Top Five Points About Family Arbitration

Top Five Points About Family Arbitration

Family arbitration is becoming an increasingly-common option for the resolution of certain kinds of family law disputes.   Although it is not designed as a comprehensive substitute for all family law procedure and the more traditional dispute resolution mechanisms, and on certain narrow issues it can replace costly and time-consuming litigation in some circumstances.

Here are the top five points to know about family arbitration and how it works in Ontario:

1) What is arbitration?  

The concept of “arbitration” involves each side of a family dispute telling his or her side of the story before an “arbitrator”, i.e. an individual mutually-chosen to act as an impartial decision-maker.  The arbitrator is then asked to render a decision on the merits.   Generally speaking, it is a less formal and rigid procedure than is used in a traditional courtroom, although it still involves each sides putting forward documents and witnesses’ testimony as evidence in support of his or her position.    There is some latitude in connection with the procedure used, but in any case it must be equitable to both sides of the dispute and must adhere to the requirements of the provincial Arbitration Act, 1991.

2) The authority for family arbitration

The Family Law Act, together with the Arbitration Act, 1991 and its regulations, govern family law arbitrations and the procedure involved.  This legislation also sets out requirements for the training of arbitrators, and mandates that arbitrators file certain information with the Ministry relating to any completed family arbitrations.  Only arbitration awards that have been conducted in accord with this legislation, and in accordance with the law of Ontario or another province/territory, can be enforced by an Ontario court.

3) What can be arbitrated – and what cannot

Arbitrators are only allowed to resolve certain kinds of family law disputes, such as spousal or child support, custody and access to children, and division of property.  The scope of the arbitrator’s decision-making mandate – including the precise issue to be decided – must be set out in an arbitration agreement that is signed by both (or all) parties to the family dispute.  Note that if the arbitration award relates to a child or children, then it must be made in their best interests.

Conversely, there are certain issues that are beyond an arbitrator’s mandate.   Specifically, an arbitrator cannot:

• change official family status;

• grant a divorce;

• annul a marriage;

• declare that someone is or is not the parent of a particular child;

• make an order that is against the law, or which allows either party to break the law;

• decide anything that the parties could not have decided for themselves.

Also, family arbitrations that are based on any principles (including religious ones) that do not conform to Canadian law and legal principles will have no legal effect and are unenforceable in court.  

4) Independent legal advice required

Under the Family Law Act, it is mandatory for each party to a family arbitration to obtain independent legal advice from a lawyer, who will provide advice about the nature of family arbitration and the various consequences.  (In fact, an arbitration award that is purportedly made without the parties having independent legal advice is unenforceable.)   Each lawyer – who is separately paid by the individual he or she represents – provides a certificate of independent legal advice before the arbitration begins.  This certificate must accompany the arbitration agreement signed by the parties.

5) Enforcement of arbitration awards  

From a general standpoint, the enforcement of an arbitration award is governed by the legislation, which provides for a simplified procedure and stipulates the requisite forms and notices.   Beyond those requirements, however, the manner in which an arbitration award may be enforced is partly dictated by the nature of the award itself.   For example, if the award involves a monetary payment, then it can be filed with the court and enforced just like a court judgment would be.  On the other hand, child custody and access awards can only be enforced by a court if the award is considered to be in the child’s best interests; the applicable test is set out in the Children’s Law Reform Act.  An award relating to spousal support operates in the same manner as a separation agreement; if it is unconscionable in its scope or operation, then it will not be enforceable.  

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at  www.RussellAlexander.com

 

 

Wednesday’s Video Clip: Transfer of Property in Ontario Separation or Divorce

In Ontario, whenever there’s a marriage breakdown, and spouses separate or divorce, if they jointly own property, then usually one spouse will release his or her interest in that property, either in return for an equalization payment or other predetermined benefit.

In this video, Rita, a law clerk with Russell Alexander Family Lawyers, explains how transfers of property in Ontario work, focusing on mortgage issues, equalization payments, and land transfer tax; and what documents and information you will be asked to bring to an appointment.

 

 

Do you get your Christmas shopping done early or last-minute?

Do you get your Christmas shopping done early or last-minute?

I find when we do our christmas present shopping early we end up buying more and more. But I certainly do not want to be one of the shoppers you see running around the mall last-minute looking for gifts.

What do you do? Do you get your Christmas shopping done early or last-minute?

Read our responses or submit your own comment.

Become a Fan and join the discussion here: http://www.facebook.com/RussellAlexanderFamilyLawyers

 

Where’s your favourite place to eat in Philadelphia?

Where’s your favourite place to eat in Philadelphia?

Off to Philadelphia this week for the American Bar Association’s R3 Marketing Strategies Conference. I would appreciate any suggestions you may have for places to eat and things to do. Thanks.

Read our responses or submit your own comment. Become a Fan and join the discussion here:

http://www.facebook.com/RussellAlexanderFamilyLawyers

Twitter – Facebook POLL: Which cruise line do you prefer? Princess, Carnival, Celebrity, Cunard, Disney or something else?

Twitter – Facebook POLL: Which cruise line do you prefer? Princess, Carnival, Celebrity, Cunard, Disney or something else?

Read our responses or submit your own comment. Become a Fan and join the discussion here:

http://www.facebook.com/RussellAlexanderFamilyLawyers

Twitter – Facebook POLL: Do you have a smart phone? What are you using RIM, iPhone or something else? What is your recommendation?

Twitter – Facebook POLL: Do you have a smart phone? What are you using RIM, iPhone or something else? What is your recommendation?

Read our responses or submit your own comment. Become a Fan and join the discussion here:

http://www.facebook.com/RussellAlexanderFamilyLawyers

Twitter – Facebook POLL: What are your plans (Canadians this weekend) for Thanksgiving?

Twitter – Facebook POLL: What are your plans (Canadians this weekend) for Thanksgiving?

Read our responses or submit your own comment. Become a Fan and join the discussion here:

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Twitter – Facebook POLL (Thanks @bschorr): How do you like your thanksgiving turkey cooked: oven, BBQ, or deep fried?

Twitter – Facebook POLL (Thanks @bschorr): How do you like your thanksgiving turkey cooked: oven, BBQ, or deep fried?

Read our responses or submit your own comment. Become a Fan and join the dicussion here:

http://www.facebook.com/RussellAlexanderFamilyLawyers

 

Facebook POLL: How do you get your news: internet, newspapers, twitter, facebook?

Facebook POLL: How do you get your news: internet, newspapers, twitter, facebook?

Read our responses or submit your own comment. Become a Fan and join the discussion here:

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Is this Canada’s very own Jerry McGuire? Kai Nagata Blogs about why he quit his job at CTV

Is this Canada’s very own Jerry McGuire? Kai Nagata Blogs about why he quit his job at CTV

Nagata was CTV’s Quebec City Bureau Chief. He described himself as “.. a full-time employee making good money, with comprehensive benefits and retirement options”. But he reached a “breaking point” and described his experiences in the T.V. industry and his reasons for quitting at length in his blog. The blog has since gone viral and Nagata has become an overnight celebrity.

The Blog posting reminded me somewhat of the 1996 film Jerry McGuire and the lead character played by Tom Cruise. McGuire writes a mission statement about perceived dishonesty in the sports management business and how he believes that it should be operated.

Perhaps more importantly, the blog speaks to the power of social media and the disconnect many people experience with traditional media. I wonder what communications guru Marshall McLuhan would make of all this? Truly the medium here is the message.

Here are the 15 Best Quips by Kai Nagata from his blog “Why I quit my job”:

1. I quit my job because the idea burrowed into my mind that, on the long list of things I could be doing, television news is not the best use of my short life. The ends no longer justified the means.

2. Although bounded by certain federal regulations, most of what you see in a newscast is actually defined by an internal code – an editorial tradition handed down from one generation to the next – but the key is, it’s self-enforced. … Underneath this lies the fact that information is a commodity, and private TV networks are supposed to make money.

3. Consider Fox News. What the Murdoch model demonstrated was that facts and truth could be replaced by ideology, with viewership and revenue going up. Simply put, you can tell less truth and make more money.

4. Human beings don’t always like good nourishment. We seem to love white sugar, and unless we understand why we feel nauseated and disoriented after binging on sweets, we’ll just keep going. People like low-nutrition TV, too. And that shapes the internal, self-regulated editorial culture of news.

5. I admit felt a profound discomfort working in an industry that so casually sexualizes its workforce. Every hiring decision is scrutinized using a skewed, unspoken ratio of talent to attractiveness, where attractiveness often compensates for a glaring lack of other qualifications. The insecurity, self doubt, and body-image issues endured by otherwise confident, intelligent journalists would break your heart.

6. The idea has taken root that if the people reporting the news look like your family and neighbours, instead of Barbie and Ken, the station will lose viewers.

7. Aside from feeling sexually attracted to the people on screen, the target viewer, according to consultants, is also supposed to like easy stories that reinforce beliefs they already hold.

8. More damnably, the resulting strategy is now to compete with for-profit networks for the lowest hanging fruit. In this race to the bottom, the less time and money the CBC devotes to enterprise journalism, the less motivation there is for the private networks to maintain credibility by funding their own investigative teams. Even then, “consumer protection” content has largely replaced political accountability.

9. On a weekend where there was real news happening in Bangkok, Misrata, Athens, Washington, and around the world, what we saw instead was a breathless gaggle of normally credible journalists, gushing in live hit after live hit about how the prince is young and his wife is pretty. And the public broadcaster led the charge.

10. Aside from being overrun by “Action News” prophets from Iowa, the CBC has another problem: the perception that it’s somehow a haven for left-wing subversives. True or not, the CBC was worried enough about its pinko problem to commission an independent audit of its coverage, in which more consultants tried to quantify “left-wing bias” and, presumably using stopwatches, demonstrate that the CBC gives the Conservative government airtime commensurate with the proportion of seats it holds in the House of Commons. Or something like that.

11. The stodgy, neutral, unbiased broadcaster trope is played for jokes before the Sun News team gleefully rips into its targets. But Canada has no Jon Stewart to unravel their ideology and act as a counterweight. Our satirists are toothless and boring, with the notable exception of Jean-René Dufort

12. The Canadian right wing, if you want to call it that, has had five years to get the gloves off. With a majority Conservative government in power, they’re putting on brass knuckles.

13. If a woman needs to get an abortion or a gay couple wants to get married, one minister’s opinion shouldn’t be relevant. …. And when science debunks ideology, reason should be allowed to prevail in determining public policy.

14. Centuries of rational thought and academic tradition, dating back to the Renaissance, is being thrown out the window in favour of an ideology that doesn’t reflect reality.

15. I’m broke, and yet I know I’m rich in love. I’m unemployed and homeless, but I’ve never been more free.

Well Nagata’s blog certainly makes for an interesting read and Nagata’s take on traditional media, Canadian politics and his powerlessness in reporting and initiating change provides us with a unique perspective to consider.

Best of luck Nagata in your journey of personal discovery and future endeavours. Nagata’s full blog can be found at http://bit.ly/rctrlc