The use of arbitration in a family law situation

Arbitration is an adjudication process and is very similar to a court process. The parties bring the issues to an impartial third-party arbitrator and the arbitrator makes a decision that is binding upon the parties. A mediator does not have the authority to make the decision. If the parties cannot voluntarily agree then the mediation process breaks down whereas the whole point of arbitration is that the parties have not been able to voluntarily agree and they need a third party to intervene.

The process and the costs of arbitration are as varied as the individuals involved. Arbitration is governed by the Arbitrations Act and by the Family Law Act. Essentially the arbitration process places a specific question or series of questions before the arbitrator that the arbitrator must answer. These are questions that the two parties have not been able to resolve using other methods, for instance the rights for spousal support and the amount of support to be awarded.

The process is usually determined by the parties. They can attend the arbitration themselves asking the arbitrator those specific questions or they can do it with counsel. They can do it in a very informal format where essentially the three parties, the arbitrator and the two principal parties or the arbitrator, the principal parties and their respective counsels sit around a conference room table and discuss the situation and provide such documentation as they deem appropriate, or it could be done according to the rules of civil procedure governing a court process.

At the end of the day, the arbitrator will prepare a written decision with reasons to substantiate his or her decision and then that decision will be binding upon the parties and enforceable by the Ontario Superior Court in the event of disagreement. The only route of appeal from arbitration is on an error in law or an error in the facts of the record. The facts of the record are the initial documentation submitted by the parties which substantiates their position and usually that documentation would be in a sworn format. If the arbitrator makes a decision and cites in his reasons that he is basing his decision on material in these documents that turns out later to be in error, then the decision would be appealable.

Costs of arbitration vary significantly again depending upon the resources that are utilized and the time that it takes. However, arbitration is infinitely cheaper than litigation. Even though you are not paying for the judge, a court process is so laborious, so time consuming, so laden with paper that there is no way that you can do a litigation process for the cost that you can an arbitration process, even though you are paying for the arbitrator.

An other advantage of the arbitration system is that you can choose who your arbitrator is going to be. You can choose an arbitrator who is a senior family law counsel, for example, who you know has an expertise in pensions if your issue is a pension issue or you can choose someone who is very strong on custody and access issues if it’s a custody and access issue. Also, arbitration is infinitely faster. Depending upon how complex the issues are, you can get an arbitrator to hear a matter.

In the space of a few weeks whereas if you start a court process today here in Ottawa (and it varies across the province) you might finish in two and a half years at the earliest.