of Canada as it applies in Ontario or the law of another Canadian jurisdiction and the law of Canada as it applies in that jurisdiction.

  • The Government of Ontario prohibits parties from waiving all appeal rights. If a family arbitration agreement does not define the circumstances in which the arbitrator’s award may be appealed, the appeal provisions of the Arbitration Act, 1991 apply.

  • There is no legal requirement that parties who wish to have their disputes resolved through a secondary arbitration receive independent legal advice before a secondary arbitration takes place.

  • The Government of Ontario requires that every arbitrator who conducts a secondary arbitration sign a certificate which forms part of the arbitration agreement, confirming that prior to conducting the arbitration, they have received the appropriate training approved by the Ministry of the Attorney General. Arbitrators are required to keep their training current.

  • There are different mandatory training requirements for those arbitrators who are lawyers and who are members of the Bar of Ontario and for those arbitrators who have other professional qualifications, such as social workers, psychologists and financial experts. Before you choose an arbitrator, you need to confirm that the arbitrator’s training is current.

  • The Government of Ontario requires that both parties who wish to have their disputes resolved through a secondary arbitration be screened for domestic violence and power imbalances before the secondary arbitration process may proceed. Arbitrators may do the screening themselves. The screening is done by the arbitrator during confidential separate intake / screening meetings with each party.

  • The arbitrator is required to consider the information received from both parties before deciding whether or not the secondary arbitration should proceed and how the arbitration process may best be designed to address the issues in dispute in the most appropriate, efficient and cost-effective way. Both parties need to have the opportunity to participate in the secondary arbitration process in an informed, consensual and meaningful way.

  • There is no legal requirement that the parties to a secondary arbitration receive independent legal advice before participating in the arbitration process.

The following are examples of some of the issues which may be addressed through a secondary arbitration:

  • disputes about proposed changes to the parenting schedule set out in a separation agreement, court order or arbitration award;

  • disputes about parenting issues which have arisen after a separation agreement has been signed or a court order or arbitration award has been made;

  • disputes about changes to either party’s income;

  • disputes about proposed changes to child support;

  • disputes about how expenses relating to a child’s post-secondary education should be paid;

  • disputes about proposed changes to spousal support;

  • disputes about the terms of listing or selling the family home; and

  • disputes about the level of life insurance coverage a party is required to maintain to secure ongoing support obligations.

Arbitrations Which are Part of a Mediation-Arbitration Process

Arbitration proceedings which are part of a mediation-arbitration process are also regulated by the Government of Ontario through the Arbitration Act, 1991, Ontario Regulation 134/07 and the Ministry of the Attorney General’s website relating to family arbitrations.

Arbitrations which take place during a mediation-arbitration process are described in the section of my website entitled “Mediation-Arbitration”.
 

Arbitrations Conducted During Parenting Co-ordination

Arbitrations which take place during parenting co-ordination are described in the section of my website entitled “ Parenting Co-Ordination”.