Deciding to arbitrate

Both sides to the dispute must agree to arbitrate before any arbitration can start.

A family arbitration agreement can be binding only if:

  • The agreement is in writing
  • The agreement is made after the dispute has arisen
  • The agreement spells out how the award may be appealed
  • The arbitration is conducted exclusively under the law of Ontario or another Canadian jurisdiction
  • Both sides certify they have received independent legal advice
  • The arbitrator certifies that both sides have been screened for domestic violence or power imbalances and that the arbitrator has considered a report of the screening
  • Beginning April 30, 2008, the arbitrator must also be able to say that he or she has had appropriate training approved by the Attorney General.

If these conditions are not met, the arbitrator's decision may not be enforceable in court.

Parties also run the risk that their family arbitration agreement will be set aside by the court if one of them is found to have failed to make relevant financial disclosure or did not understand the nature or consequences of the agreement.

It is important to spell out in the arbitration agreement the questions that the arbitrator is to decide. The arbitrator has no power to make decisions on issues he or she is not asked to decide.