Since the province introduced legislation governing family arbitration a few years ago, many have wondered whether religious arbitration processes will survive.
The Jewish Beis Din, a rabbinical court, has operated in Ontario for many years. The amendments to the Arbitration Act were intended to prevent the application of all religious law in Ontario.
An interesting recent case has decided that arbitrations that that started before the amendments took effect, if conducted fairly, will withstand court challenges.
In this case (Cawthorpe v Cawthorpe), Justice Gilmore ruled that the arbitration agreement that was entered into in 2006 (before the amendments were passed) was legally enforceable. The husband, who was unhappy with the decisions of the Beis Din, was trying to overturn them on the basis that the process did not comply with the amendments, but the court said that the amendments did not affect the pre-existing process.
Justice Gilmore also found that there was no unfairness in the arbitration process used by the Beis Din. The husband was not denied independent legal advice; he had the opportunity to call his own witnesses; he was not coerced into entering the arbitration process (in fact it had been his idea); and he did not seek to appeal the decisions within the time frames allowed under the Arbitration Act.
In other words, the decisions were made in accordance with the principles of natural justice and the husband had to comply with them.
Many in the field had assumed that even pre-existing arbitration processes could not produce legally enforceable awards if they did not comply with the amendments to the Arbitration Act. It will be interesting to see if this case is applied in other circumstances.