Difference between revisions of "Family Law Arbitration"

Arbitration has rarely used been in family law matters in British Columbia, probably because most lawyers figured that if they have to have somebody impose a decision in a case, it might as well be a judge. In British Columbia, arbitration was most often used in a labour law context; in other jurisdictions, such as Ontario in particular, the arbitration of family law disputes is commonplace. The new ''Family Law Act'', however, makes a number of changes to the provincial law that improve the usefulness of arbitration in family law disputes.

#it allows a couple to hand-pick the particular person who will make decisions about the issues they cannot agree on, which means that they might pick an arbitrator who has a special expertise in, for example, the care of children, tax problems or property issues;

#it allows the couple to pick the particular rules that will apply to the hearing and decision-making process;

#the arbitration process is private and closed to the public; and,

===The Arbitration Process===

The arbitration of family law disputes in British Columbia is governed by the provincial ''Arbitration Act'', formerly known as the ''Commercial Arbitration Act''. The highlights of the act are these.

===Faith-Based Arbitration===

This means, for example, that child support must be paid to the person who has the child most of the time by the person who has the child for the least amount of time, and the amount that person pays cannot be too different from what the Child Support Guidelines require.

===Parenting Coordination===

The ''Arbitration Act'' also applies to parenting coordination. In this dispute resolution process, the arbitrator, called a ''parenting coordinator'', tries to first settle a parenting dispute through a settlement process like mediation. If the parents cannot find consensus, the parenting coordinator acts sort of like an arbitrator and makes a written decision, called a ''determination'', resolving the dispute. The parenting coordinator's authority to resolve these dispute comes from the arbitration agreement the parents will sign, in this case called a parenting coordination agreement.

As with faith-based arbitration, or any other kind of family law arbitration for that matter, the parenting coordinator cannot make determinations that are contrary to the law in British Columbia, including the federal ''Divorce Act'' and the provincial ''Family Law Act''. The court will not uphold awards that are contrary to the law in this province.  

Parenting coordinators are also restricted in the scope of the things they can make decisions about. Under s. 6(3) and (4)(a)(ix) of the Family Law Act Regulation, parenting coordinators can make determinations about parenting arrangements, contact with a child and other issues agreed to by the parties and the parenting coordinator. However, regardless of whatever the parties and the parenting coordinator may have agreed to, a parenting coordinator cannot make decisions about:

#subjects that excluded by an order or a parenting coordination agreement;

#changes to the guardianship of a child;

#changes to the allocation of parental responsibilities;

#giving parenting time or contact to a person who does not have parenting time or contact;

#substantial changes to parenting time or contact; or,

#the relocation of a child.

==When to Use Arbitration==

#they wish the laws of their religion to apply to the proceedings;

#their positions are too far apart to make negotiation or mediation a reasonable choice and must have a decision made for them, but don't want to go to the expense, anxiety and acrimony typically involved in litigation;

#they want to resolve their dispute discretely and privately, and don't want to risk things being made public;

#the issues are complex and require a decision-maker who is a specialist in the area; or,

#they want their dispute resolved more quickly than the court schedule will allow.

==How to Find a Family Law Arbitrator==

*The Family Law Arbitrators Group

*The Arbitrators Association of British Columbia

*The BC Arbitration & Mediation Institute  

As an alternative, you could try calling a family law lawyer or two and ask if he or she knows and recommend anyone who arbitrates family law disputes. Finally, you could call the Lawyer Referral Service. Although the service can't recommend one family law arbitrator over another, they will be able to give you some names.

==Page Resources, Links and Downloads==

* <span style="color: red;">bulleted list of legislation referred to in page</span>

Divorce Act, Family Law Act, Family Law Act Regulation, Arbitration Act

* <span style="color: red;">bulleted list of linked external websites referred to in page</span>

BC Parenting coordinators roster society, BCAMI, Arbitrators Association, LRS,