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 that they agree they will be bound by. 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 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.
Arbitration in British Columbia
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 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:
- 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.
The arbitration process
When a couple agrees to arbitrate their dispute — you can't force someone into arbitration, it has to be voluntary — they first pick their arbitrator and then meet with the arbitrator to discuss the process leading to the arbitration hearing and pick their rules. Most of the time, the rules that people select are the more important parts of the 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.
If the parties cannot agree on how a child should be cared for, they might hire a psychologist to prepare a report on the parenting arrangements that will work best for the child, called a needs of the child assessment, or they might hire a third-party lawyer or a social worker to talk to the child and prepare a views of the child report. The nature of the documents that are important and the extent of the disclosure that is required will change, depending on the circumstances and how the parties decide to approach their dispute. There's more information about needs of the child assessments and views of the child reports in the introduction section of the Children chapter.
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 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 they resolved them.
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," such as 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 subject at issue, 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, subject to the reversal of the arbitrator's decision if the process or decision is procedurally 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." Awards that are inconsistent with the Family Law Act are not enforceable.
Section 29: Awards in family law disputes can be enforced without leave of the court.
Section 30: The court can vary an award for the same reasons that it can vary a court order.
Section 31: Awards in family law disputes can be appealed.
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:
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 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 begin 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.
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 or the provincial Family Law Act. The court will not uphold determinations 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 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 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 settlement processes, or court. Typically, a couple will choose arbitration if:
- they wish the laws of their religion or another set of principles 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 discreetly 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
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 contact organizations that specialize in training or setting practice standards for family law arbitrators, such as:
- The Family Law Arbitrators Society
- 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 asking if they know and could recommend anyone who arbitrates family law disputes. 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.
- The Arbitrators Association of British Columbia
- The BC Arbitration & Mediation Institute
- CBABC Lawyer Referral Service.
- BC Parenting Coordinators Roster Society
|This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Sandy Thomson and Taryn Moore, August 1, 2016.|
|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.|
Normally referred to as the "Supreme Court of British Columbia," this court hears most court proceedings in this province. The Supreme Court is a court of inherent jurisdiction and is subject to no limits on the sorts of claims it can hear or on the sorts of orders it can make. Decisions of the Provincial Court are appealed to the Supreme Court; decisions of the Supreme Court are appealed to the Court of Appeal. See "Court of Appeal," "jurisdiction," "Provincial Court" and "Supreme Court of Canada."
A court established and staffed by the provincial government, which includes Small Claims Court, Youth Court and Family Court. The Provincial Court is the lowest level of court in British Columbia and is restricted in the sorts of matters it can deal with. It is, however, the most accessible of the two trial courts and no fees are charged to begin or defend a court proceeding. Small Claims Court, for example, cannot deal with claims larger than $25,000, and Family Court cannot deal with the division of family property or matters under the Divorce Act. See "judge" and "jurisdiction."
The processes used to conclusively resolve legal disputes including negotiation, collaborative settlement processes, mediation, arbitration and litigation.
A person named in a court proceeding or joined to a proceeding who is neither the claimant nor the respondent. A third party may be joined to a proceeding where the respondent believes that the person has or shares some responsibility for the cause of action. See "action," "cause of action" and "party."
A lawyer or another person with special training in the arbitration of family law disputes who meets the training and experience requirements set out in the provincial Family Law Act Regulation. See "arbitration."
A person appointed by the federal or provincial government to manage and decide court proceedings in an impartial manner, independent of influence by the parties, the government or agents of the government. The decisions of a judge are binding upon the parties to the proceeding, subject to appeal.
In law, any proceeding before a judicial official to determine questions of law and questions of fact, including the hearing of an application and the hearing of a trial. See "decision" and "evidence."
Facts or proof of facts presented to a judge at a hearing or trial. Evidence can be given through the oral testimony of witnesses, in writing as business records and other documents, or in the form of physical objects. Evidence must be admissible according to the rules of court and the rules of evidence. See "circumstantial evidence," "hearsay," and "testimony."
In law, a person named as an applicant, claimant, respondent or third party in a court proceeding; someone asserting a claim in a court proceeding or against whom a claim has been brought. See "action" and "litigant."
A dispute resolution process in which an arbitrator hears the evidence and arguments presented by the parties to a legal dispute and makes an award which resolves the dispute and is binding on the parties. See "alternative dispute resolution" and "family law arbitrator."
In law, a judge's conclusions after hearing argument and considering the evidence presented at a trial or an application; a judgment; the judge's reasons. A judge's written or oral decision will include the judge's conclusions about the relief or remedies claimed as well as their findings of fact and conclusions of law. A written decision is called the judge’s "reasons for judgment." See "common law," "conclusions of law," and "findings of fact."
In law, a court proceeding; a lawsuit; an action; a cause of action; a claim. Also the historic decisions of the court. See "action," "case law, " "court proceeding," and "precedent."
Something which can be owned. See "chattels" and "real property."
A mandatory direction of an arbitrator, binding and enforceable upon the parties to an arbitration proceeding, made following the hearing of the arbitration trial proceeding or the parties' settlement, following which the only recourse open to a dissatisfied party is to challenge or appeal the award in court. See "appeal," "arbitration" and "family law arbitrator."
In law, a requirement or obligation to honour and abide by something, such as a contract or order of the court. A judge's order is "binding" in the sense that it must be obeyed or a certain punishment will be imposed. Also refers to the principle that a higher court's decision on a point of law must be adopted by a lower court. See "contempt of court" and "precedent."
A mandatory direction of the court, binding and enforceable upon the parties to a court proceeding. An "interim order" is a temporary order made following the hearing of an interim application. A "final order" is a permanent order, made following the trial of the court proceeding or the parties' settlement, following which the only recourse open to a dissatisfied party is to appeal. See "appeal," "consent order," "decision" and "declaration."
The testing of the claims at issue in a court proceeding at a formal hearing before a judge with the jurisdiction to hear the proceeding. The parties present their evidence and arguments to the judge, who then makes a determination of the parties' claims against one another that is final and binding on the parties unless appealed. See "action," "appeal," "argument," "claim," "evidence" and "jurisdiction."
Money paid by one parent or guardian to another parent or guardian as a contribution toward the cost of a child's living and other expenses.
A term under the Family Law Act which describes the arrangements for parental responsibilities and parenting time among guardians, made in an order or agreement. "Parenting arrangements" does not include contact. See "contact," "guardian," "parental responsibilities" and "parenting time."
A person who is younger than the legal age of majority, 19 in British Columbia. See "age of majority."
A person licensed to practice law in a particular jurisdiction. See "barrister and solicitor."
A step in a court proceeding in which each party advises the other of the documents in their possession which relate to the issues in the court proceeding and produces copies of any requested documents before trial. This process is regulated by the rules of court, which put each party under an ongoing obligation to continue to advise the other of new documents coming into their possession or control. The purpose of this step is to encourage the settlement of court proceedings and to prevent a party from springing new evidence on the other party at trial.
Oral evidence given by a witness in court or in an affidavit under witness' oath or affirmation as to the truth of the statement. See "affirm," "evidence," "oath" and "witness."
Intentionally doing a thing; a law passed by a government, also called "legislation" or a "statute." See "regulations."
Money paid by one spouse to another spouse either as a contribution toward the spouse's living expenses or to compensate the spouse for the economic consequences of decisions made by the spouses during their relationship.
In law, usually refers to a decision of an appeal court overturning the decision of a lower court on a particular issue. The lower court's decision is said to have been "reversed on appeal." See "appeal" and "common law."
A legal proceeding in which one party sues another for a specific remedy or relief, also called an "action," a "lawsuit" or a "case." A court proceeding for divorce, for example, is a proceeding in which the claimant sues the respondent for the relief of a divorce order.
The legal termination of a valid marriage by an order of a judge; the ending of a marital relationship and the conjugal obligations of each spouse to the other. See "conjugal rights," "marriage," and "marriage, validity of."
A child-focused dispute resolution process used to resolve disputes about parenting arrangements and the implementation of a parenting plan set out in a final order or agreement. See "alternative dispute resolution" and "parenting coordinator."
A lawyer or mental health professional with special training in the mediation and arbitration of family law disputes, family dynamics and child developmental psychology who meets the training and experience requirements set out in the provincial Family Law Act Regulation.
A resolution of one or more issues in a court proceeding or legal dispute with the agreement of the parties to the proceeding or dispute, usually recorded in a written agreement or in an order that all parties agree the court should make. A court proceeding can be settled at any time before the conclusion of trial. See "action," "consent order," "family law agreements" and "offer."
A dispute resolution process in which a specially-trained neutral person facilitates discussions between the parties to a legal dispute and helps them reach a compromise settling the dispute. See "alternative dispute resolution" and "family law mediator."
A term under the Family Law Act that describes the visitation rights of a person who is not a guardian with a child. Contact may be provided by court order or by the agreement among the child's guardians who have parental responsibility for determining contact. See "guardian" and "parental responsibilities."
A term under the Family Law Act which describes the various rights, duties and responsibilities exercised by guardians in the care, upbringing and management of the children in their care, including determining the child's education, diet, religious instruction or lack thereof, medical care, linguistic and cultural instruction, and so forth. See "guardian."
A term under the Family Law Act which describes the time a guardian has with a child and during which is responsible for the day to day care of the child. See "guardian."
A family of dispute resolution processes in which the parties to a legal dispute and their lawyers agree that they will make every effort to resolve the dispute through cooperative, transparent negotiations, with the assistance of counsellors and neutral experts in financial issues and children's issues as necessary, without going to court. See "alternative dispute resolution."
In family law, the process by which an agreement is formed between the parties to a legal dispute resolving that dispute, usually requiring mutual compromise from the parties' original positions to the extent tolerable by each party. See "alternative dispute resolution" and "family law agreements."