Family Statute Law Amendment Act, 2006 Bryant, Hon. Michael Attorney General — Bill 27 (38th Parliament, 2nd Session)

Bill 27, 38-2

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Bill 27, Family Statute Law Amendment Act, 2006

Bryant, Hon. Michael Attorney General

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[38] Bill 27 Royal Assent (PDF)

Bill 27 2006

An Act to amend

the Arbitration Act, 1991,

the Child and Family Services Act

and the Family Law Act

in connection with family arbitration

and related matters, and to amend the

Children's Law Reform Act

in connection with the matters

to be considered by the court

in dealing with applications

for custody and access

Note: This Act amends or repeals more than one Act. For the legislative history of these Acts, see Public Statutes - Detailed Legislative History on

www.e-Laws.gov.on.ca .

Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:

Arbitration Act, 1991

(1) Section 1 of the Arbitration Act, 1991 is amended by adding the following

definitions:

"family arbitration" means an arbitration that,

(

a) deals with matters that could be dealt with in a marriage contract, separation agreement, cohabitation agreement or paternity agreement under

Part IV of the Family Law Act, and

(

b) is conducted exclusively in accordance with the law of Ontario or of another Canadian jurisdiction; ("arbitrage familial")

"family arbitration agreement" and "family arbitration award" have meanings that correspond to the meaning of "family arbitration". ("convention d'arbitrage familial", "sentence d'arbitrage familial")

(2) The Act is amended by adding the following sections:

Family arbitrations, agreements and awards

2.1

(1) Family arbitrations, family arbitration agreements and family arbitration awards are governed by this Act and by the Family Law Act .

Conflict

(2) In the event of conflict between this Act and the Family Law Act, the Family Law Act prevails.

Other third-party decision-making processes in family matters

2.2

(1) When a decision about a matter described in clause (

a) of the definition of "family arbitration" in

section 1 is made by a third person in a process that is not conducted exclusively in accordance

with the law of Ontario or of another Canadian jurisdiction,

(

a) the process is not a family arbitration; and

(

b) the decision is not a family arbitration award and has no legal effect.

Advice

(2) Nothing in this

section restricts a person's right to obtain advice from another person.

(3) Section 3 of the Act is repealed and the following substituted:

Contracting out

3. The parties to an arbitration agreement may agree, expressly or by implication, to vary or exclude any provision of this Act except the following:

1. In the case of an arbitration agreement other than a family arbitration agreement,

i. subsection 5 (4) (" Scott v. Avery " clauses),

ii.

section 19 (equality and fairness),

iii.

section 39 (extension of time limits),

iv.

section 46 (setting aside award),

section 48 (declaration of invalidity of arbitration),

vi.

section 50 (enforcement of award).

2. In the case of a family arbitration agreement,

i. the provisions listed in subparagraphs 1 i to vi,

ii. subsection 4 (2) (no deemed waiver of right to object),

iii.

section 31 (application of law and equity),

iv. subsections 32 (3) and (4) (substantive law of Ontario or other Canadian jurisdiction), and

section 45 (appeals).

(4) Section 4 of the Act is amended by adding the following subsection:

Exception, family arbitrations

(2) Subsection (1) does not apply to a family arbitration.

(5) Section 32 of the Act is amended by adding the following subsections:

Exception, family arbitration

(3) Subsections (1) and (2) do not apply to a family arbitration.

Same

(4) In a family arbitration, the arbitral tribunal shall apply the substantive law of Ontario, unless the parties expressly designate the substantive law of another Canadian jurisdiction, in which case that substantive law shall be

applied.

(6) Section 45 of the Act is amended by adding the following subsection:

Family arbitration award

(6) Any appeal of a family arbitration award lies to,

(

a) the Family Court, in the areas where it has jurisdiction under subsection 21.1 (4) of the Courts of Justice Act ;

(

b) the Superior Court of Justice, in the rest of Ontario.

(7) Subsection 46 (1) of the Act is amended by adding the following paragraph:

10. The award is a family arbitration award that is not enforceable under the Family Law Act.

(8) Subsection 50 (3) of the Act is amended by striking out "or" at the end of clause (b), by adding "or" at the end of clause (c), and by adding the following clause:

(

d) the award is a family arbitration award .

(9) Subsection 50 (4) of the Act is amended by striking out "or" at the end of clause (c), by adding "or" at the end of clause (d), and by adding the following clause:

(

e) the award is a family arbitration award.

(10) The Act is amended by adding the following section:

Family arbitration awards

50.1 Family arbitration awards are enforceable only under the Family Law Act .

(11) The Act is amended by adding the following section:

Regulations

58. The Lieutenant Governor in Council may make regulations,

(

a) requiring that every family arbitration agreement contain specified standard provisions;

(

b) requiring that every arbitrator who conducts a family arbitration be a member of a specified dispute resolution organization or of a specified class of members of the organization;

(

c) requiring every arbitrator who conducts a family arbitration to provide specified information about the award, not including the names of the parties or any other identifying information, to a specified person;

(

d) requiring any arbitrator who conducts a family arbitration to have received training, approved by the Attorney General, that includes training in screening parties for power imbalances and domestic violence;

(

e) requiring that every arbitrator who conducts a family arbitration shall,

(

i) ensure that the parties are separately screened for power imbalances and domestic violence, by someone other than the arbitrator, and

(ii) review and consider the results of the screening before and during the family arbitration;

(

f) requiring every arbitrator who conducts a family arbitration to create a record of the arbitration containing the specified matters, to keep the record for the specified period and to protect the confidentiality of the record;

(

g) specifying standard provisions for the purpose of clause (a), dispute resolution organizations and classes for the purpose of clause (b), information for the purpose of clause (c), persons for the purpose of clause (c), matters for the

purpose of clause (

f) and a period for the purpose of clause (f).

Child and Family Services Act

2. Clause 72 (5) (

b) of the Child and Family Services Act is repealed and the following substituted:

(

b) a teacher, school principal, social worker, family counsellor, operator or employee of a day nursery and youth and recreation worker;

(b.1) a religious official, including a priest, a rabbi and a member of the clergy;

(b.2) a mediator and an arbitrator;

Children's Law Reform Act

(1) Section 24 of the Children's Law Reform Act is repealed and the following substituted:

Merits of application for custody or access

(1) The merits of an application under this

Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2),

(3) and (4).

Best interests of child

(2) The court shall consider all the child's needs and circumstances, including,

(

a) the love, affection and emotional ties between the child and,

(

i) each person entitled to or claiming custody of or access to the child,

(ii) other members of the child's family who reside with the child, and

(iii) persons involved in the child's care and upbringing;

(

b) the child's views and preferences, if they can reasonably be ascertained;

(

c) the length of time the child has lived in a stable home environment;

(

d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(

e) any plans proposed for the child's care and upbringing;

(

f) the permanence and stability of the family unit with which it is proposed that the child will live;

(

g) the ability of each person applying for custody of or access to the child to act as a parent; and

(

h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.

Past conduct

(3) A person's past conduct shall be considered only,

(

a) in accordance with subsection (4); or

(

b) if the court is satisfied that the conduct is otherwise relevant to the person's ability to act as a parent.

Violence and abuse

(4) In assessing a person's ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,

(

a) his or her spouse;

(

b) a parent of the child to whom the application relates;

(

c) a member of the person's household; or

(

d) any child.

Same

(5) For the purposes of subsection (4), anything done in self-defence or to protect another person shall not be considered violence or abuse.

(2) Section 78 of the Act is repealed.

Courts of Justice Act

(1) Paragraph 2 of the

Schedule to

section 21.8 of the Courts of Justice Act is amended by striking out "separation agreement or paternity agreement" and substituting "separation agreement, paternity

agreement, family arbitration agreement or family arbitration award".

(2) The

Schedule to

section 21.8 of the Act is amended by adding the following paragraph:

5. Appeals of family arbitration awards under the Arbitration Act, 1991 .

Family Law Act

5. (1) Subsection 33 (4) of the Family Law Act is amended,

(

a) by striking out "or paternity agreement" and "or agreement" in the portion before clause (a); and

(

b) by striking out "or agreement" in clause (c).

(2) Subsection 35 (1) of the Act is amended,

(

a) by striking out "or paternity agreement"; and

(

b) by striking out "contract or agreement" wherever it appears and substituting in each case "contract".

(3) Subsection 35 (2) of the Act is amended by striking out "or agreement" in the portion before clause (a).

(4) Subsection 35 (3) of the Act is amended by striking out "or agreement".

(5) Subsection 35 (5) of the Act is amended by striking out "and agreements".

(6) The definition of "domestic contract" in

section 51 of the Act is repealed and the following substituted:

"domestic contract" means a marriage contract, separation agreement, cohabitation agreement, paternity agreement or family arbitration agreement; ("contrat familial")

(7) Section 51 of the Act is amended by adding the following

definitions:

"family arbitration" means an arbitration that,

(

a) deals with matters that could be dealt with in a marriage contract, separation agreement, cohabitation agreement or paternity agreement under this Part, and

(

b) is conducted exclusively in accordance with the law of Ontario or of another Canadian jurisdiction; ("arbitrage familial")

"family arbitration agreement" and "family arbitration award" have meanings that correspond to the meaning of "family arbitration"; ("convention d'arbitrage familial", "sentence d'arbitrage familial")

(8) Subsection 56 (1.1) of the Act is amended by striking out "or paternity agreement" and "or agreement".

(9) Section 59 of the Act is amended by adding the following subsection:

Transitional provision

(6) A paternity agreement that is made before the day

section 4 of the Family Statute Law Amendment Act, 2006 comes into force is not invalid for the reason only that it does not comply with subsection 55 (1).

Document details

Collection	Ontario — Bills
Citation	Bill 27, 38-2
Type	bill
Volume / chapter	p38 s2 bill 27 html
Language	en
Format	html
Source	PROVINCIAL
Identifier	6d51f14341278992fc0664a573de6136d526810c

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