Family law arbitration is governed not only by the Arbitration Act, 1991, which also governs domestic civil and commercial arbitration, but also by the only regulation under the Arbitration Act, 1991 as well as the Family Law Act, R.S.O. 1990, c. F.3. The rationale behind additional laws affecting family arbitration as opposed to civil and commercial litigation is that the law recognises the significance of family relationships over non-family and commercial relationships. This article will summarise many of the ways in which the Arbitration Act, 1991 is altered by family laws designed to protect family relationships. Basic knowledge of the Arbitration Act, 1991 as a starting point will assist the reader and you can read an Overview of the Arbitration Act, 1991.
If parties purport to arbitrate but do not abide by the law, it is not a family arbitration and the decision of the Arbitrator has no legal effect even if a party fails to object (s. 2.2 and s. 4(2) of the Arbitration Act, 1991).
Agreement to Arbitrate
A starting point for arbitration of any sort is the concept of party autonomy, which means that 2 people can agree to address their disputes through arbitration, as opposed to in Court.
However, unlike civil and commercial arbitration, parties to a family arbitration cannot agree before a dispute arises to arbitrate that dispute. A family arbitration agreement can only be entered into after a dispute arises (s. 59.4.1 of the Family Law Act). There is a small exception for “secondary arbitration” which may arise from the original arbitration (s. 59.7 of the Family Law Act).
The Arbitration Act, 1991 and the Family Law Act govern family law arbitration. To the extent these pieces of legislation conflict, the Family Law Act prevails (s. 2.1(2) of the Arbitration Act, 1991 and s. 59.1(2) of the Family Law Act).
The Arbitration Act, 1991 prevents the contracting out of may sections involving some measure of Court oversight in civil arbitration. In addition, for family arbitration the parties can’t contract out of the application of the law, including equity, the substantive law of Ontario or another Province and appeal rights (s. 3 of the Arbitration Act, 1991). The “best interests of the child” is a paramount family law principle that applies in any arbitration which may impact children. Rightfully so, no one can contract out of the best interests of the child.
Family arbitration agreements must be in writing (s. 59.6(1)(a) of the Family Law Act ) and have requirements to set out the following (s. 2 of Ontario Regulation 134/07 under the Arbitration Act, 1991):
- Which Province’s law applies, in addition to the law of Canada;
- That there are appeal rights on questions of law, fact or mixed fact and law;
- The name of the actual Arbitrator;
- That each party has received independent legal advice prior to entering into the arbitration agreement (and that lawyer must provide a certificate of independent legal advice pursuant to s. 59.6(1)(d) of the Family Law Act);
- The Arbitrator’s confirmation that:
- the Arbitrator will treat the parties equally and fairly,
- the Arbitrator has received family arbitration training approved by the Attorney General,
- the parties were separately screened for power imbalances and domestic violence by the Arbitrator or someone other than the Arbitrator and the Arbitrator will consider the screening throughout the arbitration.
Although most family law issues can be arbitrated (property, support, parenting), divorce and declarations of parentage can only be decided by the Courts.
Whereas most Arbitrators do not require any special training, family Arbitrators do and that training is provided by the Attorney General (s. 3 of Ontario Regulation 134/07 under the Arbitration Act, 1991).
The Arbitrator must preserve the evidence presented and considered, their notes, a copy of the signed arbitration agreement, a copy of the screening and the award and reasons for it. All of which must be kepf to 10 years (s. 4 of Ontario Regulation 134/07 under the Arbitration Act, 1991).
Because family Arbitrators are required to follow and apply the law, the “best interests of the child” must be considered in making a parenting order or contact order (s. 24 of the Children’s Law Reform Act). The best interests of the child are always paramount.
Family Arbitration Awards
Family arbitration awards must be in writing, with reasons and delivered to the parties (s. 59.6(1)(c) of the Family Law Act with reference to s. 38 of the Arbitration Act, 1991).
There are mandatory rights of appeal in family arbitration to either the Family Court in jurisdictions where there is a Family Court or alternatively to the Superior Court of Justice (s. 45(6) of the Arbitration Act, 1991).
Family arbitration awards can be set aside if they do not complay with the Family Law Act (s. 46(10) of the Arbitration Act, 1991.
Family arbitration awards are enforceable after the applicable appeal period where there is no appeal taken (s. 59.8(4)(a) and (b) of the Family Law Act) and only in accordance with the Family Law Act (s. 50.1 of the Arbitration Act, 1991). Non-compliance with the law means there can be no enforcement.
The Family Law Act requires an application (or motion in an existing proceeding) to the Family Court or the Superior Court of Justice (s. 59.8 of the Family Law Act). The application or motion must be supported by the original award or a certified copy, a copy of the family arbitration agreement and copies of certificates of independent legal advice (s. 59.8(3) of the Family Law Act).
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