Our family arbitrators and parenting arrangements lawyers are at the leading edge of a new family law resolution process. Many questions remain to be answered. How much power and authority should be granted to an arbitrator in a family arbitrators and parenting arrangements dispute? Can a family arbitrators and parenting arrangements dispute that is heard by an arbitrator allow the arbitrator the power to overrule or vary a Judge’s order?
Can a family law arbitrator change parenting arrangements contained in an order?
Our skilled family arbitrators and parenting arrangements lawyers act both as family arbitrators and for family law clients who are participating in the family law arbitration process. Our family arbitrators and parenting arrangements law offices are conveniently located in 4 locations across BC in downtown Vancouver, Surrey, Kelowna and Dawson Creek Fort St John.
Our family arbitrators and parenting arrangements know that since the Family Law Act and Arbitration Act were amended to facilitate the arbitration of family law issues, British Columbia courts and family law arbitrators find themselves in shallow waters given the dearth of case law relating to family law arbitrations. For guidance, family law arbitrators will turn to cases which have considered the same issue in other areas of law.
Family Arbitrators and Parenting Arrangements
An interesting question arises with respect to parenting arrangements. If an order contains terms governing parenting arrangements, can a family law arbitrator vary the parenting arrangements in the order and, if so, under what circumstances? Our skilled family arbitrators and parenting arrangements lawyers recently argued this point in BC Supreme Court.
The Court should give great deference to the desire of the parties to resolve issues relating to matters in the order. However, in Central Okanagan (Reginal District) v. Westbank Indian Band (1996), 20 B.C.L.R. (3d) 97 (C.A.), [1996] BCJ No. 380 the Court drew the distinction between an arbitrator deciding an issue arising out of the order, and changing he order itself. The question is, can a family law arbitrator change the order itself in a family arbitrators and parenting arrangements case?
Some family arbitrators and parenting arrangements lawyers argue that the Family Law Act entrenches the notion of judicial deference to arbitration provisions in ss. 4(b), (c), s. 6(3) and s. 44(1)(d) of the Act. If the parties have agreed a family law arbitrator should resolve the issues between them, then shouldn’t that include variation of the order that governs their relations as that is clearly what the parties intended?
Others argue that an arbitration agreement which gives a family law arbitrator the jurisdiction to vary an order regarding parenting arrangements amounts to an agreement to remove the Court’s jurisdiction to vary a parenting arrangement contrary to s. 2(2) of the Arbitration Act, which reads as follows:
A provision of an arbitration agreement that removes the jurisdiction of a court under the Divorce Act (Canada) or the Family Law Act has no effect.
Supporters of this argument point to Merrell v. Merrell (1987), 11 R.F.L. (3d) 18 (B.C.S.C) as authority for the proposition that an arbitrator purporting to vary an order under the Divorce Act in effect removes the Court’s jurisdiction.
In Merrell the former husband applied to vary the support provisions of the divorce decree pursuant to the Divorce Act, 1985. The parties were divorced in 1974. Prior to separating in 1973, the parties entered into a separation agreement which was incorporated into the divorce decree. The agreement stipulated that the parties would submit to arbitration if either of them sought to vary the support provisions:
The wife objected to the fact that the husband proceeded to Court rather than arbitrating.
After considering other procedural arguments, the Court concluded the husband could not be prohibited from applying to Court because section 2 of the Arbitration Act preserves the jurisdiction of the Court with respect to variation of an order for support pursuant to the provisions of s. 17 of the Divorce Act. The same logic would apply with respect to an attempt by a family law arbitrator to vary an order governing parenting arrangements. The power to change, suspend or terminate an Order governing parenting arrangements would be reserved to the Court by virtue of s. 2(2) of the Arbitration Act.
The difficulty with the Merrell interpretation of s. 2(2) of the Arbitration Act is that if taken literally it would mean that any attempt by a family law arbitrator to exercise jurisdiction with respect to parenting arrangements or any other issue governed by the Family Law Act would remove the Court’s jurisdiction to do so and thus would be ultra vires the arbitrator.
The answer could lie not in the nature of the arbitration agreement, but in the nature of the legislation. The Court’s authority in s. 47 of the Family Law Act to “change, suspend or terminate an order” is a remedial provision. Our family arbitrators and parenting arrangements argue that perhaps parties should not be allowed to contract out of the Court’s jurisdiction to remediate a situation, and give that jurisdiction to a family law arbitrator, unless the arbitration agreement sets out the intention of the parties to do so in the clearest of terms – O’Connor v. O’Connor, [1990 O.J. No. 293 (Ontario Provincial Court – Family Division. If this line of thinking is correct, then a family law arbitrator cannot vary a court order made pursuant to the Family Law Act unless the parties have first turned their mind to the possibility and agreed in the arbitration agreement that the family law arbitrator may not only decide issues arising from the order but may change the terms of the order itself.
If the thinking in O’Connor is correct, can it be reconcile that with the thinking in Merrell? It is arguable that the proposition Merrell is cited for involves a flawed logic. Simply giving a family law arbitrator the jurisdiction to vary a court order does not “remove” the Court’s jurisdiction. The Court retains the jurisdiction to oversee the exercise of a family law arbitrator’s jurisdiction. A party who disagrees with the decision of a family law arbitrator still has the right to appeal the ruling of a family law arbitrator either on the basis that the arbitrator made an error of law, or that the arbitrator made an error with respect to a mixed question of law and fact.
With respect to parenting arrangements, the question of what is in “the best interests of the child” is as mixed question of law and fact. Thus our family arbitrators and parenting arrangements lawyers argue that parties can give a family law arbitrator the jurisdiction to vary a court order containing parenting arrangements without offending s. 2(2) of the Arbitration Act provided they understand that the arbitration agreement cannot prohibit either party from appealing the family law arbitrator’s decision to the extent it relates to parenting arrangements.
In summary, parties or lawyers drafting an arbitration agreement in a family law proceeding should consider the following:
- Do the parties wish the family law arbitrator’s jurisdiction to include the ability to change the parenting arrangements? If so, that intention should be clearly stated in the arbitration agreement;
- The parties cannot agree that there will be no appeal from the decision of a family law arbitrator respecting parenting arrangements.
Call us toll free at 1-877-602-9900 to find out your rights and obligations in a family arbitrators and parenting arrangements case or in any family law matter you may be involved in.
