In the summer of 2024 the Ministry of the Attorney General of Ontario solicited feedback from the NSRLP on a proposal to streamline the process for enforcing a family arbitration award under the Family Law Act.
Below is the official NSRLP response to this request, dated July 18, 2024.
Policy Division
Ministry of the Attorney General
Re: Feedback on proposal to streamline the process for enforcing a family arbitration award under the Family Law Act (FLA)
We wish to thank the Ministry of the Attorney General for including NSRLP in the solicitation of feedback regarding the above-referenced proposal. As part of the NSRLP mandate is to support as well as advocate for self-represented litigants (SRLs) in the civil justice system, we are acutely aware of the challenges and barriers that SRLs face when attempting to represent themselves. Moreover, we recognize that the number of SRLs in family law matters is significant and growing. As such, we welcome proposals seeking to simplify and streamline processes, thereby assisting SRLs in their efforts to resolve family law matters. At the same time, we believe it is important that measures meant to ensure better access to justice for Ontarians take account of SRLs’ unique vulnerabilities when participating in a system that is largely built for and by lawyers, and that moving forward, reforms reflect this reality within the civil justice system: namely, that the civil justice system must contemplate rules and processes that are accessible to non-lawyers as well as lawyers. We hope our comments below reflect these considerations.
Consultation Questions
- Would you/your organization support Ontario making amendments to the FLA to allow parties entitled to the enforcement of a family arbitration award to file the award with the Court, and remove the requirement for a party to file an application or motion? Please explain why or why not.
Response: NSRLP research over the past 10 years has suggested that, generally speaking, SRLs struggle with court processes and procedures. Despite some efforts to make procedures more ‘user-friendly,’ the practical reality is that procedure remains complex and nuanced. The interplay of rules of court, practice directives, and internal court policies that may vary from court to court are extremely difficult for SRLs to navigate. SRLs often miss deadlines, forgo important steps, and suffer worse outcomes in their legal matters due to complex procedure. We also see the benefits of arbitration processes in which a family law matter remains private and may proceed in a more flexible and timely manner. Based on these considerations, we would support amendments to the FLA that work to streamline the process by which a party is able to enforce a family arbitration award. However, streamlining the process ought to take account of certain considerations. First, any such amendment ought to be cognizant of the power imbalance that often exists between self-represented and represented parties. The represented party typically brings more knowledge, resources, and experience (in the form of counsel) to the legal process. In public court proceedings, this may be visible and therefore addressable. However, in private arbitrations (without court oversight), it would be necessary to ensure that any such imbalance can be addressed in a fair and just fashion, and that the SRL is able to adequately represent themselves. Moreover, ensuring that an arbitration award against an SRL (particularly when the opposing party was represented by counsel) is fair and reasonable in the circumstances is crucial to the streamlined process. As discussed below in greater detail, we believe this speaks to the arbitrator’s training, as well as checks and balances that might be built into the administration of the arbitration.
- If supportive of the proposal in general, what are your/your organizations’ views with respect to the scope of these possible amendments? Please explain.
(a) Should enforcement on filing only be available for awards for spousal and child support made pursuant to the FLA (similar to Manitoba’s approach), or should they apply more generally to all family arbitration awards (similar to British Columbia’s approach)? Why or why not?
Response: We are unfamiliar with the arguments that support Manitoba’s approach to limited enforceability of awards. For many family SRLs, the legal resolution of their matter can often take a significant amount of time. Moreover, we note that even when SRLs start with legal representation, they often eventually run out of money to continue to fund their representation, and therefore become compelled to represent themselves – all the while addressing issues of financial support. As such, we recognize the urgency of having matters of financial support addressed in a timely fashion. However, for reasons elaborated on below, we also believe that the expedited process should be available for all arbitration awards, subject to certain considerations.
(b) If enforcement on filing were limited to spousal and child support awards, should an expedited process apply to other types of family arbitration awards (similar to Manitoba’s approach)?
Response: While there may be reasons for restricting the enforceability by filing requirement to issues of child/spousal support, we believe it is preferable that enforceability by filing apply to all aspects of an award, as the bifurcation of procedures (whereby some elements of an award are enforced on filing and other elements are subject to an application/motion process) could create confusion. Moreover, our concern is that this would add more complexity for SRLs to navigate, as well as likely increase the length of time that it takes an SRL to address their issues and to resolve their family law matter.
- Are there any concerns you/your organization would have should the oversight role of the court be removed in making family arbitration awards enforceable upon filing with the court? Please explain.
Response: Our concerns respecting the removal of oversight relate to the fairness of the underlying arbitration process – namely, whether SRLs are able to represent themselves effectively in a private process (again, particularly when facing an opposing party who is represented by counsel). In this regard, we believe it is important that arbitrators are well-versed in the family law framework (particularly where SRLs lack this knowledge), issues of procedural justice, and an understanding of the challenges faced by SRLs in order to ensure that they are treated fairly. We believe this speaks to more particular training for arbitrators engaging in family arbitrations that involve SRLs.
- If the need for a court application were removed, should the above requirements continue to apply for any arbitration awards that would be enforceable on filing with the court? Are there any that should not apply or any other existing or new requirements that should also apply? For example:
Response: We believe it would be important to ensure that the requirements as listed in the Ministry of the Attorney General’s request for feedback continue to apply in respect of arbitration awards that are enforceable on filing. As discussed below in greater detail, we believe that requiring the filing party to prepare an affidavit would assist in ensuring that these requirements are met. We also suggest that one additional condition might include an acknowledgement from the arbitrator that they have explained the enforceability procedures to the parties either in advance of or at the time that the award is granted.
Providing the means by which a party may challenge the enforceability of an award may assist in ensuring that any benefits associated with the court’s oversight role are accounted for in a stream-lined process. However, the development of any such procedure will also need to contemplate non-lawyer participation, and the associated time, costs, and complexity of an added layer of process. In this regard, such a process should be simple, written in plain language, operationalized through pre-populated forms, and part of the arbitrators’ instruction at completion of the arbitration.
More particularly, in terms of the conditions for enforceability (as per ss. 59.6(1)) of the FLA, we note that the requirement that each party obtain independent legal advice before making the arbitration agreement may be a significant or absolute barrier to enforcement for some SRLs. While we recognize the importance of independent legal advice (particularly where arbitrators are not required to be lawyers), SRLs are more often than not unrepresented because they cannot afford legal representation. As such, if MAG wishes to encourage parties to participate in family law arbitrations, one recommendation might be to provide that parties with income below a certain threshold would be able to access independent legal advice at low or no cost.
(a) Should the proposal account for situations where the award is being appealed or an application to set the award aside or for a declaration of invalidity has been made?
Response: Yes, it would be important to ensure that enforceability may be stayed while there is an appeal of the award pending, or a declaration sought regarding the validity of the arbitration.
(b) Should filing only be available where the award is uncontested or once the timeline to commence an appeal or application to set the award aside has passed?
Response: Yes, the filing route should take account of the appeal timelines to which the arbitration award is subject.
(c ) Should the party filing the award with the court also be required to file an affidavit stating that the award is enforceable and has not been appealed or set aside, similar to the requirements for filing a domestic contract under s. 35 of the FLA?
Response: Yes, the party filing the award ought to be obligated to file an affidavit stating that the award is enforceable (arbitration preconditions were met), and not subject to an appeal or motion to set aside the award. However, given the challenges that SRLs often face in constructing affidavits, it is our recommendation that a standard form affidavit be created that parties can easily populate with the appropriate information.
- In considering this proposal, are there any special considerations the government should be made aware of in the domestic/family violence context associated with this proposal?
Response: While advising on the domestic violence/family violence context is outside the scope of the NSRLP’s expertise, we feel it is important that arbitrators be subject to appropriate training in relation to domestic violence, screening for domestic violence, and appropriate record-keeping. It is also crucial that the training content be kept up-to-date and that there be regular updates and monitoring of the existing training program. Additionally, we believe it is important that any family law reforms be crafted with a view to limiting the opportunities for litigation abuse that can intersect with issues of past domestic violence.
- Are there any other considerations or concerns you/your organization wish to raise in respect of this proposal?
Response: As noted above, we believe that the training of arbitrators is an important element of any reform to the family arbitration regime. In this regard, we believe that it would be important to ensure that arbitrators receive comprehensive training on family law and on the management of dispute resolution processes where there are parties untrained in the law. This will work to ensure that the awards made in family arbitrations are fair, reasonable and enforceable.
Regards,
Jennifer Leitch, JD, LLM, PhD
Executive Director, National Self-Represented Litigants Project