BC and Alberta Family Law Arbitration is a mechanism to help family law clients resolve their disputes efficiently. In today’s blog, senior Calgary family lawyer Peter Graburn discusses the benefits and limits for clients thinking about family law arbitration in Western Canada.
Separation and divorce can be difficult – the process for resolving these disputes should not make it more difficult. Court is one option; BC and Alberta Family Law Arbitration is another option. Family Law Arbitration can often be a faster, cheaper and (generally) better way to resolve family law disputes than the (usual) Court process. In previous articles like Toronto Family Law Mediation / Arbitration: we have spoken about the four “C” benefits of Mediation – Arbitration, namely: control; creativity; cost, and; confidentiality. Meet our mediation and arbitration team.
BC and Alberta Family Law Arbitration 1 877 602 9900.
But even the BC and Alberta Family Arbitration process has limitations. 1 877 602 9900.
The English common-law Court system has been around for a long time (dating back to pleas made to the Royal Courts following the Norman Conquest of 1066 -hence the term “Court”). During that time, the Courts have acquired their authority from a number of sources: legislation; equity; inherent parens patriae jurisdiction over children, etc. Arbitrators, on the other hand, take their authority primarily from two (2) sources: the provincial Arbitration Act and the Arbitration Agreement (sometimes including implied or inherent powers) signed between the spouses and the Arbitrator agreeing for the Arbitrator to act in resolving their dispute(s).
Here is a government fact sheet on alternative dispute resolution methods. Our lawyers can assist you with any of these options and in selecting the most appropriate one including conducting a BC and Alberta Family Law Arbitration.
Family Arbitration Limitations 1 877 602 9900.
So what are some of the limitations of the BC and Alberta Family Law Arbitration process? Specifically, they include:
► Granting a Divorce – while Arbitrators can deal with most matters in family law disputes (ie. parenting; financial support of children and spouses; division of family property, etc.), they cannot grant the actual Divorce – a Justice of the Court must do that. So a Statement of Claim (whether by one spouse or both) and other documents must be filed (at some time in the Arbitration process) with the Court in order to get the actual Divorce Judgement;
► Financial Disclosure from 3rd Parties – while Arbitrators can compel the parties to do certain things during the Arbitration process (ie. financial disclosure, sale of property, etc.), they cannot compel other people (Trustees of a trust, corporations, accountants, financial institutions, etc.) to do anything as those people are not party to nor bound by the Arbitration Agreement. This may be a particular problem if parties refuse to provide financial disclosure from 3rd parties;
► Enforcement of Orders and Awards – while Arbitrators can issue Awards (either on consent of the parties or of their own decisions) which can then be filed as a Court Order and enforced by the Court accordingly, Arbitrators do not have the authority to enforce their own or other Awards or Orders of the Court, whether by contempt proceedings [see: Woronowicz v. Conti (2015 ONSC 5247)] or other mechanisms. However, Arbitrators can (and often will) maintain jurisdiction to clarify disagreements on wording when turning a Consent Award into a Separation Agreement (which must then be enforced by the Court);
► Appointment of Parenting Experts – of particular interest (and some question) is whether Arbitrators can appoint Child’s Counsel or a Parenting Expert without the consent of the parties. In Alberta, under Practice Notes 7 and 8 of the Alberta Rules of Court, the Courts can appoint a parenting expert to conduct either an Evaluative or Therapeutic Assessment (or full blown bi-lateral assessment) of children to assist the Court in determining parenting. This is done pursuant to the Court’s inherent parens patriae (meaning “to act in the stead of a parent for the protection of a child”) jurisdiction over children. As stated by Alberta Court of Queen’s Bench Justice J. Veit regarding the Court’s overriding parens patriae jurisdiction [see: Lenny v. Lenny (1996 CanLii 10601) at para. 30]:
“where children are concerned, the state might still have a role even though the parents have not asked for intervention.”
But does a private Arbitrator have similar inherent authority? It’s questionable. One option to alleviate this problem may be to include in the Arbitration Agreement a provision that specifically gives the Arbitrator authority to appoint an expert (ie. lawyer, psychologist, etc.) to assist the Arbitrator in making decisions regarding parenting of the parties’ children.
So clearly, in many ways, the Family Arbitration process may be a better way to resolve family disputes than the traditional adversarial Court process: it’s faster, cheaper and, in many ways, “better” (ie. private; more flexible; possibility of more creative solutions, etc.) than Court.
Contact Us If You Have a BC and Alberta Family Law Arbitration 1 877 602 9900.
But it may not be the panacea for resolving all family disputes. Some procedural and enforcement limitations remain. While some provinces (ie. British Columbia and Ontario) have introduced specific Rules and Regulations for Family Arbitration, Alberta has not (yet). Many issues [ie. whether Arbitrators can grant equitable relief and (should) have inherent authority (ie. parens patriae jurisdiction)] must be clarified.
In the meantime, Family Arbitration is the best alternative (to Court) that we have.
If you need help with a BC and Alberta Family Law Arbitration contact us across BC and Alberta today.
