Today I’d like to discuss the pertinent points of family arbitration agreement in Ontario.
Family arbitration is an alternative dispute resolution process involving a private third-party arbitrator to decide on the disputes between the parties under their consent. There may be more than one arbitrator in a proceeding.
The Ontario Family Law Act* expressly defines family arbitrations, agreements and awards. The decision and any award rendered by the arbitrator under a family arbitration agreement are binding and enforceable under the laws in Ontario, subject to certain limitations.
First and foremost, the agreement must be in writing and meet the formal requirements of the Arbitration Act# and its regulations. Failure to observe these conditions will render the agreement and any subsequent decision and award unenforceable.
Second, a family arbitration agreement is unenforceable unless the agreement is entered into after the dispute in question has arisen. In other words, parties are unable to agree to family arbitration in advance of the dispute in question.
Further, the family arbitration must be conducted exclusively in accordance with the laws of Ontario or of another Canadian jurisdiction. If it is not, then the process is not recognized as family arbitration and the decision is not a family arbitration award and has not legal effect.
The parties are not allowed to vary or exclude the restrictions imposed by law.
Any award made under the family arbitration may be enforced or set aside in the same way as a domestic contract. For example, if the parties did not receive independent legal advice, the award will become unenforceable and be set aside.
Note: Please keep in mind that this article is provided for information and educational purposes. It does not constitute legal advice and should not be regarded as such. The law may have changed since the publication of the article.
*R.S.O. 1990, c. F.3.
#S.O. 1997, c. 17