Introduction
The Ontario Bar Association (“OBA”) appreciates the opportunity to provide feedback to the Ministry of the Attorney General (“MAG”) on the required training for family law arbitrators. We provide comments to help the Ministry better understand how to update training requirements regarding screening for intimate partner violence (IPV) and power imbalances in the context of family arbitrations.
Ontario Bar Association
Established in 1907, the OBA is the largest and most diverse volunteer lawyer association in Ontario, with close to 16,000 members, practicing in every area of law in every region of the province. Each year, through the work of our 40 practice sections, the OBA provides advice to assist legislators and other key decision-makers in the interests of both the profession and the public and we deliver over 325 in-person and online professional development programs to an audience of over 20,000 lawyers, judges, students, and professors.
This submission was prepared by members of the OBA Family Law section, in consultation with the OBA Women Lawyers Forum. These members represent a wide range of clients within the family justice system, both in litigation and various alternative dispute resolution processes. They have significant expertise in provincial and federal family law legislation, caselaw, and applicable court rules across the full spectrum of family law issues.
Comments & Recommendations
The OBA applauds the Ministry for their commitment to ensure every arbitrator who conducts family arbitration receives approved training, including screening for domestic violence/IPV, coercive control, and power imbalances. To support such commitment, we’ve
provided feedback on several questions provided in the Engagement Paper, for your consideration.
Reasonably Expeditious Timeline
Currently, arbitrators are to complete mandatory screening training within one week. However, the Ministry is concerned that this requirement does not reflect the online and modular nature of many post-pandemic training programs. As a result, MAG is considering the removal of the existing requirement that at least 14 hours of training be completed within a single week.
We agree with the Ministry and do not believe the one-week timeline reflects the realities faced by legal professionals who often act as arbitrators and balance significant workload demands alongside fixed court dates, mediations, and other professional obligations. Moreover, a short timeline may unfairly impact individuals who require longer due to illness, disability, caregiving, obligations, or limited economic means.
That said, any revised timeline should be cognizant of the importance of completing the training in a manner that is effective. If training is spread over too long a period, participants risk forgetting important concepts. Accordingly, we recommend that participants be required to complete training within a reasonably expeditious timeline, with more days permitted for completion (i.e., 30 – 90 days). This approach would provide flexibility while ensuring that the training is completed in a timeframe that supports retention and engagement.
We also recommend that the Ministry reconsider the assessments within the training materials, particularly given the accessibility of AI tools that can generate answers on behalf of trainees. Thus, consideration should be given to incorporating timed assessments in which responses cannot be changed once selected as well as incorporating programs where screens are locked during the assessment. Such measures would help improve the evaluation of
trainee understanding and readiness to conduct arbitration. Similarly, trainees should have to provide a certificate/proof of assessment to the Ministry immediately after finishing the training.
Training Should Advance Screening Efforts and Legal Understanding
Page four of the Engagement Paper lists several contents of training and queries whether they should be mandatory. These factors include but are not limited to: how to screen for abuse and power imbalance; the use of one or more tools for screening, including in an arbitration context; and how to develop options for using arbitration where it would be appropriate to do so with safeguards in place.
We are of the view that all the factors, particularly those relating to screening, should be mandatory. Family arbitration differs from court proceedings in that it is a private process with fewer procedural safeguards than those available through the court system.
Accordingly, arbitrators must be particularly attentive to safety issues, available resources, and be equipped to appropriately screen for circumstances involving family violence, power imbalances, or other situations in which arbitration may not be suitable.
Moreover, the list of screening tools set out on pages four to five should be updated. There are more recent tools that would be more sensitive to coercive control. For instance, MASIC- S- Mediator’s Assessment of Safety Issues and Concerns; E- Safer; iDetermine's safe relationship quiz; Battered Women’s Justice Project, Initial Domestic Abuse Screening Guide; The Duluth Model – Power and Control Wheel; The Women’s Experience with Battering Scale (WEB); Barbra Schlifer Commemorative Clinic, Intimate Partner Violence Risk Identification and Assessment Framework I: Risk Screening: and, Department of Justice Toolkit- HELP. These tools provide important guidance and support for arbitrators in identifying circumstances that may impact the appropriateness, fairness, or safety of the arbitration process.
Finally, there is concern over arbitrators who lack legal training. Notably, the Ministry’s website suggests specific training for “non-legal professionals” to learn how to be an arbitrator, indicating that such training may “increase the chances that the arbitration will be correct and helpful to the parties” and help arbitrators “avoid serious mistakes that may cause claims for negligence.”
We have concerns over the optional nature of this training. A strong legal foundation is essential for effective arbitration, particularly in the family law context, where errors in legal interpretation or application can have significant consequences for families and children. Thus, given the binding nature of arbitration, and the significant rights at stake, minimum legal competency standards in family law should be a mandatory prerequisite for arbitrators.