Efficient Divorce -Family Arbitration in Ontario | DTSW Guide

  • Family Arbitration is better than going to Family Court, but it is expensive.

  • Arbitration in Divorce is also an adversarial process.

  • Substantially higher costs. You are paying out of pocket for the judge (the arbitrator)

  • An arbitrator is given the powers of a judge and has the right to decide your case only on the basis of the law.

  • Similar to the court process except that the parties and their lawyers choose the judge and determine the procedural steps.

Divorce in Ontario - Arbitration
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Divorce in Ontario - Arbitration

Arbitration is also an adversarial process, similar to the court process except that the parties and their lawyers choose the judge and determine the procedural steps. Choosing between divorce arbitration vs mediation depends on the desired outcome; arbitration can create definitive closure through a binding decision, whereas mediation fosters a more collaborative resolution. The downfall is that parties pay the arbitrator, who is a privately retained professional (unlike Family Court where the judge is paid by the government).

In family arbitration, the arbitrator is granted the powers of a judge, making decisions based strictly on legal principles while offering a more adaptable environment than a courtroom. Creative solutions that result in an amicable divorce for your family cannot be considered. The arbitrator applies the law as he or she sees fit. Family arbitration can be more cost-effective and less stressful than Family Court, although it still requires entrusting the final decision to a selected arbitrator..

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Family Arbitration Process

Family arbitration is a dispute resolution process commonly used to settle family law issues, such as separation, divorce, and child custody matters, with a structured yet flexible approach. Family arbitration resembles a court trial but provides a more informal and adaptable setting, allowing both parties greater control over the proceedings.

  1. Choosing an Arbitrator: The family arbitration process starts when both parties agree to use arbitration and select a qualified arbitrator who can handle family law disputes. The arbitrator is a neutral third party, often a lawyer or retired judge with specialized training in arbitration and family law.
  2. Agreement to Arbitrate: The parties sign an agreement to arbitrate, which outlines the rules and procedures for the arbitration process. This agreement often includes details like the scope of the arbitrator’s authority, the issues to be arbitrated, and the confidentiality of the proceedings.
  3. Preparation and Exchange of Evidence: Each party, usually through their lawyer, prepares their case. This can involve gathering documents, interviewing witnesses, and preparing statements. The evidence is shared with the other party and the arbitrator before the arbitration hearing.
  4. The Arbitration Hearing: Each party presents their case during the arbitration hearing. This can involve making opening statements, giving evidence, questioning witnesses, and making closing arguments. The arbitrator oversees the hearing, ensuring it is conducted fairly and according to the rules set out in the arbitration agreement.
  5. Decision (Award): After the hearing, the arbitrator considers the evidence and decides. This decision, known as the arbitral award, is usually provided in writing and explains the reasons for the decision. The award is legally binding and can be enforced by a court if necessary.
  6. Appealing the Decision: Depending on the jurisdiction and the terms of the arbitration agreement, there may be limited options to appeal the arbitrator’s decision. Sometimes, an appeal can only be made on points of law or if there was a serious procedural error.

Mediator

Absent. Only the arbitrator is present.

Financial Information

Full financial disclosure of financial information is mandated by an arbitrator for both parties.

Types of cases

  • Child custody and access.
  • Division of property and equalizing payments.
  • Child and/or spousal support.

Time Required for Resolution

3 to 12 months. You establish the schedule with the arbitrator (private judge), but with briefs, discovery and a hearing, arbitration can still be a lengthy process. Customarily appeals are not possible.

Divorce Arbitration Costs

Substantially higher costs. Maybe even higher than the litigation process in court because in addition to discovery motions and a trial, you are paying out of pocket for the judge. But parties, or arbitrator, can issue rules to limit the expense.

Decision Maker

The Arbitrator.

Outcome

Arbitrator issues a final decision, which generally cannot be appealed.

Final Thoughts

A complex family law dispute can be made easier with family law arbitration, which provides a structured yet adaptable environment for resolution. While divorce mediation offers a collaborative approach, family arbitration serves as a structured alternative to the traditional court system, providing private and binding resolutions for complex disputes. It’s a path that encourages independent legal advice and fosters decision-making responsibility.

In Ontario, family law arbitration is gaining recognition as a viable option for resolving family law issues. It allows both you and your former partner to present evidence and have a say in the selection of the arbitrator. A key advantage of family law arbitration is that the arbitrator’s award is legally binding, similar to a court order, making it an efficient way to resolve disputes.

However, it’s essential to remember that power imbalances, such as issues arising from domestic violence, need to be carefully managed in these settings. The best interests of the children, including parenting time and other legal issues, must always be at the forefront of any dispute resolution process.

Collaborative divorce and collaborative law are other options that can help divorcing couples resolve their disputes without going to court. These methods can be particularly beneficial when one party may not feel comfortable facing the other face to face.

The goal of family law arbitration is to minimize conflict and promote the best outcomes for all parties involved, especially for any children affected by the process. Whether it’s through mediation, arbitration, or collaborative law, the key is to find the method that works best for your unique situation. Always seek legal advice from family law lawyers before making any decisions.

Ultimately, choosing family law arbitration for resolving disputes is a personal decision based on what will work best for you, your former partner, and your family. It’s about finding the best way to move forward, for you, your former spouse, and most importantly, for your children.

At DTSW:

We understand that you’re navigating through a challenging time. The path of divorce is often filled with uncertainty and emotional stress. But remember, you’re not alone in this journey. At DTSW, we’re here to help you find clarity amidst the confusion.

Our team of professionals is dedicated to assisting intelligent and successful individuals like you in crafting clear and straightforward separation agreements. We aim to ensure a smooth transition towards a secure future, sidestepping the excessive conflicts and costs often associated with traditional methods.

We know that you’ve arrived at this page because you’re seeking solutions, and we commend you for taking this step. It’s a testament to your strength and your commitment to finding the smart way forward.

We encourage you to reach out to us. Let’s discuss your situation and explore how we can assist you in this transition. We offer the option to collaborate via video conference or in-person at any of our six Greater Toronto mediation centers, located in Aurora, Barrie, North York, Vaughan, Mississauga, and Scarborough.

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About the Author:
Ken Maynard CDFA, Acc.FM

I assist intelligent and successful couples in crafting rapid, custom separation agreements that pave the way for a smooth transition towards a secure future. This efficient process is achieved in about four meetings, effectively sidestepping the excessive conflicts, confusion, and costs commonly linked to legal proceedings. Clients have the flexibility to collaborate with me either via video conference or in-person through a DTSW associate at any of our six Greater Toronto mediation centers, located in Aurora, Barrie, North York, Vaughan, Mississauga, and Scarborough.

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