Family Arbitration in Ontario: Binding Decisions Outside Court

When you and your former partner cannot agree, court is not your only route. Some people choose mediation, which can be used before, during or instead of a court case and can be faster, cheaper and more private than court.

Before you agree, it helps to know how arbitration differs from mediation and court, what happens if you are unhappy with the result, and which rules apply. This article gives the general picture for Ontario and points out where you need advice on your own situation.

What arbitration is, in plain words

In arbitration, you and the other party agree to have an arbitrator decide the issues instead of a judge. The arbitrator listens to each side, looks at the evidence and the law, and gives a decision. That is the key difference from mediation, where the mediator is a neutral third party who does not take sides, make decisions or give legal advice.

Arbitration is not the same as negotiation or collaborative law. Ontario describes collaborative family law as a process where both parties and their lawyers agree not to go to court.

How it compares with mediation and court

• Mediation in Ontario is voluntary, and the mediator helps you reach your own agreement rather than deciding for you.
• Closed mediation discussions and documents cannot be used in court, with limited exceptions such as child safety concerns.
• Arbitration produces a decision made by someone else, which is closer to what a judge does than what a mediator does.
• Court is a public process with its own steps, starting with an application and moving through conferences toward trial.

Ontario says mediation can be used before, during or instead of a court case and can be faster, cheaper and more private than court. Whether arbitration saves you time or money depends on the arbitrator, the issues and how much you disagree, so it is worth asking about costs up front.

Mediation-arbitration and what binding means

Some people use a combined process called mediation-arbitration. It requires both parties' agreement, and the arbitration result is binding and enforceable by the court.

Binding is the point to think about most carefully. How a binding result would affect your options later depends on your situation, so it is worth confirming before you sign anything. Ask a lawyer what you would be agreeing to, and what safeguards you want in the written agreement.

If there has been family violence or a power imbalance, arbitration may not suit you. Mediators screen each person separately to confirm an equal negotiating position, and the screening continues throughout. Divorce Act duties also recognize that family dispute resolution may clearly not be appropriate, for example where there is family violence.

Appeals, court involvement and the rules

The Superior Court of Justice hears family arbitration appeals. The grounds and time limits for an appeal depend on the arbitration agreement and the governing legislation, so confirm them with a lawyer before you agree to arbitrate rather than after you receive a decision.

A case that involves only family arbitration is one of the situations where you do not need to attend the Mandatory Information Program. Parties to a Divorce Act proceeding must still try to resolve matters through a family dispute resolution process to the extent it is appropriate.

What to do next

• List the issues you want decided and the ones you can settle yourselves.
• Ask a lawyer how arbitration would work for your case, including appeal rights and costs.
• Ask who the arbitrator would be and how they would be chosen.
• Get any arbitration agreement in writing and read it before you sign.
• Contact a Family Law Information Centre at your local family court for information on alternative dispute resolution.

If safety is a concern, the Victim Support Line is 1-888-579-2888.

Frequently asked questions