Stop. Stop assuming court is your only option when family law negotiations break down.
I’ve watched clients spend $80,000 litigating custody disputes that could have been resolved in arbitration for $25,000. I’ve seen couples wait 18 months for a trial date when an arbitrator could have heard their case in six weeks. I’ve represented people so traumatized by the adversarial court process that they’ll accept almost any settlement just to avoid another day in that courtroom.
And after 12 years practicing family law across Ontario, I can tell you this: arbitration is one of the most underutilized tools in family law, and most people don’t understand when it’s the right choice – or how dramatically different it is from both mediation and litigation.
Here’s what arbitration actually is: you and your ex hire a private decision-maker (the arbitrator) who acts like a judge. You present evidence, make legal arguments, and the arbitrator makes a binding decision based on Ontario family law. It’s like having your own private courtroom, but faster, more flexible, and more confidential than the public court system.
Arbitration sits in the middle ground between mediation and litigation. In mediation, nobody can force a decision – you either reach agreement or you don’t. In litigation, a judge makes the decision but you wait months or years for court time, you’re subject to rigid procedural rules, and everything happens in public. Arbitration gives you the binding decision-making power of litigation with more control over timing, process, and privacy.
But here’s what clients get wrong: they think arbitration is always cheaper and faster than court. It’s not. They think it’s less formal and adversarial than litigation. It is, but not by as much as they imagine. They think they can arbitrate any family law issue anytime. They can’t – there are strict legal requirements that make arbitration awards enforceable, and missing even one renders the entire process worthless.
The stakes are high. If you choose arbitration when your situation calls for litigation, you might end up paying twice – once for the arbitrator and again when you have to go to court anyway because the award isn’t enforceable. If you litigate when arbitration would have worked, you’ll spend months and potentially tens of thousands of dollars more than necessary. If you try to mediate when power imbalances exist, you might agree to terms that don’t protect your interests.
Understanding when arbitration makes sense, how it actually works in Ontario, what it costs, and whether your situation is appropriate for arbitration is critical to making smart decisions about resolving your family law dispute.
What Is Family Law Arbitration in Ontario
Family law arbitration is governed by two pieces of legislation in Ontario: the Arbitration Act, 1991 and the Family Law Act. These laws create strict requirements that make arbitration very different from both mediation and regular commercial arbitration.
The process starts when both parties agree to arbitration and sign an arbitration agreement. This isn’t optional – you cannot be forced into arbitration. Both sides must voluntarily consent. The arbitration agreement must specify exactly what issues the arbitrator will decide. You might ask the arbitrator to determine custody arrangements, or child support, or property division, or some combination – but whatever you ask them to decide must be clearly stated in the agreement.
Before you sign that arbitration agreement, you must receive independent legal advice from a lawyer. Not “it’s recommended” – it’s mandatory under Ontario law. Your lawyer will review the arbitration agreement with you, explain what you’re agreeing to, discuss the implications of giving up your right to go to court, and provide you with a Certificate of Independent Legal Advice. Without this certificate, your arbitration award will not be enforceable in court. This requirement exists to protect both parties and ensure everyone understands what they’re committing to.
Once the agreement is signed and you’ve both received independent legal advice, you select an arbitrator. This is one of the key advantages of arbitration – you choose your decision-maker. In court, you get whatever judge is assigned. In arbitration, you and your ex (or your lawyers) jointly select someone you both trust. Most arbitrators are experienced family lawyers or retired judges with specialized training in arbitration and domestic violence screening.
The arbitrator must meet specific training requirements set by Ontario’s Attorney General. They need at least 14 hours of training in screening for power imbalances and family violence, plus 10 hours of refresher training every two years. These requirements exist because family law arbitration can be inappropriate when there’s abuse, violence, or significant power imbalances between parties.
Before the arbitration proceeds, the arbitrator must screen both parties separately to assess whether there’s domestic violence or power imbalances that would prevent fair participation. This screening is mandatory. If the arbitrator identifies concerns, they can refuse to proceed or implement safeguards to protect the vulnerable party.
The arbitration itself resembles a private trial. You and your ex (usually with lawyers) present opening statements explaining your positions. You present evidence – financial records, expert reports, witness testimony, documents supporting your case. The arbitrator can ask questions. Your lawyer can cross-examine your ex and their witnesses. Your ex’s lawyer can cross-examine you and your witnesses. You make closing arguments summarizing why the law and evidence support your position.
Unlike court where you’re limited to specific court dates and procedures, arbitration offers flexibility. You schedule hearings when convenient for everyone involved. You can hold sessions in the arbitrator’s office, a lawyer’s boardroom, or virtually. You can structure the process to suit your case – maybe one full day for a straightforward support issue, or multiple sessions over weeks for complex property division.
After hearing all the evidence and arguments, the arbitrator makes a decision called an arbitration award. This award must be in writing, include reasons explaining the decision, state where and when it was made, and be signed by the arbitrator. The award is final and binding. Subject to limited appeal rights, both parties must comply with it just as they would a court order.
The key phrase there is “limited appeal rights.” Unlike court decisions which can often be appealed, arbitration awards have very narrow grounds for appeal. Generally, you can only appeal if the arbitration agreement allowed appeals and specified the grounds, or if you can show the arbitrator made an error of law or serious procedural unfairness. This finality is both an advantage (closure, no prolonged appeals) and a risk (if you don’t like the decision, you’re usually stuck with it).
Issues You Can Arbitrate – And Issues You Cannot
Arbitrators have broad authority to decide most family law issues, but there are important limitations. Under Section 51 of the Family Law Act, arbitrators can decide any matter that could be addressed in a marriage contract, separation agreement, cohabitation agreement, or paternity agreement – provided the arbitration is conducted exclusively in accordance with Ontario law or another Canadian jurisdiction.
This means you can arbitrate: decision-making responsibility (custody) and parenting time, child support amounts and payment terms, spousal support amounts and duration, division of property and assets, division of debts, possession of the matrimonial home, and equalization payments.
What you cannot arbitrate: the actual divorce itself (only a judge can grant a divorce), adoption matters, and decisions made under religious law that conflict with Canadian law. If an arbitrator makes decisions not in accordance with Ontario or Canadian law, those decisions are unenforceable.
For issues involving children, there’s an additional critical requirement: every decision must be made in the child’s best interests, considering the factors set out in Section 24 of the Children’s Law Reform Act. The arbitrator must apply the same legal test a judge would apply. This isn’t discretionary – it’s the law. If the arbitrator makes a parenting decision that clearly isn’t in a child’s best interests, that portion of the award can be challenged.
I worked with a couple last year who wanted to arbitrate everything including a complex parenting schedule for their three children (ages 4, 7, and 10). The arbitrator heard extensive evidence about each parent’s relationship with the children, their work schedules, the children’s activities and school situations, and expert opinion from a child psychologist. The resulting award was detailed, thoughtful, and specifically referenced how each element served the children’s best interests. That award has been working well for both parents and the children for over a year now.
Contrast that with a case where parties tried to arbitrate property division using an arbitrator who applied “fairness” principles rather than strictly following Ontario’s Family Law Act rules for equalization. When one party tried to enforce that award in court, the judge refused to enforce the property provisions because they weren’t based on Ontario law. The parties had wasted thousands of dollars and months of time on an unenforceable process.
When Arbitration Makes Sense
Arbitration isn’t right for every family law case. Here’s when it typically works well.
You need a binding decision but court delays are unacceptable. Ontario’s family courts are backlogged. Getting to trial can take 12-18 months or longer. If you need a decision within weeks or a few months, arbitration can deliver. This is particularly important for parenting disputes where children are in limbo, or financial issues where delay creates hardship.
You want privacy and confidentiality. Court proceedings are public. Anyone can attend your trial, and court files are accessible. Arbitration is private and confidential. If you’re a public figure, a business owner, or simply someone who values privacy, arbitration keeps your family matters out of public view.
You want to choose your decision-maker. If there’s an arbitrator with particular expertise in your type of case – maybe complex executive compensation for support calculations, or business valuation for property division – you can select someone with that specific knowledge. You can’t choose your judge.
The issues are discrete and well-defined. Arbitration works best when you can clearly identify what needs to be decided. “What should child support be given these income figures?” or “How should this business be valued and divided?” are concrete questions suitable for arbitration. Broader, more amorphous disputes where the issues keep shifting may need the structure and gatekeeping function of the court system.
Both parties want finality and closure. If you’re both exhausted by the conflict and want a final decision you can live with even if you don’t love it, arbitration’s limited appeal rights can provide that closure. Once the arbitrator decides, you’re done.
You’ve already narrowed issues through mediation. Med-arb (mediation-arbitration) is increasingly popular. You attempt mediation first, resolve what you can, then arbitrate the remaining issues. This hybrid approach can be very effective and cost-efficient.
I represented a client last year in a med-arb process. Through mediation, they resolved all parenting issues and most property division questions. The only remaining dispute was valuation and division of his professional practice. Rather than litigate that one issue in court (which would require starting a full court file, case conference, motions, settlement conference, trial), we arbitrated it. The arbitrator heard expert evidence from business valuators, made a decision on value and division, and issued an award – all within two months at a fraction of what litigation would have cost.
When Arbitration Is The Wrong Choice
There are situations where arbitration should not be used, and pushing forward anyway can be harmful or wasteful.
There’s domestic violence, abuse, or significant power imbalances. Despite mandatory screening, arbitration’s private nature can be dangerous when one party has used violence or coercion. The court system has more safeguards – security, public accountability, support workers. If you’re afraid of your ex, if they’ve been violent or controlling, court is likely safer than arbitration.
One party can’t afford legal representation. While you can theoretically arbitrate without lawyers, it’s extremely risky. Arbitration is an adversarial legal process. If one party has a lawyer and the other doesn’t, the power imbalance is severe. Unlike court where judges have some obligation to ensure self-represented parties understand proceedings, arbitrators are neutral decision-makers with less ability to assist unrepresented parties.
You need urgent protection orders. Restraining orders, exclusive possession of the home, passport surrender – these emergency orders can only come from courts. Arbitrators can’t provide immediate enforceable protection the way judges can.
The Office of the Children’s Lawyer should be involved. In high-conflict custody cases where children’s voices need to be heard independently, the OCL provides lawyers or clinical investigators for children. This service is only available through the court system, not private arbitration.
You can’t afford the arbitrator’s fees. Arbitrators charge hourly rates typically ranging from $300-600+ per hour depending on their experience. For a straightforward case requiring one full day of hearing, you might pay $3,000-6,000 just for the arbitrator (split between both parties). Complex cases requiring multiple hearing days can cost $15,000-30,000 in arbitrator fees alone – and that’s before lawyer fees. If you can’t afford this, court is free.
You suspect the other party is hiding assets or income. Court has strong discovery powers, contempt sanctions, and consequences for non-disclosure. Arbitration has more limited tools for compelling disclosure. If you’re dealing with someone who’s deliberately hiding financial information, the court’s enforcement mechanisms may be necessary.
I advised against arbitration last year when a client suspected her high-earning ex was dramatically underreporting income. We needed the court’s discovery powers, ability to compel production of documents from third parties, and sanctions for non-compliance. In arbitration, if he refused to produce information, our recourse would be limited. In court, the judge can draw adverse inferences, make orders for disclosure, and punish non-compliance with costs or even contempt findings.
The Reality Of Costs And Timing
One of the biggest misconceptions is that arbitration is always cheaper and faster than court. Sometimes yes. Sometimes no.
Arbitration costs include: arbitrator fees (typically $300-600/hour split between parties), your own lawyer’s fees (same hourly rates as for litigation), expert witness fees if needed (business valuators, psychologists, etc.), and other disbursements (document production, transcripts if needed).
Court costs include: your lawyer’s fees (same hourly rates), expert witness fees if needed, and court filing fees (relatively minimal). You don’t pay for the judge.
The potential savings in arbitration come from: faster scheduling (weeks not months for hearing dates), more flexibility in process (you can streamline procedures with arbitrator agreement), focus on specific issues (you only arbitrate what needs deciding), and potentially shorter hearing time (some arbitrators are more efficient than court processes).
But here’s the catch: if the case is complex, if there’s significant evidence to review, if legal arguments are sophisticated, the arbitrator still needs time to consider everything. A case that would take three days to try in court might take three days in arbitration. You’ve just paid for a private judge for those three days rather than using the free public system.
In my experience, arbitration saves money compared to litigation when: issues are relatively discrete and well-defined, parties are both reasonable and prepared, discovery and disclosure happen cooperatively without dispute, and the actual hearing is efficient. Arbitration can cost more than litigation when: there are discovery disputes requiring multiple preliminary meetings with the arbitrator, the case requires extended hearing time, or the award gets appealed to court (then you’ve paid for arbitration and litigation).
As for timing, arbitration can be significantly faster. Instead of waiting 12-18 months for trial, you might arbitrate within 2-4 months. But only if both parties cooperate on scheduling and the arbitrator is available. If your ex delays in agreeing on the arbitrator, or if the chosen arbitrator is booked for months, the time savings disappear.
Making Arbitration Work For You
If you decide arbitration is right for your case, here’s how to make it effective.
Choose the right arbitrator. Look for someone with specific expertise in your type of issue. If it’s a high-net-worth property case, find an arbitrator experienced in complex financial matters. If it’s a parenting dispute, choose someone with strong background in child development and custody issues. Check if they’re listed with organizations like FDRIO (Family Dispute Resolution Institute of Ontario) or ADR Institute of Ontario.
Draft a clear arbitration agreement. Be specific about what the arbitrator can decide. Include provisions about costs, timelines, procedures, evidence rules, and appeal rights. The clearer your agreement, the fewer disputes during the process.
Do your preparation properly. Treat it like trial preparation. Organize your evidence, prepare your witnesses, develop your legal arguments. Don’t assume arbitration’s informality means you can show up unprepared.
Be strategic about what you arbitrate. If you can settle most issues and arbitrate only one or two, you’ll save significant costs. Don’t arbitrate everything when you could negotiate some issues.
Comply with the award immediately. Once the arbitrator decides, implement the award promptly. If you need to enforce it in court, file the required motion with your Certificate of Independent Legal Advice attached and request a court order enforcing the arbitration award.
When arbitration works well, it’s remarkable. Parties get binding decisions from qualified experts in weeks rather than months, in private settings rather than public courtrooms, with control over process and timing that litigation doesn’t offer. When it works poorly, parties waste money on an unenforceable process or find themselves in court anyway.
The key is making informed choices about whether arbitration serves your specific situation, and if you proceed, doing so with proper legal guidance to ensure the award will be enforceable when you need it.
At Nussbaum Law, we regularly advise clients on whether arbitration is appropriate for their family law disputes, represent clients in arbitration proceedings, and help enforce arbitration awards in court when necessary. We understand the strategic advantages and limitations of arbitration, and we’ll give you honest advice about whether it’s the right choice for your case.
Contact us for a consultation. We’ll review your situation, explain your options for resolving disputes – mediation, arbitration, litigation, or hybrid approaches – and help you choose the path that protects your interests while minimizing cost, time, and stress where possible.
