Legal structure

On April 30, 2007, the Family Statute Law Amendment Act, 2006, came into force. The Act amends the Arbitration Act, 1991 and the Family Law Act to ensure that private dispute resolution in family matters using arbitration follows similar principles to such private dispute resolution by other means.

An arbitration is a method of resolving disputes in which the disputing parties agree to comply with a decision of a neutral person, or a number of neutral persons. The arbitrator gets his or her mandate and powers from an arbitration agreement, which is a legal contract that sets out the questions for an arbitrator to decide and that is supplemented by the statutes mentioned above. The arbitrator has no authority to decide questions not referred to arbitration in the agreement.

Under the 2006 amendments, a family arbitration agreement is a 'domestic contract' as defined in the Family Law Act . This means that to be valid, it must meet certain conditions, in addition to those that apply to all contracts:

  • It must be witnessed and in writing
  • It must state that the arbitration is governed exclusively by Ontario or other Canadian law.

In addition, if a court finds that one party failed to make relevant financial disclosure or did not understand the nature or consequences of the family arbitration agreement, the court has the power to set the family arbitration agreement aside.

The decision of an arbitrator is known as the 'award'. Arbitral awards are enforceable in court. Awards in family arbitrations are brought for enforcement to the Family Court or the Superior Court of Justice. The procedure is set out in section 59.8 of the Family Law Act .

To be enforceable, a family arbitral award must come from an arbitration in which the arbitrator conformed to the rules set out in the governing statutes (the Arbitration Act, 1991 and the Family Law Act ) and in the regulations under the Arbitration Act, 1991 . These laws cover the procedures of a family arbitration conducted in Ontario even if the arbitrator is asked to apply the law of another Canadian province or territory to the dispute itself. Ontario law allows considerable flexibility to design a procedure appropriate to the parties, subject to some mandatory rules.