Family Law Arbitration

Arbitration is a dispute resolution process in which the parties hire a neutral third party, a family law arbitrator, to make a decision resolving their dispute. The parties sign an arbitration agreement to start the process in which they agree, among other things, to be bound by the arbitrator's decision. While the job of a mediator is to help two people work towards a resolution of their family law dispute that they make for themselves, the arbitrator's job is to act like a judge and make a decision resolving the dispute, after hearing the evidence and listening to the arguments of each party.

This section provides an introduction to arbitration and discusses when to use arbitration in a family law dispute. It also provides some suggestions about how to find a family law arbitrator.

Important changes
Look for explanations under this heading to read about recent changes to family law affecting the information provided in this section.

Arbitration in British Columbia

Before the new Family Law Act became law in British Columbia, arbitration was rarely used in family law disputes, probably because most lawyers figured that if they have to have somebody make a decision in a case, it might as well be a judge. Arbitration was most often used in the context of labour and construction disputes. In other places, such as Ontario and Alberta, the arbitration of family law disputes is well-established and has been for some time. The Family Law Act, however, made a number of changes to the law that improved the usefulness of arbitration for family law disputes in British Columbia, and the number of people choosing arbitration over going to court is increasing as a result.

Arbitration has a number of advantages for resolving family law problems:

• it allows the parties 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 is not just an expert family law lawyer, but a family law lawyer with special knowledge of, for example, the care of children, tax problems, or property issues,
• it allows the parties to pick the rules that will apply to the hearing and the decision-making process,
• the process is faster than going to court,
• the process is private, confidential, 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 hearing than a court hearing. Although short trials of two or three days can usually be booked within eight or ten months, it can take a year or more to get a date for longer trials because the court is so busy. An arbitration hearing can be booked as soon as everyone has the free time in their calendars.

An outline of the arbitration process

These are the steps involved in the basic arbitration process:

1. Pick your arbitrator.
2. Sign the arbitrator's participation agreement — this is a contract that describes your responsibilities and the responsibilities of your arbitrator, how the arbitrator will be paid, and your agreement to be bound by the result of the arbitration.
3. Prepare for and attend the prehearing conference — this is a meeting at which the parties and the arbitrator will make decisions about how the arbitration will work, including the rules for the hearing, the place and date of the hearing, and the legal issues to be resolved at the hearing.
4. Start working on your case by researching the law and thinking about the evidence you need to prove your case.
5. Complete discovery and disclosure — this is a process in which you and the other party review and exchange documents that a relevant to the legal issues, such as income tax returns if child support or spousal support is an issue.
6. Exchange the documents you're going to use at the hearing — these documents might include written arguments, financial statements or summaries of what your witnesses are going to say.
7. Complete the hearing — an arbitration hearing is the equivalent of a trial, but with special rules and shorter processes.
8. Receive the arbitrator's decision — arbitrator's awards are usually due 30 days after the hearing ends, but it sometimes takes longer for the arbitrator to complete their decision.
9. Review and ask to correct the arbitrator's decision — you can ask the arbitrator to correct any clerical mistakes and other errors they may have made in their award, and to address any legal issues not resolved in the award.

Once the time to correct the arbitrator's decision has passed, the arbitration is over.

Getting into arbitration

There are only two ways you can get your family law problem into arbitration.

First, you might have a family law agreement, like a cohabitation agreement, a marriage agreement or a separation agreement, that says that any disagreements or questions about the agreement will be resolved through arbitration.

Second, you might agree, after the family law problem has arisen, that you'll go to arbitration instead of going to court, or instead of another process like mediation or collaborative negotiation.

You cannot force someone into arbitration, including by asking for a court order that you go to mediation. Going to arbitration has to be voluntary, either because you've already agreed to use arbitration if a problem comes up or because you've agreed to use arbitration after the problem has come up.

Arbitration processes

When people agree or are required to arbitrate their dispute, they first pick their arbitrator. The arbitrator you choose should be someone who is an expert in family law, and perhaps even an expert in family law with special knowledge or skills concerning the most important issues in a dispute. You probably want to choose someone who has a lot of experience as an arbitrator, someone who has a good reputation in the legal community, and, most importantly, someone you see as neutral, fair-minded and unbiased.

After picking the arbitrator, the arbitrator will ask the parties to sign a participation agreement, usually called an arbitration agreement. This agreement does three things. First, it serves as the arbitrator's retainer agreement. It describes how the arbitrator will charge for their services and when the arbitrator will expect to be paid. Second, it describes the parties' rights and responsibilities in the process as well as the responsibilities of the arbitrator and the scope of their authority. Third, it summarized the legal issues the arbitrator will address.

The next step is meet with the arbitrator to discuss the process leading to the arbitration hearing, decide the date and place for the hearing, and pick the rules that will govern the hearing. This meeting is called a prehearing conference, and picking the rules that will govern the hearing is sometimes the most important part of the arbitration process. A lot of the time, the rules that people select are taken from the more important parts of the Supreme Court Family Rules that talk about evidence, experts, and hearing procedures. However, there are lots of other options. People can pick the rules that best suit the circumstances of their children, the nature of their dispute, and the status of their finances. It's important to be as thoughtful as possible in decided what rules are necessary. Arbitration can look just like going to court, but it doesn't have to. It can be a lot more focussed and a lot more efficient.

How the arbitration process works after the prehearing conference depends on the rules you've picked.

The basic arbitration process

Most of the time, the next step after the prehearing conference requires the parties to 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. If property is an issue, you might need tax assessments, purchase documents, mortgage statements, and maybe a professional valuation of the current fair market value of the property.

You need to think carefully about what sort of documents and information you need. For complicated problems, the parties might also hire an expert to give an opinion about things like the value of a pension, a tax problem, or the best parenting arrangements for the children. (That last kind of opinion is called a parenting assessment or a section 211 report, and is usually prepared by a psychologist, clinical counsellor, or social worker.) You might also need to exchange bank statements, credit card statements and corporate financial statements. The nature of the documents that are important, the extent of the disclosure that is required, and the type of expert opinions that are most useful will change depending on the circumstances, the legal issues, and how the parties decide to approach the arbitration process.

Once the relevant documents have been exchanged and any expert opinions have been completed, each party will start to work on how they're going to present their case to the arbitrator and on the documents they'll want to refer the arbitrator to at the hearing. These might include:

• written arguments,
• timelines, charts, financial tables, and other visual aids,
• summaries of what your witnesses are going to say, called will-say statements,
• affidavits and financial statements,
• binders with the financial and other documents you're going to be asking your witnesses to comment on or explain, called books of documents, and
• binders with the case law you're going to be asking the arbitrator to consider, called books of authorities.

Sometimes the arbitrator will want the parties to cooperate and prepare other hearing documents together. These might include:

• statements of agreed facts — a written summary of the facts both parties agree about, and
• joint books of documents — binders with the financial and other documents you will both rely on.

Next, the parties and their lawyers, if they have them, will attend the hearing. Arbitration hearings can take place in the arbitrator's office, a boardroom in a hotel or anywhere else that's private, and are usually less formal than court hearings; arbitration processes can be as formal or informal as the parties and the arbitrator want.

At the hearing, each party makes an opening argument describing the evidence that will be given and then presents their evidence. The parties' evidence usually consists of the testimony of witnesses, documents, and affidavits. Each party then makes a closing argument to show the arbitrator why the arbitrator should resolve their dispute in the way they each prefer.

After the hearing process is over, the arbitrator will provide a written decision, called an award, summarizing the evidence and resolving all of the legal issues, and explaining why the arbitrator resolved the issues in the way they resolved them.

Alternative arbitration processes

Arbitration processes can be as simple or as complicated as the parties want. The basic arbitration process just described looks and feels very much like the process that applies in court. However, it isn't always necessary to have a witness who gives oral evidence, or to have any evidence at all. It isn't always necessary to have oral arguments. And, if the parties agree, awards can be given orally, rather than in writing.

Here are some examples of alternative arbitration processes:

1. The parties could make their arguments to the arbitrator by telephone or videoconference, with no evidence at all, and the arbitrator giving an oral decision right there on the spot. (This process would be ideal for decisions about a legal question where the facts either don't matter or aren't in dispute. It's also the cheapest and fastest way to get a decision.)
2. If evidence is necessary to help the arbitrator make their decision, the parties could make their arguments by telephone or video, and the evidence could be presented by affidavits alone, without the in-person testimony of any witness.
3. If an in-person hearing is necessary, the parties could agree that evidence will be provided by affidavit, with the people who made the affidavits being cross-examined by the other person or their lawyer. Or, the parties could agree that only a limited number of witnesses will testify, and that each party will have a limited amount of time to examine and cross-examine each witness.
4. If an in-person hearing is necessary and the parties agree to very few of the important facts, the parties could have an arbitration with all the bells and whistles available if they were going to court, with no limits on the number or amount of time for each witness. (This process will take the longest time to wrap up and also cost the most money.)
5. Where neither party is represented by a lawyer, the hearing could be in-person but be managed completely by the arbitrator who can explore issues and ask questions. The arbitrator would work with the parties to identify the legal issues in the dispute, and then lead the examination of all of the witnesses.

I have developed a checklist of procedural elements that is helpful for designing arbitration processes, and covers every part of the arbitration process, from deciding whether to have an in-person hearing or a hearing by videoconference, to whether and how experts will be hired, to how evidence will be presented at the hearing. You can download my "Arbitration Rules Pick-List" from John-Paul Boyd Arbitration Chambers.

Mandatory elements of arbitration

Although arbitration processes are incredibly flexible, there are certain aspects of arbitration that are absolutely mandatory.

1. The arbitrator must give each party the opportunity to make their case, and to reply to the case made by the other party.

2. The arbitrator must treat each party fairly and not be biased in favour of one party over the other.

3. When it comes to decisions about children, the arbitrator must consider only the best interests of the children.

Otherwise, the parties and the arbitrator are free to be creative as they want and create the rules and the process that are best-suited to the parties, their children, their dispute, and their budget.

Essentials of the Arbitration Act

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:

Section 1: An arbitrator is defined as a person who resolves a dispute referred to them by the parties. An arbitration agreement is an agreement between two or more persons to have their dispute resolved by arbitration.

Section 2: The act applies to commercial arbitration agreements and "any other arbitration agreement," including family law arbitration agreements. When making decisions about children, the arbitrator must consider only the best interests of the children.

Section 9: An arbitrator can make interim awards on any of the issues identified in the arbitration agreement, such as interim awards regarding the care of children, child support, and spousal support.

Section 14: The final decision of an arbitrator is binding on the parties, although the arbitrator's decision can be changed or canceled if the process or decision is procedurally defective, under section 30, or if the decision is appealed to the court, under section 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 section 35, agree that the matter in dispute may be decided on equitable grounds, grounds of conscience or some other basis." Awards that are inconsistent with the Family Law Act are not enforceable.

Section 29: Awards in family law disputes can be enforced without first getting the court's permission.

Section 30: The court can change an award for the same reasons that it can change a court order.

Section 31: Awards in family law disputes can be appealed.

Important changes
Under recent changes to the Family Law Act that took effect on 1 September 2020, the act now provides rules about the arbitration of family law disputes in addition to its rules about parenting coordination. The arbitration of family law disputes is no longer governed by the Arbitration Act.

Other ways arbitration can be used in family law disputes

Arbitration is very flexible often very helpful in resolving family law problems quickly and efficiently. Parenting coordinators use a process a lot like arbitration to make a decision resolving a disagreement when the parents aren't able to find a solution to which they both agree. The flexibility of arbitration also means that people can ask their arbitrator to make a decision based on the rules of a religion, based on grounds of conscience, or based on equity and fairness.

Arbitration can also be used to:

• break logjams in settlement discussions, where only one or two issues can't be agreed upon,
• resolve disagreements about how the law should be interpreted or applied in a particular situation,
• make temporary decisions about support or parenting arrangements while the parties are negotiating a settlement, or
• perform technical calculations, like about the amount of costs payable, the income of someone who is self-employed, the amount of spousal support payable, or the after-tax cost of children's expenses.

Faith-based arbitration

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 disputes for members of those faiths. Members of the orthodox Jewish community may use Halakha to settle personal disputes. Muslims can use Sharia law for the same purpose.

Whatever rules a couple chooses, however, the result of an arbitration cannot be "inconsistent" with the Family Law Act. Section 23(2) of the Arbitrartion Act says this:

Despite any agreement of the parties to a family law dispute, a provision of an award that is inconsistent with the Family Law Act is not enforceable.

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 that the amount of support paid cannot be too different from what the Child Support Guidelines require. It also means that a particular person shouldn't have the primary residence of a child merely because of their gender or the age of the child.

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

Important changes
Under recent changes to the Family Law Act that took effect on 1 September 2020, the act now provides rules about the arbitration of family law disputes in addition to its rules about parenting coordination. The arbitration of family law disputes is no longer governed by the Arbitration Act.

Parenting coordination

Parenting coordination uses a process that includes a decision-making function that's a lot like arbitration. In this parenting coordination, the arbitrator is called a parenting coordinator and first tries to settle a dispute about parenting through a settlement process like mediation. If the parents cannot find consensus, however, the parenting coordinator acts like an arbitrator and makes a written decision, called a determination, resolving the disputes. The parenting coordinator's authority to resolve these disputes comes from the participation agreement the parents 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 inconsistent Family Law Act. However, parenting coordinators are subject to additional restrictions in the scope of the things they can make decisions about. Under section 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 may not make decisions about:

• legal issues that are 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 already have parenting time or contact,
• substantial changes to parenting time or contact, or
• the relocation of a child.

There's a lot more information about parenting coordination in the next section in this chapter.

When to use arbitration

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

• they wish the laws of their religion or another set of principles to apply to their dispute,
• 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 going to court,
• they want to resolve their dispute discreetly and privately, and don't want to risk their personal business being made public,
• the issues are complex and require a decision-maker who is a specialist in those issues, or
• they want their dispute resolved more quickly than the court schedule will allow.

It's important to understand that while arbitrators can make awards on all of the usual family law issues, like parenting arrangements, contact, child support, spousal support, and the division of property and debt, arbitrators cannot make awards on issues that can only be decided by a judge. These include:

• divorce orders and annulments,
• orders appointing someone as the guardian of a child who is not a parent of that child,
• declarations about who is, and who is not, the parent of a child, and
• orders changing the order of a judge.

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 speak to a family law lawyer and see who they might recommend to you. You might also do an internet search for "family law arbitrator british columbia," as lawyers who work as family law arbitrators will describe themselves this way and take pains to indicate in which jurisdiction they work. You could also contact organizations that specialize in training or setting practice standards for their members, such as:

• The ADR Institute of British Columbia
• The Arbitrators Association of British Columbia
• The BC Arbitration & Mediation Institute

Finally, you could call the Canadian Bar Association's 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

Legislation

• Arbitration Act
• Divorce Act
• Family Law Act
• Family Law Act Regulation
• Child Support Guidelines

Links

• The ADR Institute of British Columbia
• The Arbitrators Association of British Columbia
• The BC Arbitration & Mediation Institute
• CBABC Lawyer Referral Service
• BC Parenting Coordinators Roster Society
• John-Paul Boyd Arbitration Chambers Library

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by John-Paul Boyd, October 10, 2019.

JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.