Family Law Arbitration

Family law mediation is a method of alternative dispute resolution (referred to as ADR) and is premised on cooperation and maintaining amicable relations between separating and/or divorcing spouses.

Family law arbitration provides another confidential method of ADR whereby a trained third-party (an arbitrator) is empowered with the ability to make final and binding decisions relating to most issues stemming from the dissolution of a marriage or common law relationship. All arbitrators are required, by law, to have received training approved by the Ministry of the Attorney General.

The issues arbitrated generally relate to:

• child custody and access,
• division of property and equalization payments, and
• child and/or spousal support.

The only matter that cannot be arbitrated is with regards to the issuance of a final divorce order. An application for a divorce must be filed with the court, which is the only institution able to render judgment on divorce and hand down a final order. Arbitrations cannot change official family status as an arbitrator cannot grant a divorce or annul a marriage.

The following statutes govern arbitration in the context of family law disputes:

• Arbitration Act, 1991, S.O. 1991, c. 17
• Family Arbitration, O. Reg. 134/07, and
• Family Law Act, R.S.O. 1990, c. F. 3

Arbitration Agreement

If arbitration is the method of dispute resolution selected and consented to by both you and your spouse, then your first step towards employing arbitration and reaching a full and final settlement of all issues would be to draft and sign an arbitration agreement which outlines:

• that you waive your right to go to court and litigate, and
• the conditions surrounding the arbitration, such as:
  • who will arbitrate,
  • where and when the arbitration will be conducted, and
  • what issues will be arbitrated.

Ensure that any and all issues that you would like to arbitrate are incorporated into the agreement regardless of how minor and insignificant they may seem. If the issue is important to you and if you are of the opinion that it could potentially cause future disputes then you should include it in the agreement and have an arbitrator make a final, binding decision because, pursuant to s.33 of the Arbitration Act, 1991, S.O. 1991, c. 17, an arbitrator is only authorized to make determinations on issues included in the Arbitration Agreement. Consequently, any decisions rendered on issues not included in the agreement will be unenforceable.

Screening for Domestic Violence

Another mandatory requirement that must be satisfied prior to the commencement of the arbitration is the screening of both parties for domestic violence or power imbalances. This requirement is pursuant to Section 58 of the Family Arbitration, O. Reg. 134/07.

Essentially what is required is that both parties be interviewed separately by a specially trained individual who is capable of determining and recognizing whether or not domestic violence is present or power imbalances exist between the parties.

Some examples of individuals generally capable of screening for domestic violence are:

• lawyers,
• arbitrators,
• social workers,
• psychologists, or
• other mental health professionals.

In so doing, the arbitrator can determine whether there is full and voluntary participation or whether or not he or she needs to impose certain safeguards to protect the vulnerable party (such as ensuring the parties are not present in the same room at the same time).

Should you require this screening, then do not hesitate to contact us here at Feldstein Family Law Group, as Andrew Feldstein is qualified to screen for domestic violence.

Regulations

58. The Lieutenant Governor in Council may make regulations,

4. requiring any arbitrator who conducts a family arbitration to have received training, approved by the Attorney General, that includes training in screening parties for power imbalances and domestic violence;
5. requiring that every arbitrator who conducts a family arbitration shall,
   
   1. ensure that the parties are separately screened for power imbalances and domestic violence, by someone other than the arbitrator, and
   2. review and consider the results of the screening before and during the family arbitration;

You should also be aware of the fact that when screening is conducted it is to ensure that children are protected as well, not only spouses. Therefore, once instances of violence are discovered and children are implicated, there is a statutorily imposed duty on arbitrators to report it to the appropriate child protection agency and it is an offence to fail to do so.

The Arbitration Procedure

The procedure that must be used to carry out the arbitration is not specified in the Arbitration Act, 1991, S.O. 1991, c. 17, Family Law Act, R.S.O. 1990, c. F. 3 or any of the regulations. Therefore, the parties engaging in arbitration are afforded great flexibility as they (or the arbitrator) are empowered with the ability to decide on the procedure to be employed and adapt it so to accommodate one another and their particular circumstances.

The only requirement, however, is that the procedure selected comply with all the relevant Acts and regulations and that it be fair to both parties. Therefore, this contemplates the full and frank disclosure of all relevant documents by both parties to ensure the best possible settlement. You should note that lawyers are not required to be present at this stage, i.e. during arbitration, as their presence is only required at the signing of the arbitration agreement. Note ss. 19-20 of the Arbitration Act, 1991, S.O. 1991, c. 17:

Equality and fairness
19. (1) In an arbitration, the parties shall be treated equally and fairly.

Idem
(2) Each party shall be given an opportunity to present a case and to respond to the other parties’ cases.

Procedure
20. (1) The arbitral tribunal may determine the procedure to be followed in the arbitration, in accordance with this Act.

Idem
(2) An arbitral tribunal that is composed of more than one arbitrator may delegate the determination of questions of procedure to the chair.

Arbitration is the method of dispute resolution that most closely resembles an actual trial:

• the parties vest ultimate decision-making authority in an impartial arbiter,
• the parties are able to present witnesses and documents as evidence to support their claims and conduct examinations or cross-examinations of same,
• the parties make opening and closing statements as well as present arguments to support the outcomes they hope to attain,
• the parties may or may not choose to retain counsel.
  • However, it is mandatory that prior to engaging in family arbitration and signing the arbitration agreement both parties obtain independent legal advice to ensure that they are informed of the nature and consequences of selecting arbitration making said choice both voluntary and fully informed. (This means that both you and your spouse waive your right to attend court to litigate while simultaneously vesting ultimate decision-making authority in an arbitrator.) Once obtained the lawyers who provide the parties with independent legal advice must complete a certificate, provided by the Ministry of the Attorney General, deliver it to their clients and attach it to the arbitration agreement.
• Once all arguments have been made the arbitrator is required to make a decision on the issues in dispute, also known as an arbitral award. The award is binding on both parties and enforceable by the either Superior Court of Justice or the unified Family Court if an application is filed therewith. Moreover, an arbitrator may make more than one award depending on the number of issues being arbitrated.

The Arbitral Award

An arbitrator is required by law to conduct all proceedings and make all decisions in accordance with laws of any province and Canada and failure to do so will result in the unenforceability of said award.

For example, any decisions that need to be made regarding the children of the marriage, i.e. custodial arrangements or support, must be decided in accordance with their best interests. As a result, the arbitrator must take into consideration s. 24 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 which lists specific factors that, if satisfied, evince the best interests of the child. Sections 59.6(1) of the Family Law Act, R.S.O. 1990, c. F. 3 and s. 38 of the Arbitration Act, 1991, S.O. 1991, c. 17 respectively, stipulate further requirements that need to be met in order for an award to be enforceable:

Conditions for enforceability
59.6 (1) A family arbitration award is enforceable only if,

1. the family arbitration agreement under which the award is made is made in writing and complies with any regulations made under the Arbitration Act, 1991;
2. each of the parties to the agreement receives independent legal advice before making the agreement;
3. the requirements of section 38 of the Arbitration Act, 1991 are met (formal requirements, writing, reasons, delivery to parties); and
4. the arbitrator complies with any regulations made under the Arbitration Act, 1991.

Form of award
38. (1) An award shall be made in writing and, except in the case of an award made on consent, shall state the reasons on which it is based.

Idem
(2) The award shall indicate the place where and the date on which it is made.

Formalities of execution
(3) The award shall be dated and shall be signed by all the members of the arbitral tribunal, or by a majority of them if an explanation of the omission of the other signatures is included.

Copies
(4) A copy of the award shall be delivered to each party.

Secondary Arbitration

It is also interesting to note that an award may contain a specific provision contemplating secondary arbitration.

Secondary arbitration is defined in the Family Law Act, R.S.O. 1990, c. F. 3 as:

a family arbitration that is conducted in accordance with a separation agreement, a court order or a family arbitration award that provides for the arbitration of possible future disputes relating to the ongoing management or implementation of the agreement, order or award.

It is typically used to clarify or adapt arrangements previously made to account for changes in circumstances. When issues arise relating to education, access, vacations, etc. they are resolved through secondary arbitration.

There is much more leniency in terms of the requirements that need to be met as it is assumed that the parties were already afforded certain protections in the context of the initial arbitration. Notwithstanding this fact, the following requirements must still be met:

• the secondary arbitration must be conducted according to the law of the province, and
• the parties must be screened for domestic violence by the arbitrator conducting the proceeding.

Secondary arbitration
59.7 (1) The following special rules apply to a secondary arbitration and to an award made as the result of a secondary arbitration:

1. Despite section 59.4, the award is not unenforceable for the sole reason that the separation agreement was entered into or the court order or earlier award was made before the dispute to be arbitrated in the secondary arbitration had arisen.
2. Despite clause 59.6 (1) (b), it is not necessary for the parties to receive independent legal advice before participating in the secondary arbitration.
3. Despite clause 59.6 (1) (c), the requirements of section 38 of the Arbitration Act, 1991 need not be met.

Appeals

Lastly, the delivery of an arbitral award generally terminates arbitration, however you should be aware of the fact that it is possible, pursuant to s. 45 of the Arbitration Act, 1991, S.O. 1991, c. 17 to appeal the decision. Moreover, s. 47 of the Act places a 30-day limitation period on parties who wish to bring an appeal.

Appeal on question of law
45. (1) If the arbitration agreement does not deal with appeals on questions of law, a party may appeal an award to the court on a question of law with leave, which the court shall grant only if it is satisfied that,

1. the importance to the parties of the matters at stake in the arbitration justifies an appeal; and
2. determination of the question of law at issue will significantly affect the rights of the parties.

Idem
(2) If the arbitration agreement so provides, a party may appeal an award to the court on a question of law.

Appeal on question of fact or mixed fact and law
(3) If the arbitration agreement so provides, a party may appeal an award to the court on a question of fact or on a question of mixed fact and law.

Powers of court
(4) The court may require the arbitral tribunal to explain any matter.

Idem
(5) The court may confirm, vary or set aside the award or may remit the award to the arbitral tribunal with the court’s opinion on the question of law, in the case of an appeal on a question of law, and give directions about the conduct of the arbitration.

Family arbitration award
(6) Any appeal of a family arbitration award lies to,

1. the Family Court, in the areas where it has jurisdiction under subsection 21.1 (4) of the Courts of Justice Act;
2. the Superior Court of Justice, in the rest of Ontario.

If the parties are agreeable they may choose to incorporate the appeal process in their arbitration agreement.

Setting Aside An Arbitral Award

Lastly, s. 46(1) of the Arbitration Act, 1991, S.O. 1991, c. 17 sets out the circumstances under which an award may be set aside by the court or, pursuant to subsection (8), remitted to an arbitrator for further arbitration.

Setting aside award
46. (1) On a party’s application, the court may set aside an award on any of the following grounds:

1. A party entered into the arbitration agreement while under a legal incapacity.
2. The arbitration agreement is invalid or has ceased to exist.
3. The award deals with a dispute that the arbitration agreement does not cover or contains a decision on a matter that is beyond the scope of the agreement.
4. The composition of the tribunal was not in accordance with the arbitration agreement or, if the agreement did not deal with that matter, was not in accordance with this Act.
5. The subject-matter of the dispute is not capable of being the subject of arbitration under Ontario law.
6. The applicant was not treated equally and fairly, was not given an opportunity to present a case or to respond to another party’s case, or was not given proper notice of the arbitration or of the appointment of an arbitrator.
7. The procedures followed in the arbitration did not comply with this Act.
8. An arbitrator has committed a corrupt or fraudulent act or there is a reasonable apprehension of bias.
9. The award was obtained by fraud.
10. The award is a family arbitration award that is not enforceable under the Family Law Act.