EXPLANATORY NOTE
This Explanatory Note was written as a reader’s aid to Bill 27 and does not form part of the law. Bill 27 has been enacted as Chapter 1 of the Statutes of Ontario, 2006.
Existing Ontario law does not differentiate between family arbitrations and other arbitrations under the Arbitration Act, 1991. In general, parties to an arbitration agreement can choose the law that will govern the arbitration.
The Bill creates a new regime for Ontario family arbitrations by making amendments to the Arbitration Act, 1991 and the Family Law Act. Some of the features of this regime are:
1. The term “family arbitration” is applied only to processes conducted exclusively in accordance with the law of Ontario or of another Canadian jurisdiction. Other third-party decision-making processes in family matters are not family arbitrations and have no legal effect.
2. Both the Arbitration Act, 1991 and the Family Law Act apply to family arbitrations, and the Family Law Act governs in case of conflict between the two statutes.
3. Family arbitration agreements are domestic contracts under Part IV of the Family Law Act and are enforced under that Act, not under the Arbitration Act, 1991.
4. A family arbitration agreement must be in writing, and each party must receive independent legal advice before making the arbitration agreement.
5. Power is provided to make regulations under the Arbitration Act, 1991 to govern family arbitrations. For example, these regulations could require arbitrators who conduct family arbitrations to be members of a specified dispute resolution organization, to undergo training, to submit reports, to inquire into matters such as power imbalances and domestic violence and to keep records.
6. A number of additional rules are provided for family arbitrations (for example, a party’s failure to object to an irregularity in the arbitration will not be considered a waiver of the right to object later).
7. A family arbitration award may be enforced using a process similar to that set out in section 50 of the Arbitration Act, 1991.
Subsection 72 (5) of the Child and Family Services Act is amended to add mediators and arbitrators to the list of persons who perform professional or official duties with respect to children and are required to report that a child may be in need of protection.
The Bill also rewrites section 24 of the Children’s Law Reform Act, which deals with the basis on which applications for custody or access are to be determined. The applicant’s ability to act as a parent is added to the list of matters to be considered by the court (clause 24 (2) (g)). The court is directed to consider, in assessing a person’s ability to act as a parent, the fact that the person has at any time committed violence or abuse against his or her spouse, a parent of the child, a member of the person’s household or any child (subsection 24 (4)). Unproclaimed amendments to the Act that were adopted in 1989 are repealed.