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Does Arbitration have to resemble Court? Nope…

For the process to be valid, must arbitration in family law conform strictly to the strictures of the court process? According to a recent decision from the Superior Court of Justice in Ontario, the answer is a qualified no.

Recently, the SCJ heard the appeal in Kroupis-Yanovski v. Yanovski, an appeal brought by one of the parties to an arbitrated family law matter who took issue with the arbitrator selecting the opposing party’s settlement offer. The parties to the arbitration had allowed the arbitrator to proceed via  a “final offer selection,” a process whereby both parties submit a final offer to resolves a matter, and the arbitrator selects one of the offers. While in some instances, offers are severable, meaning that certain aspects can be accepted while certain others are rejected, in this case the parties proposing settlements were not agreeable to this being the case.

The Appellant’s primary argument was that because the arbitration process did not involve an oral hearing, sworn testimony or an opportunity for cross examination, it was not in keeping with the laws of Ontario.

As Justice Herman of the Superior Court frames it, “the requirement that an arbitration must comply with Ontario law and Canadian law does not mean that the arbitration process must mirror the court process” and that while an arbitrator may have powers of a Superior Court judge, that does not mean that an arbitration must be conducted in the same manner as a court proceeding, with an oral hearing, sworn testimony, and cross examination. To require same of arbitration would, in the findings of the court, mean that there would be no advantage to arbitration, which is often sought because of its efficiency as concerns time and cost.

In reaching its decision, the court considered that each party had agreed to the process and had the benefit of legal counsel, and further considered that the Appellant had refused to alter the process (i.e. make his offer open  to a “pick and choose” approach by the arbitrator) when he had been given the opportunity to so do.

~prepared by Annie Yektaeian