Canada: Family Law Arbitration

Last Updated: May 11 2018
Article by Carolyn Lloyd


Arbitration is an out-of-court process that falls under the category of "Alternative/Appropriate Dispute Resolution". It is the process that most closely resembles a Court hearing or trial, but it is private and confidential, and it is conducted in a manner that is best-suited for your family law dispute as determined with your trained arbitrator.

Arbitrators have the power under section 51 of the Family Law Act, and the Arbitration Act, to deal with matters that could be addressed under a marriage contract, separation agreement, cohabitation agreement or paternity agreement, provided that the arbitration is conducted exclusively in accordance with the law of Ontario (or another Canadian jurisdiction). If any decisions are made by the arbitrator that are not in accordance with the law of Ontario or another jurisdiction, such decisions will be unenforceable.

This means that parenting issues, including custody and access disputes, child support, spousal support and property division may all appropriately determined in arbitration.


First and foremost, the parties to the arbitration need to consent to the process. The process must be fair and equitable, and the arbitrator is guided by the principle of "do no harm". The parties must sign an arbitration agreement that outlines the following:

  • The parties waive (give up) their right to go to Court and litigate.
  • Aspects of the arbitration, including who will be the arbitrator, what issues will be arbitrated, and how, when and where the arbitration will be conducted.

All issues, no matter how minor they may seem, must be included in the arbitration agreement because this agreement is what gives the arbitrator the power to decide the issues. If the arbitrator makes a decision on an issue not expressly included in the arbitration agreement, that decision will be unenforceable.


Section 58 of the Arbitration Act sets out the requirement that both parties are to be screened for domestic violence and power imbalances prior to arbitration. This screening is mandatory and must be conducted by a lawyer, social worker, psychologist or other mental health professional, or a different arbitrator than the one conducting the arbitration (unless this is a mediation-arbitration in which case the mediator-arbitrator conducts the screening throughout the process as discussed below).

Screening is vital to ensure that both parties are fully consenting to the voluntary process of arbitration, and to determine if certain safeguards need to be in place to protect a vulnerable party. Sometimes the result will be that the parties will sit at a distance from each other, and not in the direct line of vision of each other, and sometimes the arbitrator will require that the parties to the arbitration not attend the hearing at the same time such that arrivals and exits are staggered at different times.

Screening is also conducted to ensure that the children are protected. If an incidence of violence or potential further harm to a child is discovered, arbitrators and other professionals are required to report it to the appropriate child protection agency. It is an offence not to do so.


Arbitration is the method of alternative dispute resolution that most closely resembles a trial, but it is generally less expensive, faster, private and more informal. Like a judge, the arbitrator is required to apply the relevant law to the evidence, and all issues may be resolved that arose from the separation or divorce of the parties (with the exception that the actual divorce judgment that grants the legal dissolution of the marriage has to be made by a judge).

For example, a judge has to determine custody and access issues in accordance with the child or children's best interests and must consider the list of factors set out in section 24 of the Children's Law Reform Act. An arbitrator will consider the same factors with the evidence that is provided in the arbitration. This will lead to a fair and equitable result.


There are strict requirements for an arbitration award to be enforceable. The family arbitration agreement, which gives the arbitrator the authority to make the award, must be made in writing and must comply with the regulations under the Arbitration Act. Each party to the family arbitration agreement must receive independent legal advice before entering into the agreement. The requirements of section 38 of the Arbitration Act must be met, and these include formal delivery of the written award, with reasons. The arbitrator must comply with all regulations made under the Arbitration Act.

The Ministry of the Attorney General requires that the lawyer who provides the party with independent legal advice must complete a certificate provided by the Ministry of the Attorney General and deliver it to his or her client, and attach it to the family law arbitration agreement. This is a mandatory requirement that, if not followed, will render the award unenforceable. This is consistent with the requirement that the parties to the arbitration proceeding are participating voluntarily, and are fully informed that they have left the Court process.

The arbitration award may be registered with the Court and enforced by the court, provided that it is in writing, and that it includes the place where, and the date when, the award was made. It must be formally signed by the arbitrator, and copies need to be delivered to each party.

The award may include costs and interest, provided that the arbitration agreement included those issues for determination.

Upon the request of a party, or both parties, within 30 days of delivery of the award, an arbitrator may explain, make corrections and/or make an amended award or additional award.


Yes. The parties may agree for the arbitrator to conduct a hearing that is similar to a "motion" in court. Generally, sworn statements ("affidavits") are used with oral argument for an arbitration award to be made prior to final determination. The award will be released in the same manner as a final award.


The parties and their lawyers, or just the lawyers, may either meet or have a teleconference with the arbitrator to determine the process, and have the arbitrator make procedural rulings and create an orderly and predictable procedure. The parties will determine, through the arbitrator, what documentary evidence needs to be exchanged and provided to the arbitrator prior to the hearing. This step is often referred to as a "pre-arbitration conference".


Yes. Section 45 of the Arbitration Act sets out that, even if the arbitration agreement does not set out the rights to appeal, a party may appeal an award on a question of law, with leave of the Court. In order to be granted leave, the Court must be convinced that the importance to the parties of the matters at stake justifies an appeal, and the determination of the question of law will significantly affect the rights of the parties.

Most arbitration agreements will include more expansive rights of appeal of an award. There will usually be choices of questions of law, questions of fact, and questions of mixed fact and law, with leave of the Court not being required. Questions of law are questions of what the correct legal test is and the standard of "correctness" applies.

Questions of fact are questions of what actually took place. The standard of review of an issue of fact is "a palpable and overriding error".

Questions of mixed fact and law are questions about whether the facts satisfy the legal test. Findings of mixed fact and law lie along a spectrum such that if the error is attributed to the application of an incorrect legal principle, then the standard is correctness; however, if the legal principle cannot be separated from the facts, the appellate Court is subject to the test of "a palpable and overriding error" (unless it is clear that the arbitrator made an error in principle with respect to the characterization of the standard of law or its application, in which case the error would amount to an error of law).

It is important to have legal advice to determine the parameters for appeal of an arbitration award. An appeal of a family arbitration award lies to the Family Court, in areas where the Family Court has jurisdiction, and otherwise the Superior Court of Justice. The Court may direct the arbitrator to explain any matter.

It is also possible to seek to set aside a family law arbitration award under subsection 46(1) of the Arbitration Act, which lists the circumstances under which an award may be set aside by the Court.


Secondary arbitration is defined in the Family Law Act as family arbitration that is conducted in accordance with a separation agreement, a Court Order or a family arbitration agreement that provides for the arbitration of possible future disputes arising from the ongoing management or implementation of the agreement, order or award.

There is more leniency for secondary arbitration as it is assumed that the parties already had protections from the initial arbitration or other proceeding. Screening for domestic violence and power imbalances is done by the arbitrator, and the arbitration is to be conducted in accordance with the law of Ontario; however, it is not necessary for the parties to receive independent legal advice before participating in the secondary arbitration. There is also less formality in the requirements for delivery of the award.


Family law mediation is a voluntary process by which a neutral third party, called the "mediator", facilitates a settlement of the issues arising from marriage breakdown. In the event that some or all issues are not resolved in mediation, and the parties have signed a "Mediation-Arbitration Agreement", the matter would then proceed to arbitration for determination of the issues.

In some cases of "Mediation-Arbitration", the mediator and arbitrator are the same person, and this person uses no knowledge of the discussions in mediation once becoming the arbitrator. In other cases, the mediator and arbitrator are different people.

The requirement for screening for domestic violence and power imbalance is required prior to mediation and on an ongoing basis into arbitration. If the matter has been mediated by one person, and screened by that person, and a different person becomes the arbitrator, then a different person is required to screen for the arbitration.



The Arbitration Act requires that the parties be treated equally and fairly. Each party is to be given an opportunity to present a case, and to respond to the other party's case (or other parties' cases if there are more than two parties).

The arbitrator is not to be biased, and the parties have a right to a fair hearing. They are to have knowledge of each other's cases, with advance notice and the opportunity to present and respond.


Family law arbitration is a good option to have your case heard privately, through a procedure that suits your needs, with finality and closure by way of a binding decision based on the law as determined by a neutral, skilled adjudicator chosen by you and your spouse.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions