Family Arbitration in Ontario: How It Differs From Mediation

If you and your spouse want to stay out of a courtroom, you may have heard of both mediation and arbitration. They sound similar, but they work very differently, and the difference matters when you are deciding which path suits your situation.

This article explains in plain language what each process involves, when an arbitration decision can be enforced, and what protections Ontario puts around the process. It is general information, not advice on your own case.

Mediation: you make the decisions

Ontario describes mediation as a negotiation between two people with help from a mediator. The mediator does not take sides, make decisions or give legal advice, and does not take the place of a lawyer.

The mediator screens the parties at intake and throughout the process to make sure both are in an equal negotiating position. At the end, the mediator writes up what the parties agreed. To make it legally binding, Ontario advises that each party get advice from a different lawyer before signing.

Court-connected mediators must have 60 hours of family mediation training and 21 hours of intimate partner violence education or training, including screening for intimate partner violence. Court-connected on-site mediation is free on the day a party's matter is scheduled in court, while off-site mediation may carry user fees on a scale based on income and number of dependents.

If you are divorcing, the Divorce Act says that, to the extent that it is appropriate, parties must try to resolve the matters through a family dispute resolution process, which it defines as a process outside court such as negotiation, mediation and collaborative law. A legal adviser must encourage this unless the circumstances of the case, such as family violence, make it clearly inappropriate.

Arbitration: someone else decides

In arbitration, you and your spouse agree to have a neutral person, the arbitrator, decide the dispute instead of a judge. The key difference from mediation is that the arbitrator makes the decision, rather than helping you reach one yourselves.

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 requirements of the Arbitration Act, 1991 are met.

Rules that protect you

• Timing: an agreement to arbitrate a family dispute is unenforceable unless it is entered into after the dispute has arisen.
• Screening: before any family arbitration starts, a professional trained to recognize domestic violence and power imbalances must interview each party separately, and the screening report must go to the arbitrator before the arbitration can begin.
• Secondary arbitration: if the arbitration is conducted under a separation agreement, court order or earlier arbitration award, you do not need independent legal advice again.
• Religious principles: an award based on religious principles is not a valid family arbitration award, and the court can only enforce arbitration that follows Canadian law.

A separation agreement or other domestic contract is unenforceable unless it is made in writing, signed by the parties and witnessed. A court may set aside a domestic contract or a provision in it on application, including where a party failed to disclose significant assets or did not understand the nature or consequences of the contract.

Enforcing or challenging 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.

A party may appeal to the court on a question of law with leave, and parties cannot contract out of this right. An appeal or an application to set aside must be started within 30 days after the party receives the award.

Mixing the two (med-arb) and what to do next

Some people consider combining mediation and arbitration. The Arbitration Act, 1991 says members of an arbitral tribunal must not conduct any part of the arbitration as a mediation or conciliation process that might compromise their ability to decide impartially. How a combined process is set up depends on the agreement, so have a lawyer review it.

Family Law Information Centres at family courts give free court forms and general information about procedure, and they provide information about mediation and referrals. Their staff give information, not legal advice. Low-income people may get free legal advice at court from Legal Aid Ontario advice lawyers and duty counsel.

• Decide whether you want help reaching your own agreement or a decision made for you.
• Do not sign an arbitration agreement before getting independent legal advice.
• Tell the professional about any safety concerns during screening.
• Keep the 30-day deadline in mind once you receive an award.

Frequently asked questions