Family disputes can be emotionally charged and complex, often requiring a fair and effective resolution process. In Canada, one method that has gained popularity in recent years is family arbitration. Family arbitration offers parties the opportunity to resolve their disputes outside of the traditional court system. They do this with the assistance of a neutral third party known as an arbitrator.
However, many who are considering the use of an arbitrator wonder whether the outcome of family arbitration in Canada is legally binding and enforceable. Hence, in this article, we will explore the legal framework surrounding family arbitration in Canada and shed light on the enforceability of its outcomes.
Provincial and territorial legislation
Family arbitration in Canada is governed by provincial and territorial legislation, which varies across jurisdictions. However, the overarching legislative framework is consistent in recognizing and providing for the enforceability of family arbitration awards.
The Uniform Law Conference of Canada (ULCC) developed the Uniform Arbitration Act (UAA), which has been adopted by most provinces and territories. The UAA provides a comprehensive framework for arbitration, including family arbitration, and ensures the enforceability of arbitration awards.
Under the UAA, parties to a family arbitration agreement can choose to make the outcome of the arbitration legally binding and enforceable. This means that if the parties reach a resolution through arbitration, the resulting award can have the same force and effect as a court order. However, it is important to note that the enforceability of a family arbitration award is contingent upon compliance with certain legal requirements.
Ensuring enforceability
To guarantee enforceability, the arbitration process must adhere to the principles of procedural fairness and natural justice. This includes several different factors: providing each party with an opportunity to present their case, ensuring that the arbitrator is impartial and independent, and giving reasons for the award. If these requirements are not met, the enforceability of the award may be called into question.
Once a family arbitration award has been issued, it can be enforced in a similar manner as a court order. The enforcement mechanisms available vary by jurisdiction but typically involve applying to the court for an order to enforce the award. The court will then review the award. If satisfied that it meets the necessary requirements, the court will issue an order enforcing it. This allows the winning party to take the necessary steps to ensure compliance with the award, such as collecting assets or enforcing custody arrangements.
Is family arbitration right for me?
It is worth noting that family arbitration is not appropriate for all types of family disputes. Certain matters, such as divorce or separation, child custody, and support issues, are well-suited for arbitration. However, issues related to criminal matters or public policy concerns are generally excluded from arbitration. Each province and territory has specific legislation outlining the types of disputes that can be submitted to family arbitration, so it is important to consult an expert in your province or territory to determine the scope of arbitration in a particular jurisdiction.
Family arbitration offers numerous benefits, including privacy, flexibility, and specialized expertise. Nonetheless, it is important for parties to understand the implications of choosing arbitration over traditional court proceedings. By opting for arbitration, parties are essentially relinquishing their right to have their dispute heard and determined by a judge. Instead, they are placing their trust in the arbitrator’s decision-making abilities and expertise in family law matters. For many, this is ideal. Others may be hesitant to go in this direction, so gathering facts from an arbitration expert can help you make the right decision.
How can I gather more information?
To reiterate, the outcome of family arbitration in Canada can be legally binding and enforceable, provided that the necessary legal requirements are met. The Uniform Arbitration Act and provincial/territorial legislation provide a framework that ensures the enforceability of family arbitration awards. However, it is essential for parties considering family arbitration to carefully review the applicable legislation and seek legal advice to understand the specific rules and limitations of arbitration in their jurisdiction.
At the offices of Dr. Ellie Bolgar, we can help educate you about the arbitration process. We’ll explain the process and describe how it differs from mediation and other options for solving family disputes. We employ an expert in arbitration who can explain to you why he believes in this form of conflict resolution and help you determine whether it’s the right path for you to take. For more information, contact our office at 604-371-0198.