Should I go to court, mediate or arbitrate my family dispute in Ontario?
In court, a judge decides, and court orders are binding and enforceable. In mediation, a neutral mediator helps you and your spouse reach your own agreement but makes no binding decisions. In arbitration, you both choose a private arbitrator whose decision, called an award, binds you like a court order. Many families use a combination of three, for example, mediation for parenting, arbitration for a single money issue, and court for the divorce itself.
Key points
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Only Superior Court of Justice or Family Court can grant a divorce.
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Mediation and arbitration are voluntary: both partners must agree to use them. Either person can start a court case alone.
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Mediation can commence before a court case or at any point during one.
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An arbitration award can be enforced in court only if each person obtained independent legal advice from a lawyer before arbitration began.
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In a divorce case, the parties must try to resolve their issues out of court where that is appropriate.
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Where there is family violence or a serious power imbalance, mediation or arbitration may not be safe or fair, and both processes screen for it first.
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How do court, mediation and arbitration compare?
The biggest differences are who makes the decision and whether you both have to agree to take part.
In court, a judge decides, and either of you can start a case without the other's agreement. Mediation and arbitration both need you both to agree to participate. A mediator decides nothing: you and your spouse reach your own agreement with the help of mediator. An arbitrator who you both choose decides for you, much as a judge would.
A court order binds you both, and so does an arbitration award, which a court can enforce. A mediated settlement binds you only once you sign it as a written agreement, ideally after each of you gets independent legal advice. Whichever route you use for the other issues, only a court can grant the divorce itself. Challenges differ as well: a court decision can be appealed to a higher court, an arbitration award only on limited grounds and with short deadlines (see below), and a signed mediated agreement can be set aside only on limited grounds.
Court is the most public route: courtrooms and filed documents are generally open, though conferences are private. Mediation is closed (confidential) unless you both agree to make it open, and arbitration takes place outside a courtroom on confidentiality terms set in the arbitration agreement. Court also runs on its own schedule, with a separate date for each step, while mediation sessions and arbitration hearings are booked around you, your spouse and the mediator or arbitrator.
Costs build up differently. In court, you pay court fees and legal fees for each contested step. In mediation, the main cost is the mediator's hourly fee, often shared, with subsidized rates for some. In arbitration, you pay the arbitrator, your lawyer, a room and any transcript.
How does a family court case work?
A court case is the only route one person can initiate without the other's consent, and it ends with a trial decision if you do not settle first. Which court hears the case depends on your issues and where you live. In Toronto, both Superior Court of Justice and Ontario Court of Justice have jurisdiction in family law matters, while only the Superior Court can grant a divorce or decide property issues.
The main steps in a court proceeding are:
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Application and answer. One person files and serves an application; the other generally has 30 days to answer and can make claims of their own.
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Mandatory Information Program. Most parties attend a free session within 45 days of the case starting.
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Financial disclosure. Where support or property is claimed, both sides serve sworn financial statements and supporting documents.
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Conferences. A case conference, then a settlement conference, with a judge who helps you narrow the issues and settle. Conference judges usually do not make orders without parties’ consent.
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Trial. If issues remain, a trial management conference prepares the case, and a judge, without a jury, decides at trial.
You can settle at any point, by signing minutes of settlement or asking for a consent order. In an emergency, such as a risk to a child's safety, a judge can hear an urgent motion for a temporary order. If you have already tried mediation and exchanged financial statements, a judge can let you move straight to a combined settlement conference.
How does family mediation work?
Mediation is a negotiation with an assistance of a neutral party. The mediator helps you and your spouse talk through support, property, parenting time and decision-making responsibility, but does not take sides, make decisions or give legal advice. Mediators are usually experienced family lawyers.
A typical mediation runs in four stages:
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Intake and screening. The mediator meets each of you separately to check that you can negotiate safely and on an equal footing and keeps screening throughout.
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Agreement to mediate. You both sign an agreement setting out the issues for mediation, what you will disclose, the schedule, the fees, and whether the mediation is open or closed.
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Financial disclosure. You exchange information on income, property and debts. A court financial statement (Form 13 or 13.1) is a most common template, though you do not file it.
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Sessions. The number depends on the issues and the level of conflict. The mediator writes up what you agree with in a report.
Mediation is closed unless you both agree otherwise. In closed mediation, everything said and shared cannot be used in court, with limited exceptions such as concerns for a child's safety. In open mediation, the mediator can give the court a report on what was and was not resolved.
How does family arbitration work?
Arbitration is a private legal proceeding in which the arbitrator acts like a judge. Each of you presents evidence and argument, and the arbitrator decides the issues you agreed to submit, applying the law. It is less formal, less expensive, and more flexible than court.
Before it starts, several safeguards apply:
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A written arbitration agreement sets out exactly what the arbitrator can decide.
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Independent legal advice. Each of you must get advice from your own lawyer. Without it, the arbitration award cannot be enforced in court.
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Screening. A trained professional interviews each of you separately for domestic violence and power imbalances, and the arbitrator receives the screening report before arbitration begins.
An arbitrator cannot grant a divorce, but can make decisions related to decision-making responsibility and parenting time, support obligations, and property issues.
Since May 1, 2026, the support terms of an award can be filed with the Superior Court of Justice or the Family Court using Form 26D, with both legal advice certificates and the arbitration agreement. Other terms, such as parenting or property, are enforced by a request (Form 32.1), an application, or a motion in an existing case.
What about mediation-arbitration and collaborative law?
Two hybrid routes are worth knowing:
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Mediation-arbitration. You start with mediation; whatever you cannot settle goes to arbitration for a binding decision. Like both of its parts, it is voluntary and needs both parties’ consent.
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Collaborative family law. Each of you has your own lawyer, and everyone signs an agreement not to go to court. If talks fail, you can still go to court, but you must each hire a different lawyer. The Ontario Association of Collaborative Professionals lists collaborative practitioners.
Ordinary lawyer-to-lawyer negotiation is the most common route of all, and it can run alongside any of the others. The free Family dispute resolution Guided Pathway from Community Legal Education Ontario walks you through the options.
Where does a family lawyer fit in each route?
A mediator or arbitrator is a neutral party and cannot advise either of you, so each person still needs their own lawyer at the key points. Lawyers can act for each party, alongside whichever process you choose:
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Before you choose: explaining your rights and obligations, so you know what you would be negotiating or arguing about.
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In mediation: formulating your position, preparing your financial disclosure, advising between and during sessions, and reviewing the draft agreement before you sign it.
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In arbitration: advising on the arbitration agreement, giving the certificate of independent legal advice the law requires, and presenting your case at the hearing.
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In court: representing you from the application through conferences, motions and, if needed, trial, or helping with single steps under a limited-scope retainer.
It is strongly recommended to obtain independent legal advice before and throughout mediation, and Ontario law requires it before arbitration. Our flat-fee Independent Legal Advice service is $699 plus HST.
From practice
Hypothetical example. Any resemblance to a real case is coincidental.
Priya and Daniel separate after twelve years of marriage. They agree the children should split their time between both homes but cannot agree on the details, or on what Daniel's consulting company is worth for equalization.
They try closed mediation first and, over three sessions, settle a parenting schedule. Each takes the draft to their own lawyer before signing. The company value stays stuck, so they sign an arbitration agreement covering that one issue. Each gets a certificate of independent legal advice, an accountant gives evidence, and the arbitrator decides the value in a short private hearing.
With everything settled, the divorce itself still must be decided by court, but as an uncontested application. In a case like this, choosing a route issue by issue, rather than one route for everything, can help keep the dispute contained.
Frequently asked questions
Is mediation mandatory in Ontario? No; mediation is voluntary.
Can an arbitrator grant my divorce? No. Only a court can grant a divorce. An arbitrator can decide other issues, such as parenting, support and property.
Is what we agree on in mediation legally binding? Not until it is put out as a valid domestic contract. Each of you should get advice from your own lawyer before signing.
Can we try mediation after a court case has started? Yes. Mediation can start at any point during a court case, and free on-site mediation is usually available at family courts.
Can I appeal an arbitrator's decision? Only in limited cases, and the deadlines are short: 15 days to ask the court's permission, or 30 days if your agreement allows appeals.
Talk to a family lawyer about common-law separation
Whether you are weighing mediation, have been asked to sign an arbitration agreement, or have been served with court papers, a free 15-minute call is the first step. We will talk through the routes open to you and what to prepare first.
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A free 15-minute phone call to talk through your situation and the next step
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By phone, by video or in person at 5200 Yonge Street, Suite 200, North York
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Independent Legal Advice flat fee $699 plus HST. Full representation at hourly rate, limited-scope retainer for single steps, and Legal Aid Ontario certificates
Book a free 15-minute call about your options · Call 416-858-1320
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Anton Mostovoy, lawyer, licensed by the Law Society of Ontario. Last reviewed: October 12, 2026
This page is general information about Ontario and federal law, not legal advice. Reading it or contacting us does not create a lawyer-client relationship. Laws and court fees change; check the date above.