Family Law Arbitration

In arbitration, the parties hire a neutral third party, an arbitrator, to decide how a dispute should be resolved. While the job of a mediator is to help two people work towards a solution that they make for themselves, the arbitrator's job is to act like a judge and impose a resolution, after hearing evidence and listening to the arguments of each party.

This chapter provides an introduction to arbitration, discusses when to use arbitration in a family law dispute, and gives some suggestions about how to find a family law arbitrator. A list of family law arbitrators practicing in the Lower Mainland and Victoria is provided.

Introduction

Arbitration is rarely used in family law matters in British Columbia, probably because most lawyers aren't used to it and probably because many lawyers figure that if they have to have somebody impose a decision in a case, it might as well be a judge. In British Columbia, arbitration is most often used in a labour law context.

Arbitration has a number of advantages for family law problems:

it allows a couple to hand-pick the particular person who will make decisions about the issues they cannot agree on; it allows the couple to pick the particular rules that will apply to the arbitration process and the arbitrator's decision, providing that the rules aren't too different from the usual rules of family law and providing that the result of the arbitration process would be considered reasonable under the usual rules of family law; and, the arbitration process is private and shielded from public scrutiny.

The Process

When a couple agree to arbitrate their dispute — someone can't be forced to enter into arbitration, it has to be voluntary — they first pick their arbitrator and then they pick their rules. Most of the time, the rules people choose are the principles laid out in the Divorce Act, the Family Relations Act and the more important parts of the Rules of Court relating to evidence and the discovery process.

Next, the couple will exchange documents and information that are relevant to the issues. If child support is an issue, for example, financial statements might be prepared and documents like income tax returns and T4 slips might be exchanged. If a couple cannot agree on how a child should be cared for, they might hire a psychologist to prepare an assessment of the parenting arrangements that will work best for the child, usually called a "custody and access report" or a "section 15 report."

Once the documents have been exchanged and the experts' reports prepared, the parties then attend one or more meetings with the arbitrator. These meetings are usually a lot less formal that court hearings, and there can be as much flexibility to the process as the parties will agree to. The meetings are sort of a cross between the informality of the mediation process and the rigid formality of the litigation process, and each party essentially attempts to convince the arbitrator and the other side that their proposed way of settling the dispute is the best solution for everyone.

At the end of the meetings, the arbitrator will make a decision, called an "award," setting out how the issues will be resolved. Although the award is legally binding on the parties and stands on its own, the parties might want to put the award into the form of a court order if litigation had been started, or into the form of a separation agreement if there are issues the parties settled on their own that aren't covered by the award or if some terms of the award aren't suitable for a court order.

The Commercial Arbitration Act

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

Section 1: An "arbitrator" is defined as a person who resolves a dispute referred to him or her by the parties. Section 2: The act applies to commercial arbitration agreements and "any other arbitration agreement," such as family law arbitration agreements. Section 1: An "arbitration agreement" is defined as an agreement between two or more persons to have their dispute resolved by arbitration. Section 9: An arbitrator can make interim awards on any subject at issue, such as interim awards regarding the care and control of children, child support and spousal support. Section 14: The final decision of an arbitrator is binding on the parties, subject to the reversal of the arbitrator's decision if the process or decision is proceduraly defective, under s. 30, or if the decision is appealed to the court, under s. 31. Section 23: "An arbitrator must adjudicate the matter before the arbitrator by reference to law unless the parties, as a term of an agreement referred to in s. 35, agree that the matter in dispute may be decided on equitable grounds, grounds of conscience or some other basis."

Faith-Based Arbitration

Under the Commercial 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 overtly contrary to the laws of British Columbia. For example, 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.

Note that if the parties to faith-based arbitration wish to obtain a divorce, they must still initiate a action in the Supreme Court of British Columbia for a divorce order. A religious divorce, such as the Jewish Get, is not a legal divorce.

Parenting Coordination

The Commercial 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 mediation. If the parents cannot find consensus, the parenting coordinator acts an arbitrator and makes an award resolving the dispute. The parenting coordinator's authority to resolve the 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 decisions that are contrary to the law in British Columbia, including the federal Divorce Act and the provincial Family Relations Act. The court will not uphold awards that are contrary to the law in this province.

See the website of the BC Parenting Coordinators Roster Society for more information about parenting coordination.

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When to Use Arbitration

Only a few circumstances make arbitration a necessary choice over the mediation or litigation processes. Typically, a couple will choose arbitration if:

they wish the laws of their religion to apply to the proceedings; their positions are too far apart to make mediation a reasonable choice and must have a decision made for them, but do not want to go to the expense, anxiety and acrimony typically involved in litigation; they want to resolve their dispute privately and don't want to risk things being made public; the issues are extremely 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. Back to the top of this chapter.

How to Find a Family Law Arbitrator

This is the hard part about arbitrating family law disputes, as there aren't too many arbitrators who specialize in family law issues. Your first and best bet is to call a family law lawyer or two and ask if he or she knows anyone who arbitrates family law disputes; get the lawyer's referral. The family law lawyers I know of who do this sort of thing, and I expect there are many more of whom I don't know, are:

John-Paul Boyd, 604-689-7571 (Vancouver) Trudi Brown, QC, 250-595-2220 (Victoria) Stephanie Fabbro, 604-687-1133 (Vancouver) Lisa Hamilton, 604-687-1133 (Vancouver) Jane Henderson, QC, 250-595-2220 (Victoria) Larry Kahn, QC, 604-270-9571 (Richmond) Georgialee Lang, 604-669-7080 (Vancouver) Colin Millar, 604-682-3664 (Vancouver) Craig Neville, 604-688-1301 (Vancouver) Karen Nordlinger, QC, 604-689-7571 (Vancouver) These lawyers are all very skilled, highly respected and I recommend each of them. Unfortunately, they all practice in the Lower Mainland or Victoria, although I understand that Ms. Lang may also maintain a practice in Kelowna and Palm Springs. As an alternative, you might try contacting the Arbitrators Association of British Columbia or the BC Arbitration & Mediation Institute for other names.