“What is divorce arbitration?”
Divorce arbitration is where an arbitrator makes a binding decision about the issues raised by your separation or divorce. The arbitrator is a neutral third party, and is normally a senior family law lawyer. Arbitration is a lot like a private court. The main advantages are the speed and confidentiality of the process.
“What happens if your divorce separation agreement requires arbitration, and court proceedings have been commenced?”
You can have the court proceedings “stayed” (or stopped) by a family law judge. This is covered by section 7 of the Arbitration Act of Ontario, which provides:
(1) If a party to an arbitration agreement commences a proceeding in respect of a matter to be submitted to arbitration under the agreement, the court in which the proceeding is commenced shall, on the motion of another party to the arbitration agreement, stay the proceeding.
(2) However, the court may refuse to stay the proceeding in any of the following cases:
1. A party entered into the arbitration agreement while under a legal incapacity.
2. The arbitration agreement is invalid.
3. The subject-matter of the dispute is not capable of being the subject of arbitration under Ontario law.
4. The motion was brought with undue delay.
5. The matter is a proper one for default or summary judgment.
(3) An arbitration of the dispute may be commenced and continued while the motion is before the court.
(4) If the court refuses to stay the proceeding,
(a) no arbitration of the dispute shall be commenced; and
(b) an arbitration that has been commenced shall not be continued, and anything done in connection with the arbitration before the court made its decision is without effect.
(5) The court may stay the proceeding with respect to the matters dealt with in the arbitration agreement and allow it to continue with respect to other matters if it finds that,
(a) the agreement deals with only some of the matters in respect of which the proceeding was commenced; and
(b) it is reasonable to separate the matters dealt with in the agreement from the other matters.
(6) There is no appeal from the court’s decision.
“What is I’m unhappy with the divorce arbitration decision?”
You can appeal the divorce arbitration decision in certain circumstances. This is covered by section 45 of the Arbitration Act of Ontario, which provides:
(1) If the arbitration agreement does not deal with appeals on questions of law, a party may appeal an award to the court on a question of law with leave, which the court shall grant only if it is satisfied that,
(a) the importance to the parties of the matters at stake in the arbitration justifies an appeal; and
(b) determination of the question of law at issue will significantly affect the rights of the parties.
(2) If the arbitration agreement so provides, a party may appeal an award to the court on a question of law.
(3) If the arbitration agreement so provides, a party may appeal an award to the court on a question of fact or on a question of mixed fact and law.
(4) The court may require the arbitral tribunal to explain any matter.
(5) The court may confirm, vary or set aside the award or may remit the award to the arbitral tribunal with the court’s opinion on the question of law, in the case of an appeal on a question of law, and give directions about the conduct of the arbitration.