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.
- 1 Arbitration in British Columbia
- 1.1 An outline of the arbitration process
- 1.2 Getting into arbitration
- 1.3 Arbitration processes
- 1.4 Essentials of the Arbitration Act
- 1.5 Other ways arbitration can be used in family law disputes
- 2 When to use arbitration
- 3 How to find a family law arbitrator
- 4 Resources and links
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:
- Pick your arbitrator.
- 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.
- 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.
- Start working on your case by researching the law and thinking about the evidence you need to prove your case.
- 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.
- 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.
- Complete the hearing — an arbitration hearing is the equivalent of a trial, but with special rules and shorter processes.
- 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.
- 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.
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 particpation 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:
- 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.)
- 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.
- 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.
- 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.)
- 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.
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.
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.
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.
- 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.|
Normally referred to as the "Supreme Court of British Columbia," this court hears most of the trials in this province. The Supreme Court is a court of inherent jurisdiction and has 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 family law proceeding. The Family Court of the Provincial Court cannot deal with the division of family property or any claims under the Divorce Act. See "Divorce Act," "judge" and "jurisdiction."
Processes used to 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 dispute resolution process in which an arbitrator hears the evidence and arguments presented by the parties to a legal dispute and makes an award that resolves the dispute and is binding on the parties. See "alternative dispute resolution" and "family law arbitrator."
In law, (1) a judge's conclusions after hearing argument and considering the evidence presented at a trial or an application, (2) a judgment, or (3) 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."
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."
Facts, or proof tending to support the existence 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."
(1) In law, a court proceeding; a lawsuit; an action; a cause of action; a claim. (2) A historic decision of the court; case law. See "action," "case law, " "court proceeding," and "precedent."
In law, the interpretation of something, like a document or a set of circumstances, so as to give it meaning. For example, if a separation agreement stated that one guardian "will have the children on Monday, Tuesday, and Friday" but didn’t say anything about the other guardian, the agreement would be constructed to mean that the other guardian would have the children on the days that weren't mentioned.
A person licensed to practice law in a particular jurisdiction by that jurisdiction's law society. See "barrister and solicitor."
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."
(1) 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. (2) The principle that a higher court's decision on a point of law must be followed by a lower court. See "contempt of court" and "precedent."
A mandatory direction of the court that is 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. Failing to abide by the terms of an order may constitute contempt of court. See "appeal," "consent order," "contempt of court," "decision" and "declaration."
A step in a court proceeding in which a party may demand that the other party produce specific documents and submit to a cross-examination, on oath or affirmation, outside of court before trial. This process is regulated by the rules of court. The purpose of this step is to encourage the settlement of court proceedings and to make sure that each party knows what the other party's case will be at trial. See "examination for discovery."
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 documents the other side requests 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.
In law, the re-examination of a term of an order or agreement, usually to determine whether the term remains fair and appropriate in light of the circumstances prevailing at the time of the review. In family law, particularly the review of an order or agreement provided for the payment of spousal support. See "de novo," "family law agreements," "order" and "spousal support."
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 payment made by one spouse to the other spouse to help with the recipient's day-to-day living expenses or to compensate the recipient for the financial choices the spouses made during the relationship.
The testing of the claims 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 decision resolving the parties' claims against one another that is final and binding on the parties unless successfully appealed. See "action," "appeal," "argument," "claim," "evidence" and "jurisdiction."
An agreement between two or more persons about family law issues that have arisen or may arise, dealing with their respective rights and obligations to one another, which the parties expect will be binding on them and be enforceable in court. Typical family law agreements include marriage agreements, cohabitation agreements and separation agreements.
An agreement signed by people who are or have begun to live together in a marriage-like relationship that is intended to govern their rights and obligations in the event of the breakdown of their relationship and, sometimes, their rights and obligations during their relationship. See "family law agreement."
An agreement signed by people who are planning on marrying or who have married that is intended to govern their rights and obligations in the event of the breakdown of their marriage and, sometimes, their rights and obligations during their marriage. See "family law agreement."
A contract intended to resolve all or some of the legal issues arising from the breakdown of a relationship and intended to guide the parties in their dealings with one another into the future. A typical separation agreement is signed following a settlement reached through negotiation and deals with issues including guardianship, parenting arrangements, contact, support, the division of property, and the division of debt. See "family law agreements."
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 dispute resolution process 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, sometimes with the assistance of counsellors and neutral experts in financial issues and children's issues as necessary, without going to court. Also known as collaborative law, even though it's not a type of law, and as collaborative settlement processes. See "alternative dispute resolution."
(1) The act of hiring of lawyer, (2) the money paid to a lawyer to secure their services, or (3) the terms and extent of a lawyer's services on behalf of a client.
(1) In law, a court proceeding, a lawsuit, a legal action, a case, or (2) a claimant's claim against a respondent. (3) In fashion, menswear designed to inflict maximum discomfort at maximum cost. See "action."
The conditional transfer of the title to real property by an owner to another person in return for money given by that person as a loan, while retaining possession of the property. The party to whom title is given, the "mortgagee," usually a bank, is allowed to register the title of the property in their name if the person taking the loan, the "mortgagor," fails to make the required payments. See "encumbrance" and "real property."
A term describing the value of real property or personal property in terms of the amount a reasonable third party would pay for the property at its current location in its current condition.
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."
The law as established and developed by the decisions made in each court proceeding. See "common law."
In law, an attempt to persuade by logical reasoning. Usually refers to oral or written argument presented to a judge or arbitrator following the presentation of evidence, or to a written summary of argument.
Oral evidence given by a witness in court or in an affidavit under the witness's oath or affirmation as to the truth of the statement. See "affirm," "evidence," "oath" and "witness."
A person with direct, personal knowledge of facts and events relevant to the issues before the court; a person giving oral evidence in court on oath or affirmation as to the truth of the evidence given. See "affirm," "evidence," "oath" and "opinion evidence."
A legal document in which a person provides evidence of certain facts and events in writing. The person making the affidavit, the deponent, must confirm that the statements made in the affidavit are true by oath or affirmation. Affidavits must be signed in front of a lawyer, a notary public or a commissioner for taking oaths, who takes the oath or affirmation of the deponent. Affidavits are used as evidence, just as if the person making the affidavit had made the statements as a witness at trial. See "deponent", "affirm," "oath" and "witness."
In law, an answer or rebuttal to a claim made or a defence raised by the other party to a court proceeding or legal dispute. See "action," "claim," "defence" and "rebut."
(1) Intentionally doing a thing, or (2) a law passed by a government, also called "legislation" or a "statute." See "regulations."
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."
In law, a calculation of the allowable legal expenses of a party to a court proceeding, as determined by the Supreme Court Family Rules. The party who is most successful in a court proceeding is usually awarded their "costs" of the proceeding. See "account," "bill of costs," "certificate of costs" and "lawyer's fees."
The geographic place where a person permanently lives. This is different from a person's "domicile" in that a person's residence is more fixed and less changeable in nature. A person's residence can also have an impact on a court's authority to hear and decide a legal action. See "domicile" and "jurisdiction."
A person who is younger than the legal age of majority, 19 in British Columbia. See "age of majority."
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. See "arbitration" and "mediation."
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 an agreement among the child's guardians with parental responsibility for making decisions about 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."
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."
A sum of money or an obligation owed by one person to another. A "debtor" is a person responsible for paying a debt; a "creditor" is the person to whom the debt is owed.
In family law, the natural or adoptive father or mother of a child; may also include stepparents, depending on the circumstances and the applicable legislation; may include the donors of eggs or sperm and surrogate mothers, depending on the circumstances and the terms of any assisted reproduction agreement. See "adoptive parent," "assisted reproduction," "natural parent" and "stepparent."
With respect to courts, (1) the authority of the court to hear an action and make orders, (2) the limits of the authority of a particular judicial official, (3) the geographic location of a court, or (4) the territorial limits of a court's authority. With respect to governments, (5) the authority of a government to make legislation as determined by the constitution, or (6) the limits of authority of a particular government agency. See “constitution."