The Meaning and Importance of Arbitration Act Reg. 134/07: For Counsel, Arbitrators and Parenting Coordinators

In this issue, we address the continuing confusion among the bar and bench about the formal pre-requisites for binding family arbitration agreements.

As someone with considerable knowledge of the meaning, purpose and utility of the pre-arbitration requirement for screening for power imbalances and domestic violence. I am having difficulty with the recent decision of the Honourable Justice Gray in Giddings v Giddings, 2019 ONSC 7203 (CanLII).

As case law commentary team member Brahm Siegel notes below, the court in Giddings post-validated an arbitral process, even though it failed to comply with the clear and strict requirements of the Regulation under the Arbitration Act, on the basis that the parties had previously signed Minutes of Settlement that bound them to an Arbitration process in specified future circumstances. The court found, on grounds that are difficult for me to understand, that the parties’ contractual intent over-rode the statutory procedural requirements.

Those of us who respectfully question this approach, which Justice Gray previously proposed in Lopatowski v Lopatowski, 2018 ONSC 824 (CanLII), are hopeful that the Court of Appeal will have an opportunity to clarify the proper approach to non-compliance..   (See our prior case comment on Lopatowski).  

In the meantime, I encourage arbitrators to consider the following when structuring Arbitration processes:

• Counsel should not commit their clients, in Minutes of Settlement, to execute a family arbitration agreement at some point in the future unless the arbitrator has complied with their duty to ensure that the parties have first been screened for power imbalances including domestic violence.  

In Giddings, the parties signed Minutes that read as follows:

“The parties shall attend for domestic violence screening and sign an Arbitration Agreement with Mr. Grant…..”.

This provision treats “domestic violence screening” as a mere pro–forma step. It presumes that once this step is taken, an Arbitration Agreement must be signed.  This assumption is not correct.

The very purpose of such screening is to ascertain whether the case is suitable for arbitration at all. Screening contemplates the possibility that the case will be ‘screened out’ of private adjudication for any number of appropriate reasons. Or that specified procedural accommodations are required in order for the matter to be appropriate for private adjudication. Parties who have previously committed to participate in future Arbitration cannot be compelled to sign an Arbitration Agreement until screening has resulted in an assessment that the case is suitable for private adjudication, all appropriate recommended procedural accommodations have been brought to the attention of the Arbitrator, and the Arbitrator has determined that the matter is indeed suitable for the proposed process.

• Many counsel misunderstand this purpose of the screening requirement. Screening, which is for all forms of power imbalance and not only ‘domestic violence’, is the means by which cases are assessed to determine whether they are appropriate for private adjudication. Screening is not only a risk assessment of potential danger to a party, child or other adult arising from family violence, but also a comprehensive assessment of all forms of power imbalance between the parties that might render private adjudication not in the best interests of a child, or otherwise inappropriate.

The Ministry of the Attorney General has required family arbitrators to not only ensure that such an assessment has been conducted before the parties commit to the process, but also to gain enough information from the screening process to enable them to continuously conduct their own updated assessments throughout the arbitration process.

In other words, parties can and should be ‘screened out’ of family arbitrations at any time, even after the arbitration has commenced, if the case is no longer appropriate for private adjudication for reasons related to power imbalance (see Wainwright v Wainwright, 2012 ONSC 2686 (CanLII). This is why the initial screening is so important, and not merely the box-ticking exercise anticipated in the Minutes of Settlement that were executed by the parties in Giddings.

• The requirement of pre-Arbitration Agreement screening (among other requirements set out in Regulation 134/07) is unambiguous and strict, as noted by Justice Nelson in Horowitz v. Nightingale, 2017 ONSC 2168 (CanLII). It is also not unique to Ontario; both Manitoba and British Columbia mandate family arbitrators to personally ask questions of the parties for the purpose of such assessments before accepting clients into private adjudication.

• The duty to ensure this step is properly taken lies exclusively with the Arbitrator.  If an Arbitrator commences an arbitration process without complying with their duty to first ensure that appropriate screening has been conducted, that is a mistake on the part of the Arbitrator, one that cannot be corrected later, not by an Arbitral determination of jurisdiction nor by the court. The failure to properly constitute the Arbitration process renders any award issued pursuant to that process unenforceable by virtue of the plain wording of s. 59(6)(1) of the Family Law Act.

There are many reasons why a case may not be suitable for private adjudication. We have canvassed some of these reasons in prior FDRIO newsletters, including this excellent piece by Arbitration section co-chair Judith Nicoll in our April 2019 Edition of our Newsletter.

Many of the ‘failed’ arbitrations that we read about on appeals or motions to set aside, in the news or in cases where family Arbitrators have resigned, are often good examples of cases that were likely never appropriate for private adjudication, for one reason or another, in the first place, and perhaps ought to have been ‘screened out’ before they began.

The Regulation under the Arbitration Act was made to ensure that family arbitrators are thoughtful and careful when accepting the responsibility, and receiving payment, for the diversion of cases from the publicly funded and accountable court system.

Screening is not only mandatory, it is an enormously positive and useful procedural step in the family arbitration process, one that very much differentiates family arbitration from any other contractual dispute resolution process.

Hilary Linton is a Toronto family lawyer, mediator, arbitrator, Dispute Resolution Officer and trainer.