Secondary arbitration

Secondary arbitration is defined in the Family Law Act (section 59.7) as a family arbitration that arises from a separation agreement, arbitral award or court order. Generally it deals with implementing or addressing issues arising from the earlier document, though its scope may be narrow or broad. Clarifying or adapting arrangements for children as circumstances change - education, access, vacations, etc - often fall into this category.

Secondary arbitrations must, like all other family arbitrations, be conducted exclusively under the laws of Ontario or of another Canadian jurisdiction, if they are to be enforceable in Ontario courts.

However, unlike other family arbitrations, secondary arbitrations may be agreed on before a dispute arises, the parties do not need to have independent legal advice before beginning the arbitration, and the documents need not be in writing. This is because the parties are presumed to have had these protections already, in the context of the proceeding or agreement that gave rise to the secondary arbitration.

The parties to a secondary arbitration must be screened for domestic violence and power imbalances before the arbitration, though there may be a mediation phase before the arbitration, and the screening may occur before the mediation as well.

Normally the person who does the secondary arbitration also does the screening, unlike in a pure arbitration, in which the screening is done by someone other than the arbitrator. The arbitrator must certify that both parties have been screened in relation to the secondary arbitration.

The record-keeping rules are slightly different for secondary arbitrations, because there may be several arbitrations under a single source document, such as a separation agreement or court order. A secondary arbitrator must create a record containing the following:

  1. a copy of the separation agreement, court order or family arbitration award from which the authority of the arbitrator arises
  2. for each secondary arbitration conducted by the arbitrator under these documents:
    1. the evidence presented and considered
    2. the arbitrator's notes taken during the hearing, if any
    3. the award and the written reasons for it.

These records must be kept for at least 10 years after the date of the award.