Family Law Arbitration: Difference between revisions
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{{JP Boyd on Family Law TOC}} | {{JP Boyd on Family Law TOC}} | ||
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 page provides an introduction to arbitration and discusses when to use arbitration in a family law dispute. This page also provides some suggestions about how to find a family law arbitrator. | This page provides an introduction to arbitration and discusses when to use arbitration in a family law dispute. This page also provides some suggestions about how to find a family law arbitrator. | ||
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==Introduction== | ==Introduction== | ||
Arbitration has rarely used been in family law matters in British Columbia, probably because most | 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. 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 | 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, children, tax problems or property | #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 | #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 | #the arbitration process is private and closed to the public; and, | ||
#the result of of the process is an award that is just as binding as a court order and | #the result of 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 | 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=== | ===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 | 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 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 which is required | 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 which is required will change depending on the circumstances and how the parties decide to approach their dispute. | ||
Once the documents have been exchanged and | Once the documents have been exchanged and any reports have been prepared, the parties will attend one or more hearing with the 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, and then makes arguments to show the arbitrator why he or she should make a particular decision. | ||
After 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 he or she resolved them. | |||
===The | ===The ''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. | 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 him or her by the parties. | Section 1: An "arbitrator" is defined as a person who resolves a dispute referred to him or her by the parties. |