Learn how arbitration can help you and your spouse come to an agreement about important matters like property and parenting time. Find out if it’s right for you and how to find an arbitrator.
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Arbitration is a way for you and your spouse to try and come to an agreement and decide on important matters like divorce, property and parenting time.
Arbitration is a process where each person tells their side of the story to a neutral party (the arbitrator) and asks the arbitrator to decide. You and the other person must agree on what the arbitrator will decide on before arbitration begins.
The arbitrator makes decisions based on the law. A decision from an arbitrator is called an award. Arbitration is less formal and more flexible than going to court.
You and the other person must get independent legal advice from a lawyer before starting arbitration. This is necessary for family arbitration awards to be enforceable in court.
What an arbitrator can decide
An arbitrator’s award can cover things like:
- child and spousal support
- parenting time
- decision-making responsibility of children
An arbitrator can’t:
- grant a divorce
- annul a marriage
- declare someone to be or not be someone else’s child (you need to go to court to do this)
Family arbitration matters involving children must be decided in the best interest of the child (see section 24 of the Children’s Law Reform Act). Arbitrators must report any signs that a child has been abused or needs protection to police or a child welfare agency.
Arbitration and legal advice
Arbitration awards can’t be enforced in court unless both sides received legal advice, so you should talk to a lawyer if you choose arbitration. For example, you may need to go to court to enforce the results of arbitration so you can register for child support payments.
An arbitration agreement must set out what the arbitrator can decide. Each person should get independent legal advice to help determine what issues the arbitrator’s award can address.
You can find a lawyer experienced in family law through the Lawyer Referral Service of the Law Society of Ontario.
Your lawyer will give you a certificate of independent legal advice before arbitration begins. A copy of the certificate must be attached to the family arbitration agreement if you go to court.
What happens during arbitration
Although arbitration takes place outside of a courtroom, it is a legal proceeding and the arbitrator acts like a judge. The arbitrator must be impartial and give each person the opportunity to present their case.
During arbitration, you may be asked to share evidence including information about:
- your income and employment
- assets and liabilities
- your children’s needs
- each person’s ability to care for children
- other information relevant to the award the arbitrator is making
The arbitrator will consider the evidence and each person’s story when rendering an award.
Find an arbitrator
An arbitrator could be a:
- social worker
- business person
Family arbitrators must be trained:
- in Ontario family law
- how to screen for domestic violence and power imbalances
Learn more about the required training for family arbitrators.
List of accredited arbitrators
The Alternative Dispute Resolution Institute of Ontario maintains a list of dispute resolution professionals, including arbitrators. You can search the list by location and area of expertise, for example family law or banking and finance.
The Family Dispute Resolution Institute of Ontario maintains a list of family dispute resolution professionals. You can search the list by location and specific areas of practice within family dispute resolution, for example children and youth or finance.
Decide on an arbitrator
When you choose an arbitrator:
- select an arbitrator who has professional credentials and experience as a family lawyer, dispute resolution specialist or both (not all lawyers have arbitration training or experience)
- ask the arbitrator about their experience and credentials
- pick someone both sides trust to be fair, competent and diligent
Arbitrators are not regulated in Ontario. However, if an arbitrator does not follow the law, then their award may not be enforceable in court.
Cost of arbitration
Arbitration may or may not be cheaper than going to court. If one person doesn’t agree with what the arbitrator decides, you will need to continue arbitration, which will cost more. You could also end up going to court if arbitration doesn’t work out.
If you choose arbitration, you may need to pay for:
- the arbitrator’s time
- your lawyer
- costs for space where the arbitration takes place (for example, renting a room or office)
- costs for keeping a transcript of the process
You can either:
- agree to split costs with the other person
- let the arbitrator decide who pays as part of their award
Legal aid is not usually available for family arbitration.
Arbitrators can order one person to pay part of the legal costs for the other person. Arbitrators follow the same rules as the courts when they make awards about payment, unless both parties agreed otherwise.
Enforce arbitration awards
You may need to ask the Superior Court of Justice to enforce the award arbitrator makes. The process depends on whether or not you or the other person have already started a case in family court.
If a case has not started, you or the other person can either:
- file a Form 32.1 Request to Enforce a Family Arbitration Award in the court to enforce the terms of the arbitration award
- file a Form 8: Application (General) to enforce a family arbitration award
If a case has started, you or the other person will need to bring a motion to enforce an arbitration award. This will usually be a motion under Rule 14 of the Family Law Rules, but in some circumstances may also include a motion under Rule 16. Your lawyer can provide advice about this.
If your case has or has not started, your court documents must include:
- the certificates of legal advice from each person’s lawyer
- the family arbitration agreement
- the family arbitration award (if applicable)
- a Form 35.1: Affidavit (decision-making responsibility, parenting time, contact) if you are seeking an order for parenting time or decision-making responsibility in respect of a child, and if required, a Form 35.1A: Affidavit (child protection information)
Appeal arbitration awards
You can appeal a family arbitration award if:
- you believe the arbitrator did not apply the law properly
- you and the other person agreed before going to arbitration that either side could appeal (without getting leave from the court)
- you and the other person agree that the arbitrator made a factual error
If you and the other person do not agree and you want to appeal, you can:
- bring a motion in the Superior Court of Justice or the Superior Court of Justice Family Court Branch to get permission (called “leave”) to appeal the award within 15 days of the arbitration award
- file a Form 38: Notice of Appeal within seven days if permission is granted
If you and the other person agree and you want to appeal, you don’t:
- need the court’s permission
- need to bring a motion to leave to appeal
You must file your Notice of Appeal within 30 days of the arbitrator’s award. The award must be appealed within seven days if it is a temporary award.
Rule 38 of the Family Law Rules lists the specific requirements for documents that you need to file and timelines you need to follow to appeal a family arbitration award.
Setting aside an arbitrator’s award
You can also ask the court to set aside the arbitrator’s award on certain grounds. For example, if the arbitrator didn’t follow the right procedures or didn’t give each person a chance to present their case.
A request to set aside must be started within 30 days of the award by filing Form 8: Application (General) with the court.
Faith-based family arbitration
Ontario law allows you to talk to a religious official or someone knowledgeable in your religion to help resolve a family dispute.
However, if an award is made based on religious principles, the award would not be a valid family arbitration award under the law. Both spouses could comply with the award voluntarily, but the award would not be enforceable if one of the people involved took it to court. The court can only enforce arbitration following Canadian law.
A religious official can conduct a family arbitration under Ontario law if they completed the required training and follow the law on arbitration. The arbitration would be enforceable like any other arbitration.
Domestic violence and family arbitration
There are safeguards in place to help protect vulnerable people who choose arbitration. For example, someone who has experienced domestic violence.
Before any arbitration starts, both people are interviewed separately by a professional who is trained to recognize the signs of domestic violence and significant imbalances of decision-making power. This helps to determine the following things before the arbitration starts:
- if there is anything that would prevent someone’s full participation in family arbitration
- whether the arbitrator should set safeguards, for example that the parties should not be alone together
A report about the results of the screening process must be given to the arbitrator before arbitration can start.
Screening for domestic violence can be done by a:
- social worker
- other mental health worker
Your arbitrator or lawyer will arrange the screening process.
Alternatives to arbitration
Arbitration is one option that you and your spouse could use to try and come to an agreement about getting divorced and/or decision-making responsibility in respect of a child. Other options include:
To save time and money, it’s recommended that you try mediation, arbitration or collaborative family law before going to court.
If you and your spouse cannot agree on parenting, separation or divorce issues, a mediator can help you communicate and reach an agreement. Unlike arbitration, a mediator cannot make decisions for you. Learn more about mediation.
Collaborative family law
Collaborative family law, or collaborative divorce, is a voluntary process where each person and their lawyers are committed to respectful communication and full transparency to help you make decisions without going to court. The Ontario Association of Collaborative Professionals maintains a list of legal professionals who practice collaborative family law in Ontario.