Family Arbitration or Court in Ontario: Choosing a Process

Separating spouses in Ontario can ask a court to decide their dispute, or they may agree to use a private process such as arbitration. Each path has trade-offs, and arbitration comes with rules that protect both people.

This article explains what family arbitration is, the conditions for a valid process, how an award is enforced, and the limits on appealing it.

Arbitration compared with mediation and court

Under the Divorce Act, parties must try to resolve matters through a family dispute resolution process to the extent that it is appropriate, and that is defined as a process outside court, such as negotiation, mediation and collaborative law. A legal adviser must encourage it unless the circumstances, such as family violence, make it clearly inappropriate.

Mediation is a negotiation with help from a mediator who does not take sides, make decisions or give legal advice. Arbitration is different: an arbitrator makes the decision, which is called an award. A court case, by contrast, is decided by a judge under the Family Law Rules.

Rules for a valid family arbitration

• A family arbitration award is enforceable only if the arbitration agreement is in writing and complies with the regulations, each party receives independent legal advice before making the agreement, and the Arbitration Act, 1991 requirements are met.
• An agreement to arbitrate a family dispute is unenforceable unless it is entered into after the dispute has arisen.
• For a secondary arbitration under a separation agreement, court order or earlier award, the parties do not need independent legal advice again.
• Before arbitration starts, a trained professional must interview each party separately about domestic violence and power imbalances, and the screening report must go to the arbitrator before it can begin.
• An award based on religious principles is not a valid family arbitration award, and the court can only enforce arbitration that follows Canadian law.

Pros and cons to weigh

Arbitration may suit people who want a decision-maker outside the court process, but the legal advice and screening steps take effort, and the right to appeal is narrow. Whether it fits depends on your facts, including safety concerns and how complex your issues are. Care is also needed with combined processes: an arbitrator must not conduct part of the arbitration as a mediation or similar process that might compromise their ability to decide impartially.

Enforcing and appealing an award

A party entitled to enforcement may apply to the court. Support provisions can be filed using Form 26D with the Superior Court of Justice or the Family Court, together with the legal advice certificates and the arbitration agreement. Awards cannot be enforced unless both sides received legal advice. For a secondary arbitration under a separation agreement, court order or earlier arbitration award, the parties do not need to get independent legal advice again.

A party may appeal to the court on a question of law with leave, and parties cannot contract out of this right. Family arbitration awards are appealed to the Family Court or the Superior Court of Justice. An appeal or an application to set aside must be started within 30 days after the party receives the award. The court can only enforce arbitration that follows Canadian law, so an award based on religious principles is not a valid family arbitration award.

What to do next

• Think about whether safety or power imbalance concerns make a private process unsuitable.
• Get independent legal advice before you sign any arbitration agreement.
• Ask who will do the screening and how the arbitrator will be chosen.
• Confirm the agreement is in writing and made after the dispute arose.
• Note the 30-day appeal and set-aside deadline once you receive an award.
• Speak with a family lawyer about whether arbitration or court suits your situation.

Frequently asked questions