Family Law Arbitration as an Alternative to Litigation

If you are going through a divorce in British Columbia, you may believe that your case is destined to linger on for months while you wait through numerous contested court hearings. While cases that proceed through the litigation process may indeed drag on over long periods, you may want to consider a divorce alternative such as arbitration for a quicker resolution to your case.

The key benefit to arbitration over family law litigation is that the process is generally much quicker, thus saving the time and expense associated with the slower court litigation process. Arbitration is still adversarial in nature, meaning you and your spouse will still present your respective arguments to a third party. The third party’s decision will be a final one just like a judge’s would be. Unlike court, in which your case would be assigned to a judge, you are able to choose the arbitrator who will hear your case, and the proceeding is also confidential in nature.

Mediation is another alternative to both litigation and arbitration that may be a better choice for some. In mediation, a neutral third party acts as a facilitator to help the two sides reach an agreement. Unlike arbitration, a mediator does not rule on the case, and if an agreement is not reached, you can still proceed to court on any outstanding and unresolved issues.

We have arbitrators who hear cases and lawyers who represent people through arbitration on our staff. We help people who have family law issues by arbitrating cases, and our arbitrators work to help quickly resolve disputes while remaining fair and impartial. Our lawyers zealously advocate on behalf of their clients through both arbitration and litigation proceedings. For more information, you may want to review our page on arbitration.

Qualifications of an Arbitrator

Arbitration is not the same as mediation; however, it can be used along with mediation or other collaborative processes. In arbitration, you agree to allow a family law arbitrator to make a decision on your family issue, much the same as a judge would.

In arbitration, all parties must agree to the use of an arbitrator and the rules that will be applied during the arbitration before the process begins. The rules cannot be changed after the process begins.

What are the requirements of an arbitrator?

Beginning Jan. 1, 2014, certain training and qualification requirements for family law arbitrators were enacted by the Family Law Act. To practice arbitration in Canada, an arbitrator must be an attorney, psychologist or social worker. In addition, they must be trained in arbitration, decision-making, skills development, family law and family violence. They must also have, at a minimum, 10 years’ experience working in a family-related field.

An arbitrator who is an attorney can perform arbitration on any and all types of family law issues, from divorce and child-related issues to property division and alimony cases. A psychologist or social worker, who is not an attorney, may only perform arbitration on child issues and child support cases.

Resolving issues outside of the courtroom using an arbitrator is called an alternative dispute resolution. Through mediation and negotiation, and an impartial arbitrator, the focus is less on who wins or loses, and more on finding an agreeable solution to a family issue. This path helps families to work together instead of creating a larger disparity between those involved.

Source: British Columbia: Family Justice Information and Support, “Arbitrators,” accessed May 1, 2015

Is an Arbitration Agreement Binding?

Arbitration is an option that many people use to resolve a dispute without having to go to court. The benefits of arbitration are not just the avoidance of going to court, but it can also be more effective in coming to a civil agreement without strife and other complexities.

Are arbitration agreements binding?

The short answer is “Yes.” The purpose of arbitration is to have a resolution for an issue, the same as if you went to court. Whether it is a divorce, a child custody issue, a family property dispute or any other issue, if the final agreement is not binding, you may have wasted your time. In most instances, the agreements that come out of arbitration are not only binding, but cannot be appealed. An agreement is usually signed at the beginning of the arbitration process, specifying these rules and regulations.

Is arbitration private or public?

Arbitration is private; that is the opposite of most court cases, which are public. If the final arbitration agreement is filed with the court and needs to be enforced at some point, it may become public then. Arbitration agreements are enforceable by the court; however, they must be filed with the court before they can be enforced.

Do I need an attorney for arbitration?

You do not have to have an attorney for arbitration, but it is recommended. A mediation or arbitration process may require more than one type of professional to mediate or provide information regarding a part of the proceedings. An attorney can help provide evidence and resources, as well as oversee the process itself.

Once arbitration begins, can we change our minds and decide to settle?

Absolutely. The whole purpose of arbitration is to come to a settlement agreement that works for both parties involved. If the parties decide to settle on an agreement, the process can be completed.

Source: Alberta Arbitration & Mediation Society, “What is Arbitration?,” accessed May 28, 2015

Dividing Property when You Can’t Agree

Some divorces in British Columbia go very well. The two parties sit down and hammer out an agreement about how property should be split up—one person takes the house, the other takes the car, the bank accounts are split down the middle. Other times, though, people can’t come to any fair agreement on their own.

That is why the property division case may need to go to arbitration.

The problem with splitting things up on your own is that you both may want an outcome that favours you. People are naturally competitive, and you may feel you deserve it. The goal of the court, though, is to make sure that things are actually divided equally. There are creative ways to do this.

The easiest way is just to split cash down the middle, sell everything that can’t be divided, and split up any money that’s gained in the sale. If the house sells for $300,000, you both get $150,000 and go on your way—unless the mortgage must be paid first.

Other times, things can be moved around so that the amounts are equal. For example, if there is a bank account with $400,000 in it, it would usually be split with $200,000 for each side. However, if you want to keep the house and your spouse doesn’t, you may be able to get the entire home if you only take $50,000 from the bank account, essentially buying your spouse out with the other $150,000.

The whole process can get pretty complicated, and there may be many legal battles along the way, so be sure you understand your rights.

Source: Financial Consumer Agency of Canada, “Sharing your property and debt after your relationship ends,” accessed June 19, 2015

What are the Duties of an Arbitrator?

The law clearly outlines the duties and responsibilities of an arbitrator, and understanding these guidelines can help divorcing couples ensure they are familiar with what usually happens in an arbitration. Arbitrators often decide the when and where of the happenings related to the arbitration. This can include the actual schedule and meeting place of the arbitration itself as well as where witnesses will be heard or where any applicable documents or property will be presented for inspection.

Arbitrators can also require someone to attend the arbitration to give evidence or appoint an expert to come in and give testimony on any relevant issues. An arbitrator also has some control over financial matters. The arbitrator can decide how the costs associated with the arbitration will be handled and also has the power to award either prejudgment or post-judgment interest.

It’s important to understand that while arbitration is a fairly formal proceeding, it is not the same as going through the family courts. However, it does have many benefits, including making it easier for couples to get through the family law process much quicker than if they would have used the traditional courts. It also allows the couple to choose an arbitrator that may be more familiar with their needs and family history.

If you are interested in an arbitration or aren’t sure what to look for in an arbitrator or how to prepare for the process, talking with a lawyer can help you gather the information you need to make the best decision moving forward.

Source: FindLaw, “The arbitration process,” accessed July 17, 2015

What is Child Protection Services?

While many divorces are completed without outside intervention, in some cases, Child Protection Services may end up being involved. This can happen if someone makes a report during the course of the divorce or if one of the parents makes accusations of abuse against the other. It’s normal to be stressed and even scared if this happens, but understanding what Child Protection Services does can help alleviate some of this concern.

As the name would suggest, Child Protection Services is tasked with ensuring that minor children are protected from any threats against their physical safety. In the event that there are abuse allegations against one of the parents, another relative or care provider, Child Protection Services has social workers who work to investigate the veracity of these claims and decide if action needs to be taken.

If the social worker does determine that the child is in danger, possible courses of action include removing the child from the home, supervising the child’s care and/or offering the family support services. In cases where the child is removed from the home, the child may be able to live with a relative if the court determines the person is a responsible and safe caregiver.

While working through a divorce via a collaborative process is usually ideal, this isn’t possible for some couples. It’s common for parents to attempt to hurt the other by making false accusations of child abuse or other mistreatment. If this is happening or you believe your ex may attempt this, it’s important to talk with your lawyer about this possibility and what is likely to happen as soon as possible.

Source: Ministry of Children and Family Development, “Protecting Children,” accessed Aug. 20, 2015

Authorities Searching for Man Accused of Parental Abduction

While it’s normal and even expected to be upset at having limited time with your children after a divorce or losing a custody battle, it’s always important to respect the court’s decision and take any further action through the appropriate legal channels. Making spur of the moment decisions can backfire later on down the line and negatively affect another bid for custody or increased visitation rights. According to reports, INTERPOL was looking for four children who were believed to have been taken overseas by their father. The mother said that she had been worried about this possibility for quite some time after a contentious divorce and custody battle over the couple’s children. It appears that the incident began after the father did not return the children after a European vacation. The children’s mother believes he may have taken them to the Middle East, where he had ties.

The arrest warrant was issued for the man, a doctor who was known for working with Syrian refugees, across all of Canada, and the children are listed on the website for INTERPOL. However, some of those close to the case say that the man is a good father and has just been having a hard time dealing with the aftermath of the divorce and custody battle. One acquaintance of the father alleged that the mother had been making it difficult for the father to spend time with the children.

While there are always two sides to every story, not returning the children to a custodial parent after a visitation time is never a good idea, regardless of the circumstances. This can lead to consequences such as decreased time with the children later on or limitations imposed on parenting time.

Source: AM 730, “UPDATE: BC doctor wanted for abducting his children,” Charmaine de Silva, Aug. 26, 2015

How Can Co-Parenting Apps Help Me?

While custody orders usually set forth some general co-parenting guidelines, a visitation schedule and child support, they often do not include details on how to handle the smaller expenses related to raising children. Extracurricular activities are just one example of things that require parents to pay fees or buy equipment beyond the scope of the child support order.

If parents know ahead of time that these things are likely to be issues, they may be able to set forth provisions in the court order for how those expenses will be handled, but more often than not, parents are left to figure this part out for themselves. One of the most contentious points in this process can be proving that the expense was necessary, showing that it should be a shared expense and requesting reimbursement.Add New

However, the new wave of co-parenting apps is making it easier for parents to navigate these issues. Most of these apps provide a way to directly link your bank account so that you can pay each other through the app — the app sometimes takes a couple of dollars as a processing fee — but the most important feature is the ability to show proof of the expense. Uploading a receipt with a request for reimbursement makes it easy for the other parent to see what the money was for, who paid and how much their portion should be.

For those who don’t want to use a formal parenting app, using free cloud storage programs may be an alternative. The parents create a shared cloud storage account and can upload receipts, records and even photos so that both parties have access to these materials as needed without always having to go through the other parent.

Source: Reuters, “Expense apps help divorced parents avoid anger,” Beth Pinsker, accessed Sep. 24, 2015

What is the Difference Between Arbitration and Mediation?

Having realistic expectations is one of the most important things you can do to keep the stress involved in a divorce as low as possible. By understanding all of the possible options and what each entails, you will be better prepared to handle the surprises and delays common to divorces without losing sight of the end goal.

Two commonly misunderstood methods of divorcing are the alternative dispute resolution methods of arbitration and mediation. While both of these are ways that couples can avoid dealing with going to trial and having the family courts make the final decisions about the divorce issues, they differ in fundamental ways.

In mediation, the couple and their legal representatives play a major role in discussing the terms of the settlement. The goal is to come to an agreement that both parties are willing to abide by and then present that to the family courts to be ordered.

However, the terms of a mediation are not generally legally binding until the judge makes the final order. This gives the couple more flexibility. In arbitration, the third party is slightly more than a facilitator and can actually make negotiation legally binding. In this case, neither party would be able to appeal once the arbitration was completed and a decision made.

While both of these methods have their benefits and drawbacks, both offer the ability to save time and often money over going through an entire trial. In some cases, it may also be possible for the couple to come to an agreement on some issues and only need to go to trial for the parts that could not be negotiated.

Source: Huffington Post, “Your Demeanor Can Affect Your Divorce Mediation,” Diane L. Danois, accessed Oct. 16, 2015

Property Division and Full Financial Disclosure

Property division is often the most contentious part of a divorce. This is true even more so for those situations where one person was the primary breadwinner and controlled the finances. If you were not part of the handling of the family finances when you were married, it can be overwhelming and confusing to figure out what you are entitled to by law and how to go about ensuring that you get a fair settlement.

One of the very first steps is to make sure that you have an accurate picture of the family’s financial standings and assets. Get statements for bank accounts, investments and any retirement accounts. You need to have a full understanding of the finances before you can make a decision on what you want out of the divorce.

During this process, it is important to have someone who can help you look for and identify any hidden assets. When only one person is in control of the finances, it’s much easier to set up unknown financial accounts or to buy physical assets and store them somewhere else. A lawyer can help you during this process.

Once any hidden assets are uncovered and you have a clear picture of your family’s financial standing, you can begin the arbitration process and start working towards a settlement. Even if your situation is fairly cut and dried and you believe that you and your spouse can come to a quick agreement, it’s important to be prepared for the possibility of extended litigation. Divorces don’t usually bring out the best in people, so it’s important to be prepared.

Source: The Globe and Mail, “Will divorce destroy your retirement plan?,” Brenda Bouw,