In Ontario it is not uncommon for parties to a family law matter to choose to arbitrate their dispute. This commentary touches upon just a few practical issues relating to family law arbitrations. It is in no way intended to be an exhaustive or even a detailed treatment of the topic. If you wish to understand family arbitration in its complexity and nuance (which you certainly ought to do before you seriously consider embarking upon it), especially in terms of how it might relate to your own specific circumstances, then you should consult with a family law lawyer who has a thorough understanding of the process, and who can provide you with legal advice regarding it.
Arbitration is a form of alternate dispute resolution, or “ADR” as it is sometimes known. Alternate to what? Alternate to going to court and having a judge decide the matter. In an arbitration, the parties contractually agree to a private mode of dispute resolution, whereby an arbitrator rather than a judge will make the decisions that resolve the outstanding family law issues between the parties.
Note that arbitration is a voluntary process of dispute resolution. No-one has the power to “force” parties in a family law proceeding into an arbitration. Instead, both parties must consent to the arbitration being the method for resolution of their disputes. They do so by signing an agreement through which they submit their dispute to an arbitrator and, concurrently, waive their right to have the matter resolved by the court. There are certain formalities that must be observed as well as various important aspects that must be considered, in relation to family law agreements that provide for arbitration of a dispute, so it is essential to obtain legal advice before entering into such an agreement.
Perhaps unsurprisingly, it sometimes happens that, at some point after the parties submit a matter to arbitration, one party later wants “out” of it so that he or she can pursue the matter in court instead. This can happen when a party feels, mid-stream, that the arbitration is not going his or her “way”. Generally speaking, though, there is no way “out” of the arbitration process once the matter has been submitted to arbitration, unless of course both parties agree to withdraw from the process, or else if the arbitrator withdraws from the process on his or her own power (and even then, depending on the particular circumstances, sometimes an alternate arbitrator will be put in place). While the court also does have the power to remove an arbitrator in certain circumstances, those circumstances are rather narrowly circumscribed. Certainly, one should never enter into an agreement to arbitrate on the assumption that one can simply “get out of it” at a later date should one wish to do so. Indeed, it is safest to assume precisely the opposite.
Since the parties do not have to pay for court attendances (there are filing fees applicable in certain circumstances, but they are comparatively nominal), whereas with an arbitration there is indeed a fee – paid by the parties to the arbitrator usually by the hour, so it is often substantial – why would some parties decide to have their family law matter resolved by arbitration as opposed to by the court? For most people, the answer to this question is likely one or more of the following:
* Subject to certain limits, the arbitration process offers the parties privacy in their dispute resolution process; something that is generally not available in the court process since in that process a key principle (one of public policy) is the very “openness” of the process itself.
* In the arbitration process the parties get to choose their decision-maker. It is natural in this regard that they typically choose an arbitrator with highly specialized subject matter knowledge and expertise. Often, the arbitrator chosen is a senior family law lawyer of some estimation; although for some parenting disputes the parties sometimes wish to retain a non-lawyer parenting professional as their arbitrator. This seemingly simple decision – whom to select as the arbitrator – is in fact extremely important, and there are numerous issues, considerations, and subtleties that must be analyzed carefully in this regard (far too numerous to attempt to summarize here, and it is critical that legal advice be sought about this choice).
* In some cases, the specific arbitral process can be crafted to be more streamlined in certain ways (that is, made more efficient in terms of time and/or legal fees expended) than the court process; although, to be very clear, that is not always the case.
As considerations to be marshalled against choosing arbitration and in favour of the judicial determination of family law disputes, it should be noted that family law judges in Ontario courts are, frankly, quite excellent at the resolution of family law disputes (in many subtle, sophisticated and multi-faceted ways, in fact). Also, experience teaches that some persons – for example, certain difficult types and certain other persons with specific personality disorders – really do seem to “need” to have a judge (versus an arbitrator) as the decision-maker in front of them, before they will respect the family law justice process.
In addition to all this, in family law it is often the case that the parties who do opt for alternate dispute resolution process instead of court consider entering into the hybrid process of “mediation-arbitration” rather than simple arbitration. Mediation-arbitration, put at its simplest, is an ADR process that involves an attempt by the parties at mediation first and then, only if that fails, there is the arbitration of the dispute. This mediation-arbitration process, quite common in family law, has its advantages and disadvantages and its risks and benefits, but those cannot be treated even cursorily in the limited space of this post. Again, specific legal advice is critical to understanding the issues and subtleties in determining whether the mediation-arbitration process might be appropriate for your case.
Apart from the issues already raised, there are issues of appeal rights from an arbitral award, the requirement for the arbitrator to treat the parties “fairly and equally” and with a lack of bias (whether actual or perceived), and many other considerations – both theoretical and practical – that need to be examined before making any decision about the process of arbitration.
(Note: The foregoing is intended as general and summative legal information only. It is not legal advice, and it ought not to be relied upon as legal advice – which is far more involved and also specific to the particular facts facing the individual client. To repeat, the decision as to whether to submit some or all of a family law dispute to arbitration ought to be a very considered one, in connection with which advice ought to be sought from an experienced family law lawyer.)
This article is written by Brian J Burke, a partner at Epstein Cole LLP. He is a frequently invited conference speaker on family law and professionalism topics, including conferences run by the Law Society of Upper Canada and the Ontario Bar Association. To learn more about Brian click https://www.thedivorceangels.com/vendor/brian-j-burke/