Family Law Arbitration

Family law arbitration offers a unique way to resolve disputes without going to court. In this process, both parties agree on an arbitrator who conducts a trial-like process and makes a decision, called an “award”. 

This method is governed by the Family Law Act and the Arbitration Act, ensuring that decisions are made based on legal principles. 

Arbitration can best be thought of as “private court”. It’s closed to the public, and the parties have control over the timing, choice of arbitrator, and, to the best of their ability, the costs of the process. It’s a highly advantageous process when parties have the financial resources to pay the arbitrator. 

Alternative dispute resolution processes like arbitration can be especially beneficial in family law disputes. It allows for more flexible and personalized outcomes compared to traditional court rulings. The arbitration decision is legally binding and must be followed by both parties. This process is designed to be fair and impartial, providing a balanced solution.

This method can handle both financial matters and issues related to children. Unlike court proceedings, it allows the involved parties to maintain more control over the process. This is done by agreeing on how the arbitration will proceed and selecting the arbitrator themselves.

The only issue an arbitrator does not have the authority to decide is the actual divorce. This is something that the parties must apply to the court for. However, if the arbitrator has made an award on all the other issues, the divorce may proceed on an uncontested basis.

 

Key Components of Arbitration Process

Selection of the Arbitrator

Choosing the right arbitrator is a vital first step. The arbitrator must be a neutral party with experience in family law, and who is qualified as an arbitrator. Both parties must agree on who this person will be. 

Experience matters because it ensures the arbitrator understands the complex nature of family disputes. The arbitrator’s neutrality guarantees that their decisions are unbiased, focusing on the best outcomes for all involved.

 

Arbitration Agreement

An arbitration agreement sets the framework for the process. This formal document outlines what will be resolved through arbitration. It is created after both parties agree to the arbitration and select an arbitrator.

The agreement specifies the issues needing resolution, such as:

• Financial Statements & Disputes
• Child Custody Arrangements 
• Spousal Support Agreements
• Property Agreements
• More depending on your unique circumstances

This document is one of the most important factors in arbitration as it clarifies each party’s expectations, making the process smoother, and less contentious. Most importantly, it is the document that gives the arbitrator the power to make decisions. In other words, the arbitrator can only make decisions about issues that the parties have agreed to give the arbitrator the authority to decide.

 

Pre-Arbitration Procedures

Before the arbitration begins, several steps are taken to prepare. These pre-arbitration procedures include a screening by the arbitrator for family violence issues, conference calls between the arbitrator and the lawyers, and, if the parties engage in a mediation-arbitration process, then the arbitrator will also conduct a mediation (or additional if needed).

This call helps confirm the specific matters that need resolving. Documents and evidence may also be exchanged during this time, allowing both parties to present their strongest case. Additionally, both parties must agree on the rules and procedures to be followed during the arbitration, ensuring a fair and impartial process.

 

Advantages Over Litigation

One main advantage of family law arbitration is the confidentiality it offers. Unlike court trials, arbitration proceedings are private, which can be important in sensitive family matters. It also tends to be faster and less formal than litigation, which often leads to quicker resolutions. 

By choosing arbitration, families can avoid the lengthy delays that are common in the traditional court system. Additionally, the parties usually have more influence over the scheduling and format of hearings, making the process more convenient and efficient.

 

Legal Considerations in Family Law Arbitration

Family law arbitration involves several important legal considerations, including obtaining independent legal advice, handling evidence appropriately, and maintaining confidentiality of records.

Independent Legal Advice

Both parties are required by the Arbitration Act to seek advice from their own lawyers about the content of the arbitration agreement. If a party intends to conduct the arbitration without legal counsel, that is an issue that will need to be raised with the arbitrator before the arbitration agreement is signed, as the arbitrator will have to decide whether they are willing to conduct the arbitration without a party having legal counsel.

If a party proceeds without legal counsel at the arbitration, they should obtain legal advice before, during, and after the arbitration process. Lawyers help clients understand their rights and obligations under Ontario law. They review the arbitration agreement, ensuring its terms are clear and just. Without any independent legal advice future disputes may arise.

 

The Arbitration Act and Family Law

Family law arbitration in Ontario is governed by specific regulations to ensure fairness and compliance with provincial standards. The key areas of focus are mandatory provisions, voluntary clauses, and intersections with the Family Law Act.

Mandatory Provisions

The Arbitration Act, 1991 sets out essential guidelines for family law arbitrations. These mandatory provisions are designed to protect all involved parties.

1. Arbitration Agreements: All agreements must follow Canadian or Ontario law. Agreements made after 2007 must include specific provisions as outlined by O. Reg. 134/07.
2. Child Welfare: Arbitrators have a legal duty to report any signs of child abuse to child welfare agencies or the police.
3. Fairness and Equality: The arbitral process must be fair, ensuring that both parties have equal opportunities to present their case.

Voluntary Clauses

In addition to mandatory rules, there are voluntary clauses that parties can include to tailor the arbitration process to their specific needs.

1. Choice of Arbitrators: Parties can agree on the arbitrator, ensuring someone with relevant experience is chosen.
2. Procedure and Evidence: Parties can define how evidence is handled and what procedural rules apply, as long as they do not conflict with mandatory Ontario laws.
3. Appeals: While some arbitration decisions are final, parties can agree to terms that allow for appeals under certain conditions.

 

Intersections with Family Law Act

The Family Law Act intersects significantly with arbitration, particularly in family law matters.

1. Best Interests of the Child: Determinations involving children must prioritize their best interests, adhering to section 24 of the Children’s Law Reform Act.
2. Enforcement: Decisions made through arbitration can be enforced by family courts, provided they meet specific legal criteria.
3. Legal Compliance: All family law arbitrations must conform to the principles and regulations set out in both the Arbitration Act and Family Law Act, ensuring legal oversight and compliance.

 

Power Imbalances and Safety

To ensure fair and safe family law arbitration, it’s mandatory to address power imbalances and take steps to protect vulnerable parties. Screening for domestic violence and protecting vulnerable parties are key.

Screening for Domestic Violence

Screening for domestic violence is a must during family law arbitration. It helps in understanding if one party may be at risk of harm. This screening is important to identify any history of abuse and ensure both parties can participate safely. It often involves questionnaires, interviews, and other assessment tools.

Professionals must be trained to recognize signs of domestic violence and understand the dynamics of power and control within relationships. They should look for indicators like physical injuries, fearfulness, or controlling behaviours.

Effective screening can prevent situations where a power imbalance might lead to unfair outcomes. It also helps in deciding if alternative dispute resolution methods, like mediation, are appropriate or if more protective measures are needed.

 

Protecting Vulnerable Parties

Protecting vulnerable parties involves several steps. These parties can include children, individuals with disabilities, or those with a history of abuse. The goal is to ensure everyone is safe and receives fair treatment.

Protective measures can range from having security present during meetings to arranging separate spaces for each party. This can include having emergency contacts readily available and planning how to exit situations safely.

Professionals should ensure that vulnerable parties understand their rights. Providing legal support or advocates can be crucial in these situations. 

 

Award and Final Decision

An arbitration award is the final decision made by an arbitrator, covering the issues at hand like child custody, division of property, or spousal support. Once the award is issued, it becomes enforceable, just like a standard court order. The parties involved must comply with the terms set by the arbitrator.

Appealing an Arbitration Award

Although arbitration is originally meant to be final, there are instances where an award might be appealed. An appeal can be made if there’s a legal error or if one party believes the arbitrator acted unfairly. The appeal process involves appealing the arbitration award to the Superior Court of Justice, and in a very time sensitive manner. The court will review the evidence to determine if the award should be upheld, modified, or overturned.