Family Law Arbitrations: Choice and Finality under the Amended Arbitration Act, 1991 and Family Law Act
| Author | Philip M. Epstein, Q.C., LSM and Sheila R. Gibb |
| Pages | 21-46 |
Family
Law
Arbitrations:
Choice
and
Finality under
the
Amended
Act,
1991
and
Family
Law Act
Philip
M.
Epstein,
Q.C.,
LSM,
and
Sheila
R.
GiW
The
topic
of
family
law
arbitration
is
very timely
in
Ontario since
the
government
of
Ontario recently passed
Bill
27, the
Family
Statute
Law
Amendment
Act,
2006?
which,
among other
things,
amended
the
Arbitra-
tion
Act, 1991
and the
Family
Law
Act.2
Prior
to the
passing
of
this legisla-
tion, Ontario
law did not
differentiate
between
family
law
arbitrations
and
other arbitrations under
the
Act. Under
the new
legisla-
tive
regime, however,
the
distinguishes between
"family
arbitrations'^3
and
other arbitrations, with
the
effect
of
limiting
to
some
extent
the
ability
of
parties
to a
family
law
arbitration
to
determine
the
procedure
governing
the
resolution
of
their legal issues.
For the
most
part,
however, parties
who
wish
to
proceed with
family
law
arbitrations
Philip
M.
Epstein, Q.C.,
LSM is a
partner
and
Sheila
R.
Gibb
is an
associate
at Ep-
stein Cole
LLP in
Toronto.
Mr.
Epstein
is
quick
to
acknowledge that
the
majority
of
this
paper
was
authored
by Ms.
Gibb.
family
Statute
Law
Amendment Act,
2006,
S.O. 2006,
c.
i
[Family
Statute
Law
Amend-
ment
Act]
(reprinted
as the
Appendix
to
Anne Marie Predko
&
John
D.
Gregory,
"Overview
of the
Family
Statute
Law
Amendment Act,
2006,"
in
this
volume).
It is
important
to
note that
the
sections
of the
Family
Statute
Law
Amendment
Act
that
we
discuss
in
this paper (ss.
i,
4, and 5)
have
not yet
come into
force.
They will come
into
force
on a day to be
named
by
proclamation
after
the
Lieutenant Governor
in
Council makes
the
regulations contemplated
in s. 58 of the
amended
c. 17
Act}.
See
Section
D,
infra.
Family
Law
Act,
R.S.0.1990,
c. F.3
[collectively with
the
Act,
the
"Acts"].
Act,
s.
i.
21
1
2
3
22
PHILIP
M.
EPSTEIN,
Q.C.,
LSM,
AND
SHEILA
R.
GIBB
will continue
to be
able
to
direct
the
process
and
achieve
final
resolution,
as
this
paper sets
out
below.
Family
practitioners know that clients seeking greater
control,
pri-
vacy,
and
cost-saving
in the
resolution
of
their
family
law
disputes
are
increasingly pursuing
arbitration,4
and for
good reason. Arbitration
af-
fords
clients
a
large degree
of
direction over
the
resolution
of
their legal
issues.
Specifically,
clients
are
able
to set
many
of the
terms
and
proce-
dures
of an
arbitration,
including,
for
example,
who
will arbitrate
the
matter
and
where
and
when
the
arbitration will take place.
In
addition,
clients
are
able
to
determine
to a
large extent
the
finality
of the
arbitra-
tion award.
In
other words, unlike
in a
litigated matter, clients
are
able
to
decide
at the
outset, with some restriction, what
the
rights
of
appeal
will
be.
Where parties
to an
arbitration decide that there will
be no
rights
of
appeal
beyond that required
under
the
Act,
the
likelihood
that their arbitral issues will
be
resolved with
finality
upon delivery
of
the
award
is
very high.
The
legislative amendments under
the
Family
Statute
Law
Amendment
Act
will
affect
the way in
which
family
practitioners approach
family
ar-
bitrations.
For
example, under
the
amended
Family
Law
Act,
arbitration
agreements constitute domestic contracts (and accordingly must
be in
writing,
signed,
and
witnessed),
and
parties
to an
arbitration agreement
require independent legal advice.
In
addition, parties
are no
longer per-
mitted
to
(i)
choose
the law
under which their
family
arbitration
is to be
conducted (which means faith-based arbitrations
are of no
legal
effect)
or
(2)
contract
out of
appellate review
on a
question
of law
(which erodes
to
some extent
the
finality
of
arbitration decisions). However,
in our
view,
aside
from
a few
formalities,
the
amendments under
the
Family
Statute
Law
Amendment
Act
will
not
undermine
to any
great extent
the
choices
parties
are
able
to
make
when
proceeding
with
family
arbitrations. Fur-
ther,
in our
view,
the
amendments will
not
significantly
affect
the
final-
ity of
arbitration awards.
Indeed, arbitration awards remain assailable only
in
limited circum-
stances.
An
arbitration award
is
subject
to
appellate review
on
questions
of
law,
but
will
be
afforded
a
high
degree
of
deference
by the
courts;
Generally,
these clients enter combined mediation/arbitration agreements (that
is,
agreements
where
the
parties appoint
a
mediator
who
will become
an
arbitrator
if
a
settlement does
not
come
about
as a
result
of the
mediation).
This paper
is not
about
mediation.
It is
about what happens
in the
arbitration
process
if the
parties
have
chosen
to go
that route when
a
mediation
has
broken down
(or if the
parties
have
opted
to
proceed
directly
with
arbitration
due to a
fundamental
impasse
that
will
not be
bridged
in a
mediation
process).
4
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