Arbitration
When options such as negotiation, mediation and collaborative family law fail, arbitration can be an alternative to court. An arbitrator is a highly-experienced family lawyer or retired judge who the parties empower to make binding decisions in their case. Arbitration comes with the expense of the arbitrator’s fees. However, it is usually faster and more efficient than court. Unlike the court process, it is private, making it attractive for parties with sensitive personal or business affairs. We are experienced in selecting the best arbitrators for your case and crafting submissions that are effective and compelling.
Arbitration in Ontario Family Law
Arbitration is a private, legally binding process where separating or divorcing parties agree to have a neutral third party—called an arbitrator—resolve their family law disputes. Unlike mediation, where the mediator facilitates discussion but does not make decisions, an arbitrator listens to evidence and arguments and then issues a decision (called an “award”) that is enforceable under Ontario law.
Family law arbitration can address issues such as:
- Parenting time and decision-making responsibility
- Child and spousal support
- Division of property
- Exclusive possession of the matrimonial home
Arbitration is governed by the Arbitration Act, 1991 and the Family Law Act, and parties must sign a formal Arbitration Agreement before the process begins. This agreement outlines the scope of the arbitration, the issues to be decided, and the rules that will apply.
In Ontario, family arbitration must comply with specific regulations, including mandatory screening for domestic violence and power imbalances before the process begins. This ensures that arbitration is safe and fair for both parties.
When Is Arbitration Appropriate?
Arbitration is appropriate when:
- Parties want a private, efficient alternative to court.
- There is a need for a binding decision but a desire to avoid litigation.
- The issues are clearly defined and ready for resolution.
- Parties want to choose their decision-maker rather than rely on a judge assigned by the court.
Arbitration is often used when mediation has failed but when parties want to resolve specific issues without going through a full and public trial. It can be particularly helpful in high-conflict cases where negotiation is no longer productive but court delays are undesirable.
However, arbitration may be less appropriate when:
- One party refuses to participate or disclose relevant information.
- There are unresolved safety concerns or a history of coercive control.
- The parties cannot agree on the scope of arbitration or the choice of arbitrator.
- Urgent issues require immediate court intervention (e.g., child protection, restraining orders).
In these cases, litigation or court-connected mediation may be more suitable.
What Professionals Are Involved?
The core professional in arbitration is the arbitrator, but other professionals may be involved depending on the complexity of the case.
- Arbitrator:
- The arbitrator is a neutral decision-maker, often a senior family lawyer or retired judge, who is trained and certified in family law arbitration. In Ontario, arbitrators must meet specific criteria, including:
- Completion of a 40-hour family arbitration course
- Training in domestic violence screening
- Ongoing continuing education
- Professional liability insurance
- The arbitrator’s role is to:
- Review evidence and submissions
- Conduct hearings (oral or written)
- Issue a binding award that resolves the dispute
- Lawyers:
- Each party typically retains a lawyer to:
- Advise on legal rights and obligations
- Prepare submissions and evidence
- Represent the client during arbitration hearings
- Review and enforce the arbitrator’s award
- Screening Professional:
- Before arbitration begins, parties must be screened for domestic violence and power imbalances. This is usually done by the arbitrator or another trained professional who conducts confidential interviews and reports to the arbitrator on whether the process is safe to proceed.
- Experts:
- In some cases, parties may retain experts to provide evidence on:
- Business valuations
- Income assessments
- Parenting capacity
- Psychological evaluations
These experts may testify during the arbitration hearing and help the arbitrator make informed decisions.
How It Works
Arbitration follows a structured process designed to resolve disputes efficiently and fairly.
Arbitration Agreement
The parties sign a formal Arbitration Agreement that sets out:
- The issues to be decided
- The rules of procedure
- The choice of arbitrator
- The scope of appeal rights (if any)
This agreement must comply with Ontario regulations and typically includes documents certifying that the parties have received independent legal advice.
Screening
Before arbitration begins, both parties are screened for domestic violence and power imbalances. This ensures that the process is safe and that neither party is being coerced or disadvantaged.
Preparation
Each party prepares written submissions, gathers evidence, and may exchange documents such as:
- Financial disclosure (Form 13/13.1, tax returns, bank statements)
- Parenting plans
- Expert reports
The arbitrator may hold a preliminary meeting to set timelines and clarify procedures.
Hearing
The arbitration hearing may be:
- Oral: Parties and lawyers present evidence and arguments in person or virtually.
- Written: Parties submit documents and affidavits, and the arbitrator decides based on the written record.
The hearing may be less formal than court but still structured. The arbitrator may ask questions, request clarification, and manage the process to ensure fairness.
Award
After reviewing all evidence and submissions, the arbitrator issues a written award that resolves the dispute. This award is:
- Legally binding
- Enforceable in court
- May be incorporated into a court order if needed
The award may address parenting arrangements, support obligations, property division, and other family law issues.
Appeal or Enforcement
Parties may agree in advance to allow appeals on certain grounds (e.g., errors of law or fact). Otherwise, appeal rights are limited under the Arbitration Act.
If a party fails to comply with the award, the other party may apply to the court to enforce it.
Benefits of Arbitration
Privacy: Arbitration is confidential, protecting sensitive family matters from public exposure.
Efficiency: Arbitration can be scheduled quickly and resolved faster than court.
Flexibility: Parties choose their arbitrator and set their own procedures.
Expertise: Arbitrators are often senior family lawyers with deep knowledge of the law.
Finality: Awards are binding and enforceable, providing closure and certainty.
Arbitration is particularly useful for families who want a decisive outcome without the delays and stress of litigation.
Common Questions About Arbitration
Yes. The arbitrator’s award is enforceable under Ontario law and may be incorporated into a court order.
Appeal rights depend on the Arbitration Agreement. Parties may agree to allow appeals on specific grounds, but appeals are generally limited.
While not mandatory, lawyers are the norm and are strongly recommended to ensure fairness and proper procedure.
Often, yes. Arbitration avoids court scheduling delays and can be resolved in weeks or months.
Yes. Parties can agree to arbitrate specific issues (e.g., support or property) while resolving others through negotiation or mediation.
The award can be enforced through the court, just like a court order.
Yes, but only if both parties are committed to the process and have been screened for safety and fairness.