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Difference between revisions of "Family Law Arbitration"
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==Arbitration in British Columbia== | ==Arbitration in British Columbia== | ||
Arbitration has rarely used | Arbitration has rarely been used 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 regions, such as Ontario, 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. | ||
Arbitration has a number of advantages as a way of resolving family law problems: | Arbitration has a number of advantages as a way of resolving family law problems: | ||
*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 result of the process is an award that is just as binding as a court order and is enforceable just like a court order. | |||
As well, it's often faster to arrange a date for an arbitration than for a court hearing. Although short trials of two or three days can be booked within six or eight months, it can take a year or longer to get a date for longer trials because the court is so busy. An arbitration can be booked as soon as everyone has the free time in their calendars. | As well, it's often faster to arrange a date for an arbitration than for a court hearing. Although short trials of two or three days can be booked within six or eight months, it can take a year or longer to get a date for longer trials because the court is so busy. An arbitration can be booked as soon as everyone has the free time in their calendars. | ||
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===The arbitration process=== | ===The arbitration process=== | ||
When a couple agrees to arbitrate their dispute | When a couple agrees to arbitrate their dispute, they first pick their arbitrator and then meet with the arbitrator to discuss the process leading to the arbitration hearing and pick their rules. You can't force someone into arbitration; it has to be voluntary. Most of the time, the rules that people select are the more important parts of the [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/169_2009_00 Supreme Court Family Rules] relating to evidence, experts, and procedure at trial. | ||
Next, the parties will exchange the documents and information that are relevant to their dispute. If child support is an issue, for example, financial statements might be prepared and documents like income tax returns, T4 slips and paystubs might be exchanged. | Next, the parties will exchange the documents and information that are relevant to their dispute. If child support is an issue, for example, financial statements might be prepared and documents like income tax returns, T4 slips and paystubs might be exchanged. | ||
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Once the documents have been exchanged and any reports have been prepared, the parties will attend one or more hearings with their arbitrator. These hearings take place in the arbitrator's office and are usually less formal than court hearings; there can be as much flexibility to the arbitration process as the parties and the arbitrator will agree to. | Once the documents have been exchanged and any reports have been prepared, the parties will attend one or more hearings with their arbitrator. These hearings take place in the arbitrator's office and are usually less formal than court hearings; there can be as much flexibility to the arbitration process as the parties and the arbitrator will agree to. | ||
At these hearings, each party presents their evidence, which may include witnesses who give testimony or may be limited to documents and affidavits. Each party then makes arguments to show the arbitrator why | At these hearings, each party presents their evidence, which may include witnesses who give testimony or may be limited to documents and affidavits. Each party then makes arguments to show the arbitrator why they should make a particular decision. | ||
After the hearing process is over, the arbitrator will provide a written decision, called an ''award'', summarizing the evidence, resolving all of the issues, and explaining why the arbitrator resolved the issues in the way | After the hearing process is over, the arbitrator will provide a written decision, called an ''award'', summarizing the evidence, resolving all of the issues, and explaining why the arbitrator resolved the issues in the way they resolved them. | ||
===The ''Arbitration Act''=== | ===The ''Arbitration Act''=== | ||
The arbitration of family law disputes in British Columbia is governed by the provincial ''[http://canlii.ca/t/84gc Arbitration Act]'', formerly known as the ''Commercial Arbitration Act''. The highlights of the | The arbitration of family law disputes in British Columbia is governed by the provincial ''[http://canlii.ca/t/84gc Arbitration Act]'', formerly known as the ''Commercial Arbitration Act''. The highlights of the ''Act'' are these: | ||
<blockquote>'''Section 1:''' An ''arbitrator'' is defined as a person who resolves a dispute referred to him or her by the parties. An ''arbitration agreement'' is an agreement between two or more persons to have their dispute resolved by arbitration.</blockquote> | <blockquote>'''Section 1:''' An ''arbitrator'' is defined as a person who resolves a dispute referred to him or her by the parties. An ''arbitration agreement'' is an agreement between two or more persons to have their dispute resolved by arbitration.</blockquote> | ||
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===Faith-based arbitration=== | ===Faith-based arbitration=== | ||
Under the ''Arbitration Act'', the parties can choose their own rules to govern the arbitration process. Nothing in the | Under the ''Arbitration Act'', the parties can choose their own rules to govern the arbitration process. Nothing in the ''Act'' says that those rules cannot be religious rules. Judaism and Islam each have religious laws that can apply to family law issues for members of those faiths. Members of the orthodox Jewish community may use the Beth Din to settle personal disputes. Muslims can use Sharia law to the same end. | ||
Whatever rules a couple chooses, however, the result of the arbitration process must not be contrary to the laws of British Columbia. Section 23(2) says this: | Whatever rules a couple chooses, however, the result of the arbitration process must not be contrary to the laws of British Columbia. Section 23(2) says this: | ||
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*[https://bcami.com/ The BC Arbitration & Mediation Institute] | *[https://bcami.com/ The BC Arbitration & Mediation Institute] | ||
As an <span class="noglossary">alternative</span>, you could try calling a family law lawyer or two and asking if | As an <span class="noglossary">alternative</span>, you could try calling a family law lawyer or two and asking if they know and could recommend anyone who arbitrates family law disputes. Finally, you could call the Canadian Bar Association's [http://www.clicklaw.bc.ca/helpmap/service/1044 Lawyer Referral Service]. Although the service can't recommend one family law arbitrator over another, they will be able to give you some names. | ||
==Resources and links== | ==Resources and links== | ||
