Many legal issues arise when a couple separates: custody and access, financial issues and dividing the family property are often the most pressing. Some people decide to attempt to resolve these issues without going to court and use one of a variety of alternative dispute resolution techniques.
Arbitration is one of these techniques. It is a legal procedure in which the people agree to choose an outside third party to hear the evidence; listen to both their arguments and give a legally binding decision. These decisions are called arbitral awards.
Arbitrators will only deal with the issues that the people ask them to. They cannot grant a divorce or issue a restraining order, but can make orders dealing with most of the other issues that come up after a relationship has ended.
An arbitrator’s decision is legally binding.
A number of protections and rules apply to family law arbitrations, including:
- all family law arbitrations must follow the law of Ontario or of another Canadian jurisdiction. Religious or other laws cannot be used
- family arbitration agreements are considered domestic contracts
- people cannot give up their right to appeal an arbitral award to court
- people must have independent legal advice before beginning the arbitration
- all family law arbitrators have to take training in Canadian family law and domestic violence
- arbitrators must screen for any history of violence or abuse, or any other power imbalance between the people that could have an impact on the fairness of the process
Arbitration is an effective alternative to the family court process for some people because it can be more efficient, less formal and less expensive. The process has more flexibility than the family court and people can choose a particular arbitrator.
It is not for everyone, however. Where there has been abuse or a power imbalance in the relationship, arbitration may not be an appropriate way to proceed. Cost can also be a significant barrier — each person requires a certificate of independent legal advice and should have a lawyer through the arbitration process. Legal aid does not cover the costs of family law arbitrations, so people have to pay for their own lawyers as well as the arbitrator’s fees.