Monday, 23 January 2012 05:00
One aspect of the new legislation that deserves close scrutiny is in relation to family law arbitration. Section 2 of the Act will provide a legislated option for arbitration under the definition of “family law dispute resolution”. It reads:
“family dispute resolution” means a process used by parties to a family law dispute to attempt to resolve one or more of the disputed issues outside court, and includes
(c) mediation, arbitration, collaborative family law and other processes, and…”
Previously, arbitration was an exotic, rarely used, option amongst family lawyers and their clients primarily because s.2 of the BC Commercial Arbitration Act, which governs the provision of arbitration services in BC specifically, precluded families from binding themselves to accept an arbitrated decision which could not be reviewed by, or appealed to, the BC Supreme Court.
“Family dispute resolution professional” under the new Act is defined to include “an arbitrator conducting an arbitration in relation to a family law dispute, if the arbitrator meets the requirements set out in the regulations;”
In my view, there is the potential now for the popularity of arbitration to grow notwithstanding some uncertainty about what kind of appeal process will be available to family law arbitration clients in the courts.
Hints of the test for review are provided in s.19 of the Act in relation to review of determinations made by parenting coordinators. That section provides that a parent may apply to the court and the court:
may change or set aside the determination if satisfied that the parenting coordinator
(a) acted outside his or her authority, or
(b) made an error of law or of mixed law and fact.
So it is quite likely that by regulation the legislature will consider similar guidelines for review of arbitrated decisions along with changes to the Commercial Arbitration Act. In other words, it is anticipated that there will need to be a very good reason for overturning the decision of an arbitrator but deference will otherwise be given to arbitrated decisions to help matrimonial clients avoid the ever increasing cost of accessing justice.
The devil may be in the details, but the legislature has expressed the intention of broadening access to this alternative dispute resolution mechanism to facilitate what it no doubt hopes will be speedier and more cost effective access to justice.
While outlining the goals and options for dispute resolution it is mindful of the need to be sensitive to those circumstances in which there may have been a history of emotional or physical abuse potentially rendering ineffective various dispute resolution options. Section 8 of the Act reads as follows:
(1) A family dispute resolution professional consulted by a party to a family law dispute must assess, in accordance with the regulations, whether family violence may be present, and if it appears to the family dispute resolution professional that family violence is present, the extent to which the family violence may adversely affect
(a) the safety of the party or a family member of that party, and
(b) the ability of the party to negotiate a fair agreement.
(2) Having regard to the assessment made under subsection (1), a family dispute resolution professional consulted by a party to a family law dispute must
(a) discuss with the party the advisability of using various types of family dispute resolution to resolve the matter, and
(b) inform the party of the facilities and other resources, known to the family dispute resolution professional, that may be available to assist in resolving the dispute.
(3) A family dispute resolution professional consulted by a party to a family law dispute must advise the party that agreements and orders respecting the following matters must be made in the best interests of the child only:
(b) parenting arrangements;
(c) contact with a child.
My arbitration training has been with the BC Arbitration and Mediation Institute and what struck me about the training is the liberty it provides arbitration clients to help craft their own “rules” about what evidence will be presented, the extent to which there will be cross examination, how the issues will be framed, and whether one or two issues from the marriage or all of them will be addressed using arbitration.
I have made arbitrated decisions on where children will attend school amongst other issues and it has been cost effective with the process tailored to the needs of the parents.
There are basic rules of natural justice which must be followed including the right to be heard and the right to have access to, and an ability to respond to, all of the evidence to be provided to the arbitrator.
Subject to ensuring those fundamentals are addressed, parties will be able, either directly or through counsel, to craft a process which addresses their issues, their budgets, and their timeline. I think this option is going to become increasingly popular.