Arbitration is rarely used in family law, probably because lawyers aren't used to it and probably lawyers believe that if they have to have somebody impose a decision in a case, it might as well be a judge. Arbitration is most often used in a corporate or employment law context.

Arbitration allows a couple to hand-pick the person who will make a decision about the issues they cannot agree on. More importantly, it also allows a couple to pick the rules that will apply to the arbitration process and the arbitrator's decision. Whatever rules the couple choose, however, cannot be contrary to the usual rules of family law, and the result of the arbitration process must be reasonable under the usual rules of family law.

The Process

When a couple agree to arbitrate their dispute — someone can't be forced to enter into arbitration, it has to be voluntary — they first pick their arbitrator and they pick their rules. Most of the time, the rules people choose are the guidelines laid out in the Divorce Act the Family Relations Act or in the Rules of Court.

Next, the couple will exchange documents and information that are relevant to the process. If child support is an issue, for example, documents like financial statements might be prepared and documents like income tax returns and T4 slips might be exchanged. If a couple cannot agree on how a child should be cared for, they might hire a psychologist to prepare an assessment, usually called a "custody and access report" or a "section 15 report."

Once the documents have been exchanged and the experts' reports prepared, the parties then attend one or more meetings with the arbitrator. These meetings are usually a lot less formal that court hearings, and there can be as much flexibility to the process as the parties will allow. The meetings are sort of a cross between the mediation process and the hearing process, and each party essentially attempts to convince the arbitrator and the other side that their proposed way of settling the dispute is the best solution for everyone.

At the end of the meetings, the arbitrator will make a decision about how the issues will be resolved. The decision can be put into the form of an order which the parties agree a judge will make, or they can be put into the form of a separation agreement.

If a party is unhappy with the arbitrator's decision, the decision can be appealed in court. Unless that happens, the parties will be bound by the arbitrator's decision.

The Commercial Arbitration Act

The arbitration of family law disputes in British Columbia is governed by the provincial Commercial Arbitration Act. The relevant highlights of the act are:

• Under s. 1, an "arbitrator" is defined as a person who resolves a dispute referred to him or her by the parties.
• The act applies, under s. 2, to commercial arbitration agreements and "any other arbitration agreement," such as family law arbitration agreements.
• Under s. 1, an "arbitration agreement" is defined as an agreement between two or more persons to have their dispute resolved by arbitration.
• Section 9 provides that an arbitrator can make interim awards on any subject at issue, such as interim awards regarding the care and control of children, child support and spousal support).
• According to s. 14, the final decision of an arbitrator is binding on the parties, subject to the reversal of the arbitrator's decision if the process or decision is proceduraly defective, under s. 30, or if the decision is appealed to the court, under s. 31.
• Under s. 23, "An arbitrator must adjudicate the matter before the arbitrator by reference to law unless the parties, as a term of an agreement referred to in section 35, agree that the matter in dispute may be decided on equitable grounds, grounds of conscience or some other basis."

Faith-Based Arbitration

As you can see from the Commercial Arbitration Act, the parties can choose their own rules. Nothing in the act says that those rules cannot be religious in nature.

Judaism and Islam each have religious law that can apply to family law issues for members of those faiths. Members of the orthodox Jewish community may use the Beth Din to settle personal disputes. Muslims can use Sharia law to the same end. Despite the rules a couple might choose, the result must not be contrary to the laws of British Columbia. An award of child support, for example, cannot differ from what the Child Support Guidelines require.

Note that if the parties to faith-based arbitration wish to obtain a divorce, they must still initiate a action in the Supreme Court of British Columbia for an order for their divorce. A religious divorce, such as the Jewish Get, is not a legal divorce.

Parenting Coordination

The Commercial Arbitration Act will also apply to parenting coordination. In this dispute resolution process, the arbitrator — called a parenting coordinator — tries to first settle a parenting dispute as a mediator. If the coordinator cannot bring the parents to an agreement, the coordinator uses his or her authority as an arbitrator to decide what should happen.

The parenting coordinator's authority comes from the arbitration agreement the parents will sign, in this case called a parenting coordination agreement. The coordinator's decision is called an "award."

As with faith-based arbitration, or any other kind of family law arbitration for that matter, the arbitrator cannot make decisions that are contrary to the law in British Columbia, including the federal Divorce Act and the provincial Family Relations Act. The court will not uphold awards that are contrary to the law in this province.

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Only a few circumstances will justify the use of arbitration over mediation or litigation. Typically, a couple will only resort to arbitration if:

1. they wish the laws of their religion to apply to the proceedings; or,
2. theire positions are too far apart to make mediation a reasonable choice and must have a decision made for them, but do not want to go to the expense, anxiety and acrimony typically involved in litigation.

There are, however, couples who cannot ever seem to agree on anything, even after they've gone through multiple interim applications, a trial and repeated applications following trial. These people are always at each other's throats, and nothing ever seems to go right. They keep going back to court long after their ability to pay for a lawyer is exhausted, and argue about little things, like paying child support a day late, returning the child without her coat, or being overly rigid about an access schedule.

People like this need an arbitrator, and should seriously think about hiring someone to decide these issues for them rather than going back to court again and again. This kind of arbitration process, called "ad hoc parenting and access arbitration," allows parents to get a quick decision on a dispute, sometimes within the hour, without having to go the time and expense of drafting an affidavit, filing an application and appearing in court.

This kind of arbitration is very simple. When a dispute arises, one of the parents calls the arbitrator and explains the situation. The arbitrator contacts the other parent and gets his or her side of the story. The arbitrator will then get any more information that might be required from either parent and makes a decision about the conflict. The arbitration agreement the parents will sign sets out the rules about how these decisions are to be treated and what happens if they are breached.

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