Author: Lailna Dhaliwal LLP |

Pursuant to s. 51 of the FLA, family arbitration is defined as an arbitration that deals with matters that could be dealt with in a marriage contract, separation agreement, cohabitation agreement, or paternity agreement.

Before any arbitration proceeding may commence, both parties must give their consent to participate by signing an arbitration agreement.

This agreement stipulates that the parties waive the right to litigate the matter in court and sets out the conditions surrounding the arbitration, including

  • Who will arbitrate?
  • Where and when the arbitration will occur; and
  • What issues will be arbitrated

It is important to carefully draft the arbitration agreement since the arbitrator is only authorized to decide issues that are specifically included in the agreement. In other words, any decisions made on issues that are not included in the initial agreement are unenforceable.

Any determinations made by the arbitrator are incorporated into an award, which binds both parties and is legally enforceable. The conditions for enforceability are set out in s. 59.6(1) of the FLA.