SECONDARY ARBITRATION AGREEMENT (for Arbitration and Mediation-Arbitration)
B E T W E E N:
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1.1 This Agreement is a Family Arbitration Agreement made under the Arbitration Act and the Family Law Act. It is effective when:
(a) It has been signed by both parties and witnessed; and(b) The Arbitrator has signed the Certificate of Arbitrator in the form attached.
1.2 The Arbitrator for this Arbitration is 1.3 The Certificate of Arbitrator appended to this Agreement is part of this Agreement.1.4 This Agreement may be signed in counterparts.1.5 The parties will sign any applicable terms for Online Arbitration in the event that the parties and the Arbitrator choose to conduct their Arbitration using online technology, in whole or in part, and those terms shall form part of this Agreement.
2.1 The parties waive any right to further litigate the issues listed in paragraph 4.1 below in court, pursuant to the Family Law Act, the Divorce Act, or any other statute or law, subject to the right of appeal and rights under the Arbitration Act and the Family Law Act as set out below.2.2 Nothing in this Agreement impairs any enforcement rights that a party may have through the courts or otherwise.2.3 On application by either party and subject to the court’s discretion, the operative terms of this Agreement may be incorporated into a consent court order.
3.1 In this agreement:
(a) “Party-1” means who is one of the parties to this agreement;(b) “Party-2” means who is one of the parties to this agreement;(c) “party” or “parties” means Party-1 or Party-2 or Party-1 and Party-2 collectively;(d) “property” has the same meaning as used in the Family Law Act;(e) “Arbitration Act” means the Arbitration Act, 1991, S.O., 1991, c.17, as am. S.O. 2006, c. 1, s.1; 2006, c. 19, Sched. C, s. 1(1);(f) “Child and Family Services Act “ means Child and Family Services Act R.S.O. 1990, c. C.11(g) “Children’s Law Reform Act” means the Children's Law Reform Act, R.S.O.1990, c. C.12;(h) “Divorce Act” means the Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, as amended;(i) “Family Law Act” means the Family Law Act, R.S.O. 1990, c. F.3, as am. S.O. 2006, c. 1, s.5; 2006, c. 19, Sched. B, s. 9, Sched. C, s. 1(1), (2), (4);
3.2 To the extent permitted by law, an Act of the legislature or parliament referred to by name, whether or not it is defined in paragraph 3.1 above, will mean that Act in force as of the date of the signing of this Agreement. In the event that this provision invalidates the operation of any of the other provisions of this Agreement at the time they are sought to be enforced, then the Act referred to will be the one in force at the material time and will include any amendment or successor Act.
4.1 The issues submitted for determination are in accordance with the provisions of theparties’ (check one):
o Separation Agreement dated (Date) o Court Order dated (Date) o Arbitration Award dated (Date) , as attached to this agreement.
For further particularity, the relevant paragraphs of the Separation Agreement, Court Order or Arbitration Award are:
5.1 The proceedings under this Agreement and the record thereof shall be private and confidential, except as may be necessary to implement or to enforce the Arbitrator's award, and subject to their being produced in proceedings for judicial review, or appeal, or as required by law. The parties, their counsel and shall not disclose any information about the parties, the arbitration or the screening for power imbalances or domestic violence to anyone, except as required by law.5.2 In the case of mediation-arbitration, the parties consent to meeting privately with each of them prior to the mediation for the purpose of conducting screening/intake meetings, notwithstanding that she may later act as their arbitrator. The parties specifically waive any claim that such intake/screening meetings violate their rights of fairness, equity or due process under the Arbitration Act.5.3 The parties agree that the screening process, and the notes created by the person who conducted the screening (either or by a third-party screener), (“the screening notes”) shall remain confidential between each party and the person who conducted the screening, except required by law. The screening notes shall not be disclosed to anyone for any purpose without a court order. The parties may each, at their option, authorize their respective lawyers to speak with the person who conducted the screening.5.4 If the parties are to be screened by a third party screener, they shall sign the Consent to Third Party Screening attached to this Agreement and shall each meet separately and confidentially with a Third Party Screener designated by .5.5 Notwithstanding 5.1 above, the parties agree that ’s notes, including her notes from any screening process, and file prepared before, during and after the Arbitration hearing remain the personal property of the arbitrator, whether or not they may be considered to be part of the “record” of the arbitration. Neither party shall request the arbitrator to produce her notes or file, whether or not there is a court reporter present at the hearing.5.6 The parties acknowledge and agree that ’s legal obligations todisclose may include:
(a) Filing a report about the award with the Attorney General in accordance with the Regulation under the Arbitration Act, 1991;(b) Reporting a child in need of protection in accordance with section 72 of the Child and Family Services Act;(c) Where she believes upon reasonable grounds that there is an imminent risk to an identifiable person or group of death or serious bodily or psychological harm, disclosing such confidential information that is required in the circumstances to prevent such death or harm.
6.1 The arbitration shall be conducted in accordance with: (choose either (i) or (ii)) Text
7.1 At the request of the parties, may act as a Mediator in this matter. The parties agree that is not disqualified from adjudicating any or all issues because she has acted as a Mediator in an attempt to resolve the issues before her. The parties specifically waive section 35 of the Arbitration Act. The parties agree that any mediation decisions are settlement negotiations and that disclosures made during the mediation discussions are inadmissible in the arbitration and in any future litigation or arbitration. The parties agree not to subpoena or otherwise require to testify regarding the mediation discussions or to produce records or notes of the mediation discussions in any future proceedings. No transcripts shall be kept of the mediation discussions.7.2 The parties agree that the mediation process will be governed by the Agreement to Mediate, which forms a part of this Agreement.
8.1 The arbitration shall take place at the dates and times to be set by in consultation with the parties (and their counsel, if applicable).8.2 The procedure for the arbitration shall be determined by in consultation with the parties (and their counsel, if applicable). will require the parties and counsel to comply with the Standard Arbitration Procedures set out at the end of this Agreement along with any other procedures she may deem appropriate.8.3 If a hearing is conducted, it may be conducted in person, electronically, by telephone, by teleconference, by written submissions or by any other procedure which shall be determined by in consultation with the parties (and their counsel, if applicable).8.4 may determine a timetable for the delivery of briefs, financial disclosure and other documents.8.5 may deliver notices, awards or other communications to the parties via ordinary mail, fax or e-mail.8.6 If a hearing is held and unless the parties agree otherwise:
(a) All witnesses shall be sworn under oath or affirmed and shall be subject to cross-examination and re-examination, except that may direct that some or all of the evidence be given by affidavit in such manner as she may direct; and(b) All usual rules for the admissibility of evidence in court proceedings shall apply as amended by the Arbitration Act, the Family Law Rules and the Rules of Civil Procedure, where applicable.
8.7 The parties agree: (Select one)
8.8 may convene a pre-arbitration conference to determine:
(a) The issues for arbitration;(b) The documents to be provided prior to the commencement of the arbitration;(c) The order of presentation of evidence;(d) The names, addresses and telephone numbers of witnesses to be called and a synopsis of their evidence;(e) A timetable for pre-arbitration events, including the exchange of expert reports, the delivery of opening statements, the exchange of document briefs and questioning, if required;(f) Estimates of the time required for the arbitration;(g) Any physical arrangements necessary for the attendance of parties or witnesses; and(h) Any issues arising out of the results of the screening.
9.1 The parties specifically authorize to determine the necessity of retaining professional(s) to provide expert opinion(s) respecting any outstanding issues(s) and to retain such professional(s) as he deems appropriate.9.2 The parties agree to contribute to the fees of the expert(s) in theamounts or proportions determined by and authorize to include these fees as a disbursement on his or her account to the parties.
10.1 Neither party may unilaterally withdraw from this Agreement. However, the partiesmay jointly terminate this Agreement by their written agreement. Subject to paragraph 11.2, the Arbitrator shall proceed with an arbitration as provided for in this Agreement notwithstanding that one of the parties no longer wants to participate in the arbitration.10.2 may at any time resign from his or her appointment as arbitrator by providing written notice of her resignation to the parties.10.3 In the event that ’s appointment is terminated, and the parties are unable to agree on a replacement, a court of competent jurisdiction shall appoint a replacement arbitrator on either party’s application to the court.10.4 In the event that ’s appointment is terminated, the parties agree that any interim or interlocutory award(s) made by will continue to bind the parties and will continue in full force and effect as the basis for the continuation of the arbitration with the replacement arbitrator.
11.1 After the evidence has been received and submissions on the law have been made, shall deliver an award on all issues submitted for determination.
12.1 Any Award may be appealed as follows: (choose either (a) or (b))
13.1 Subject to the appeal remedies and rights to apply to set aside ’s Award under sections 45 and 46, respectively, of the Arbitration Act and subject to the other applicable provisions of the Arbitration Act, and the Family Law Act, all awards of the Arbitrator shall be binding upon the parties. Any temporary, interim or final award may be incorporated into a consent order of the Ontario Superior Court of Justice. Either party may apply for the enforcement of any award under section 59.8(5)(a) of the Family Law Act.13.2 Upon the request of either party, shall issue an arbitral award incorporating the terms of any agreement reached by the parties.
14.1 ’s fees shall be charged on an hourly basis, in accordance with the Fee Schedule then in effect, for the arbitration hearing, any pre-arbitration conference, interim arbitration, preliminary meetings, mediation, arrangements, preparation for the hearing, preparation of an award and any other services pursuant to this Agreement. 14.2 Each party shall provide with a retainer of $ , with this retainer to be refreshed from time to time as she may direct.14.3 In the event that one of the parties fails or refuses to pay to his/her share of ’s fees, disbursement or retainer accounts, may accept payment of the defaulting party’s share from the other party and exercise her discretion regarding costs to require the defaulting party to reimburse the other party the amount of such payment.14.4 is empowered to order interim fees and disbursements of the arbitration, including his/her retainer, fees and/or disbursements, on notice to the parties following receipt of submissions if either party wishes.14.5 may withhold his/her award until all outstanding fees, disbursements, or retainers have been paid.
15.1 The parties hereby waive any claim or right of action against arising out of these proceedings.
16.1 Each of the terms of this agreement are severable from the others and willsurvive the invalidity or unenforceability of any other term of this agreement.
Dated this of 20 .
Witness Party - 1
Party - 1
Witness Party -2
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Document Name: SECONDARY ARBITRATION AGREEMENT (for Arbitration and Mediation-Arbitration)
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