In order to avoid the delays inherent in the court process, and the possibility that the judge hearing the issues might not possess any specialised knowledge of family law, parties can choose to hire an arbitrator instead. An arbitration hearing may be conducted much like a traditional judicial hearing, except that the arbitrator’s time is paid for by the parties themselves. For this reason -although it’s a viable option- arbitration is more likely to be an option for higher net worth individuals who are experiencing a family law problem.
Another significant difference between a judge’s decision and that of an arbitrator is that an arbitrator’s decision may be accorded more deference by an appeal court.
In Murphy v. Murphy, the Ontario Court of Appeal considered an appeal from an arbitrator’s award on retroactive child support. The arbitrator had awarded almost $300,000.00 in retroactive child support, but evidently, in his written reasons, failed to elaborate at length as to the legal basis for this award.
In its decision, released in January, 2015, the court explained that even in instances where it was unclear whether the arbitrator had properly considered the test for awarding retroactive support, deference will be given to the decision of an arbitrator making a support award because the arbitrator was the one who heard the evidence of the parties, he had been jointly selected by the parties, and he had considerable knowledge of family law.
The court referred the matter of the appropriateness of a retroactive child support award back to the arbitrator to decide.