Family Law Arbitration
Alternative dispute resolution methods can effectively avoid lengthy court proceedings and costs. Arbitration is one such method, providing finality in family law matters without going to court.
Navigating arbitration can be challenging, but at Stephen Durbin and Associates, our experienced family lawyers are here to represent and guide you through the process.
This guide outlines the basics of arbitration, selecting the right arbitrator, and enforcing arbitral awards. It is not a substitute for personalized legal advice.
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What is Arbitration?
In arbitration, parties present their issues to an arbitrator who makes a binding decision, known as an arbitral award. By choosing arbitration, parties opt to avoid court. It is often preferred for its confidentiality, flexibility, and efficiency compared to litigation.
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Sometimes, arbitration follows mediation to resolve outstanding issues, a process called mediation-arbitration. The mediator may become the arbitrator, or a new arbitrator may be chosen, depending on the parties’ agreement (see our article on Mediation).
Pros and Cons of Arbitration
Pros:
- Efficiency: Faster and at times less expensive than court proceedings.
- Flexibility: Tailored to fit the parties’ needs, unlike rigid court rules.
- Confidentiality: Matters remain private, unlike public court records.
- Experience and Expertise: Choose an arbitrator with specific knowledge in the dispute area.
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Cons:
- Cost: Arbitrator’s fees can be significant. No such fees exist in the court process.
- Limited Appeal: Limited right to appeal an arbitrator’s decision.
- Lack of Discovery: Less extensive discovery process than in litigation.
Choosing the Right Arbitrator
Family arbitrators must be trained in Ontario family law and be able to screen for domestic violence and power imbalances. Often, senior family lawyers or retired judges serve as arbitrators.
While arbitrators are not regulated in Ontario, their awards may not be enforceable if they do not follow the law.
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When selecting an arbitrator, consider their credentials and experience as a family lawyer or dispute resolution specialist. Ensure both parties trust the arbitrator to act fairly and competently. We suggest that the selection of the arbitrator involve legal counsel, being this firm, or some other lawyer. We are well familiar with the best arbitrators in the field.
You can search the Alternative Dispute Resolution Institute of Ontario’s database for arbitrators, narrowing by location and expertise. The Family Dispute Resolution Institute of Ontario also maintains a list of professionals, searchable by specific expertise like parenting or financial issues.
The Arbitral Award
An arbitral award is binding on both parties. Section 50.1 of the Arbitration Act states that family arbitration awards are enforceable only under the Family Law Act.
Arbitrators can also award costs, ordering one party to pay part of the other’s legal costs. For example, costs may be awarded if a party refused a settlement offer and the award is less favourable than the offer.
If a party disagrees with the award, they can appeal or apply to set it aside. Section 47 (1) of the Arbitration Act imposes a 30-day deadline for such actions, with exceptions only for allegations of corruption or fraud.
Enforcement of an Arbitral Award
Once filed with the Superior Court of Justice, an arbitral award is enforceable like a court order.
Filing depends on whether a family court case has commenced. If not, an application can enforce the award. If a case has started, a motion under Rule 14 or 16 of the Family Law Rules can enforce it.
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For family law arbitrations, the Family Law Rules and the Family Responsibility and Support Arrears Enforcement Act, 1996, allow enforcement of costs orders related to support through the Family Responsibility Office.
Legal advice from a family lawyer is crucial when enforcing an arbitral award. Our experienced lawyers at Stephen Durbin and Associates can help determine the best approach.
How Stephen Durbin and Associates Can Help
Arbitration can be complex, with several factors to consider for success.
At SD&A, we can guide you through the arbitration process, file an arbitral award with the court, or assist in varying or setting aside an award.
If you need assistance with arbitration, please contact us at SD&A to learn how we can help.
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