Family Arbitration in Ontario: Is the Result Binding?

If your spouse or their lawyer has suggested arbitration, you are probably wondering what you would be agreeing to. Arbitration is a private process where you and your spouse hire a neutral person to decide issues for you, instead of a judge. The big question is usually whether you can change your mind later if you dislike the result.

This article explains in general terms how family arbitration works in Ontario, what makes an award enforceable, what appeal rights exist, and what it cannot do. Every family situation is different, so use this as background before you speak with a lawyer.

What family arbitration is, and what it cannot do

In arbitration, you and your spouse choose an arbitrator and agree in advance that the arbitrator's decision, called an award, will settle the issues you put to them. It is more private than a courtroom, and you have more say over who decides. It is still a formal process with legal consequences.

There is one important limit. Arbitrators cannot grant a divorce or annul a marriage. If you want a divorce, you still need to go to court for that part. A divorce court must also be satisfied that reasonable arrangements have been made for the support of any children of the marriage.

If children are involved, an arbitrator must decide children's matters in the child's best interests under s. 24 of the Children's Law Reform Act.

Independent legal advice: the condition that makes an award enforceable

Ontario sets a safeguard before arbitration begins. Each party must get independent legal advice from a lawyer before arbitration starts. What counts as independent advice in your situation is worth confirming with a lawyer.

This matters because awards cannot be enforced in court unless both sides received legal advice. Each lawyer gives a certificate, and those certificates must be attached to the arbitration agreement if you go to court.

In practical terms, if you skipped the advice step, the other side may not be able to rely on the court to enforce the award against you. That also works in reverse, so a spouse who wants a dependable result has a reason to insist on proper advice for both people.

Faith-based arbitration

Some people are offered arbitration through a religious or community process. In Ontario, arbitration awards that are based on religious principles are not valid family arbitration awards. A faith-based process can be enforceable only if it follows Ontario law and the arbitrator is trained.

If you are asked to take part in this kind of process, a lawyer can explain how it fits with Ontario's rules before you sign anything.

Enforcing, appealing and challenging an award

An award is filed for enforcement using Form 32.1, or Form 8 if no court case has started, or by motion in an existing case. Arbitrators may also order one party to pay part of the other's costs. How enforcement of support provisions works in your case is worth confirming with a lawyer.

Appeal rights depend partly on what you agreed to. A family arbitration agreement can provide for appeals under s. 45(1) of the Arbitration Act, 1991 and can limit them to questions of law, fact, or mixed fact and law. So the agreement you sign at the start shapes your options later.

These timelines are short. If you are unhappy with an award, speak to a lawyer immediately and have them confirm the current deadlines against the rules.

Questions to weigh before agreeing

• Which issues would go to the arbitrator: parenting, support, property, or all of them?
• Who is the arbitrator, and are they trained for family matters?
• Will the agreement allow appeals, and on what grounds?
• How will the arbitrator's fees and any costs be shared?
• Do you still need a court for the divorce itself? Yes, because arbitrators cannot grant a divorce.
• Have both of you received independent legal advice and obtained the certificates?

What to do next

• Do not sign an arbitration agreement before you have your own lawyer's advice.
• Ask for the proposed arbitrator's background and training.
• Gather your financial documents, since disclosure matters in any process.
• Write down which issues you would want decided and which you would rather negotiate.
• Ask your lawyer how the agreement would handle appeals and costs.
• Note any deadlines now, including the time limit for a property claim, which is six years from separation or two years from the day a divorce is final, whichever comes first.

Frequently asked questions