Ontario Superior Court: Burkay V. Walker Secondary Arbitration Clause Binding

• The Ontario Superior Court ruled that secondary arbitration clauses in separation agreements create a binding obligation to arbitrate future disputes.
• In Burkay v. Walker, 2026 ONSC 4744, the court stayed a mother's application to vary a separation agreement, compelling arbitration under s. 7 of the Arbitration Act.
• Compliance with O. Reg. 134/07 for family arbitration is required for the enforceability of an arbitral award, not for the initial validity of the agreement to arbitrate.
• The court reasoned that requiring full regulatory compliance at the drafting stage for future, unknown disputes is impractical and that procedural requirements should not allow parties to avoid their commitment to arbitrate.
• This decision reinforces that lawyers must advise clients that secondary arbitration clauses are binding and that regulatory compliance will be addressed when arbitration is actively pursued.

The Ontario Superior Court recently affirmed the binding nature of secondary arbitration clauses in separation agreements, compelling parties to proceed with arbitration for future disputes rather than allowing a direct application to vary the agreement.

The Ontario Superior Court recently affirmed the binding nature of secondary arbitration clauses in separation agreements, compelling parties to proceed with arbitration for future disputes rather than allowing a direct application to vary the agreement. In the case of Burkay v. Walker, 2026 ONSC 4744, the court issued a stay on a mother's application to modify a separation agreement, directing both parties to undertake the necessary steps to establish a family arbitration agreement in compliance with Ontario's Family Law Act, 1990 (FLA), the Arbitration Act, 1991, and Family Arbitration, O Reg 134/07.

The dispute arose from a relationship that began with cohabitation on April 1, 2019, and included the birth of a child that same year. Following their separation on September 1, 2022, the parties executed a separation agreement on February 2, 2023. This agreement contained a critical dispute resolution clause, mandating negotiation, mediation, or arbitration for any future disagreements. Despite this provision, attempts to resolve subsequent parenting issues proved unsuccessful.

On October 28, 2024, the mother's counsel proposed various resolution avenues, including mediation-arbitration and parenting coordination, to the father. In response, on October 31, 2024, the father requested clarification on the specific issues, the desired variations to the separation agreement, and the factual basis for the mother's position. Subsequently, on December 16, 2024, the mother filed an application to vary the separation agreement. The father countered by moving to stay her application, arguing that the disputes should be resolved through arbitration as stipulated in their agreement's dispute resolution provisions. The Ontario Superior Court of Justice ultimately granted the father's motion, staying the mother's family law application under s. 7 of the Arbitration Act.

Central to the court's decision was its ruling that a secondary arbitration clause can indeed establish a binding obligation to arbitrate future disputes. This interpretation clarifies that such clauses are not merely aspirational but create a firm commitment. The court mandated that the parties take all necessary actions to execute a family arbitration agreement, emphasizing that compliance with O. Reg. 134/07 requirements is essential for the recognition and enforceability of any resulting arbitral award.

The court explicitly stated that finding otherwise would permit parties who have expressly agreed to arbitrate future disputes to evade their commitment. This evasion, the court noted, could occur by citing procedural requirements that could realistically only be met once arbitration was actively being considered or was already underway. This ruling underscores the court's commitment to upholding contractual agreements, particularly those designed to provide a structured path for resolving future family law disagreements.

The Ontario Superior Court provided a detailed rationale for its interpretation, particularly regarding the interplay between the initial agreement to arbitrate and the regulatory compliance outlined in FLA s. 59.6 and O. Reg. 134/07. The court clarified that s. 59.6 of the FLA, which defines secondary arbitration as one conducted in line with a court order, among other things, addresses the enforceability of an arbitral award, not the initial validity of a binding agreement to arbitrate. It held that an otherwise binding agreement to arbitrate would not be rendered invalid simply because the secondary arbitration clause did not incorporate all regulatory requirements during its initial drafting.

Three key reasons underpinned this interpretation. Firstly, the court observed that secondary arbitration clauses typically pertain to future disputes, whose nature is inherently unknown. Requiring parties to identify a specific arbitrator at the time of drafting was deemed neither desirable nor practical, especially given that the Arbitration Act, specifically s. 10, provides a mechanism for appointing an arbitrator if the parties cannot agree. Secondly, the court highlighted that certain regulation-prescribed matters, such as assessing parties' circumstances, relationship dynamics, potential power imbalances, or domestic violence concerns, are more appropriately addressed closer to the arbitration process itself, rather than during the negotiation of a separation agreement. Lastly, the court acknowledged that family law disputes might emerge years after a secondary arbitration clause is negotiated, by which time pertinent statutory and regulatory requirements for family arbitration could have changed, rendering any certifications earned during the agreement's drafting potentially outdated.

This decision, Burkay v. Walker, 2026 ONSC 4744, carries significant implications for the drafting and enforcement of separation agreements in Ontario, particularly concerning secondary arbitration clauses. The ruling firmly establishes that such clauses create a binding obligation to arbitrate future disputes, reinforcing the principle of contractual commitment in family law. Lawyers drafting separation agreements should advise clients that these clauses are enforceable and will likely compel arbitration for subsequent disagreements, even if all regulatory compliance for family arbitration under O Reg 134/07 is not met at the initial drafting stage.

Instead, the court's stance suggests that the focus on O Reg 134/07 family arbitration compliance shifts to the point when a dispute actually arises and arbitration is being initiated. This means legal professionals must be prepared to address these regulatory requirements when disputes emerge, rather than solely relying on their inclusion in the initial separation agreement. The Ontario Superior Court's decision to grant an Arbitration Act s. 7 stay application demonstrates a clear judicial preference for upholding agreed-upon dispute resolution mechanisms, emphasizing the enforceability of separation agreement arbitration clauses.

Lawyers drafting separation agreements in Ontario should advise clients that secondary arbitration clauses are binding and will likely compel arbitration for future disputes. They must be prepared to address regulatory compliance for arbitration when disputes arise, rather than solely at the agreement drafting stage, as the court will enforce the obligation to arbitrate.

Source: Original reporting via Canadian Lawyer