“Case law diverges on the issue of whether a private agreement between the parties to arbitrate future disputes that does not, itself, constitute a family arbitration agreement may be enforced by a subsequent court order. In Giddings v. Giddings, 2019 ONSC 7203, Justice Gray relied on the contractual obligation of good faith contractual performance, to enforce an agreement that took the form of minutes of settlement that were intended to be final but had not been made into a court order, and directed the parties to execute a formal, enforceable family law arbitration agreement.
In Magotiaux v. Stanton, 2020 ONSC 4049, Justice Mackinnon ruled that an interim parenting agreement was not a bar to a proceeding in court, stating at paras. 6, 7 and 8:
[6] … I conclude that the Interim Parenting Agreement is not a bar to the applicant proceeding in court and that the stay motion should be dismissed. Parties need to ensure that their agreement complies with the necessary formalities required by statute and regulation. Where the legislator has mandated express terms for family arbitration agreements the court may not imply them.
[7] The situation might be different if the parties had expressly undertaken in their agreement to execute an arbitration agreement that complies with the governing Act and Regulation. In that situation, the court might order the party in breach to comply with their undertaking. The Interim Parenting Agreement does not include such an express provision.
[8] Prudence dictates that family litigants wishing to provide for a potential future arbitration should append a detailed family arbitration agreement containing the mandatory terms to their settlement document and should agree to complete and execute the agreement in the form attached, at the appropriate time.
At paras. 22 and 30 in Magotiaux, Mackinnon J. distinguished Giddings from the case before her, as follows:
[22] The agreement in Giddings specified that if the equalization issue was not resolved it would be arbitrated by a named arbitrator, that the parties would proceed to domestic violence screening and thereafter execute an arbitration agreement with the arbitrator to provide him with arbitral power. The court relied on this provision to rule that the recalcitrant party was required to execute a family arbitration agreement as he had agreed to do and in accordance with his obligation of good faith contractual performance.
…
[30] … I was not persuaded that case law provided a basis on which the court could read in the mandatory requirements to the Interim Parenting Agreement or imply a term to enter into a compliant arbitration agreement to give effect to its dispute resolution clause. I conclude that the Interim Parenting Agreement does not comply with the Regulation and the stay should be denied.
In Moncur, Justice Laliberte described this area of the law as unsettled, however, there does not appear to be divergent case law on the point of whether the court may enforce its own order by requiring parties to execute a compliant family law arbitration agreement.”
Interesting https://el9nou.cat/osona-ripolles/opinio/que-es-planti-manlleu/