PRIVATE ALTERNATE DISPUTE RESOLUTION
Family Law in Alberta: Arbitration Agreements
When parties agree to enter the arbitration process, they sign an agreement with the arbitrator which forms a legal and binding contract that cannot be unilaterally terminated at a later date. That agreement, along with the Arbitration Act (Alberta), sets out the authority of the arbitrator and the rules by which the arbitration will be governed. The Calgary Legal Team, a family law firm in Calgary, Alberta is experienced and knowledgeable in these matters.
Parties who are intending to proceed with alternate dispute resolution should ask questions and request modifications to the arbitration agreement where necessary. Should those changes not be agreed to by the opposing party or by the arbitrator, this may be a sign that arbitration is not the best process.
Areas of Concern in Family Law Arbitration Agreements
One of the dangers of family arbitration concerns a party’s right to appeal. In the family litigation process, there are very limited times when a party may give up their right of appeal, such as after a binding judicial dispute resolution or after entering into a consent order. By contrast, giving up partial or full rights of appeal is common in the arbitration process.
In Alberta, many family law arbitrators receive training through the National Family Law Arbitration Course. This standardized training means that family arbitration agreements across Alberta contain similar terms.
The standard mediation/arbitration agreement used in Alberta contains the following rights of appeal from the decision of an arbitrator:
- (a) In accordance with subsection 44 of the Arbitration Act (Alberta); or
- (b) A party may appeal the Award on (choose one more more of the following)
¨ A question of law (meaning the Arbitrator misapplied the law)
¨ A question of fact (meaning the Arbitrator misunderstood a material fact);
¨ A question of mixed fact and law (meaning the Arbitrator correctly applied the law to an incorrect material fact); or
¨ (c) The parties agree there will be no right of appeal from the Arbitrator’s Award.
Option (a) above refers to subsection 44 of the Arbitration Act (Alberta), which states:
- Parties may appeal questions of law, questions of fact and questions of mixed law and fact if the arbitration agreement states that they can.
- If the arbitration agreement does not provide that the parties may appeal an award to the Court of King’s Bench on a question of law, the Court may still permit the appeal. Permission will only be granted if the Court is satisfied that (a) the level of importance to the parties justifies an appeal, and (b) the determination of the question of law at issue will significantly affect the rights of the parties. This means that even if an arbitrator misapplies the law, that error may or may not be appealable.
In Option (b) above, parties are only awarded have full rights of appeal if all three boxes are check off. Otherwise, they will likely be restricted in their ability to appeal to only the areas that were checked off before the process commenced.
If Option (c) is checked, the impact is that parties have no right of appeal, regardless of whether the arbitrator made a reviewable error.
Most parties do not understand enough about appeals to know which appeal option to choose. If you are considering using the alternate dispute resolution process to settle your outstanding family law issues, make sure you understand the impact of choosing each of the appeal options available to you. Family law in Alberta is increasingly complex and if you have questions relating to dispute resolution and arbitration or are already in the process contact our Calgary family law firm, The Calgary Legal Team, for a free consultation.