PRIVATE ALTERNATE DISPUTE RESOLUTION
Family Law in Alberta: Arbitration Agreements – No Power to Hold Parties in Contempt
This blog continues our discussion of some of the potential pitfalls of choosing the arbitration route rather than using the court system to resolve family law issues. The experts here at The Calgary Legal Team in Calgary, Alberta can assist you in navigating the complexities of family law mediation and arbitration.
Areas of Concern in Family Law Arbitration
Although arbitrators hold quasi-judicial roles, they are not judges and their boardrooms are not Courts. Since their authority is granted to them in the mediation/arbitration agreement and the Arbitration Act (Alberta), they do not have the same breadth of power as a Court to grant and enforce relief.
In Alberta, arbitrators may:
- order that specific actions be taken by the parties;
- issue an injunction to prevent the parties from doing something; and
- make monetary awards, including costs awards to deter behaviour.
However, unlike a Justice of the Court of King’s Bench, an arbitrator cannot hold a party in contempt because there is no “court” for the party to be in contempt of. Where this becomes problematic is when the parties have a high-conflict post-separation relationship that results in repeated breaches of arbitration awards.
Rule 10.52 of the Alberta Rules of Court sets out when the Court may hold an individual in contempt. The references to “Court” are intended to specify the Court of King’s Bench and Alberta Court of Appeal only.
Declaration of civil contempt
10.52(3) A judge may declare a person to be in civil contempt of Court if
(a) the person, without reasonable excuse,
(i) does not comply with an order, other than an order to pay money, that has been served in accordance with the rules for service of commencement documents or of which the person has actual knowledge,…
As set out in Rule 10.52(3), there is no mechanism for declaring individuals in contempt of an arbitration award prior to it being converted to a court order.
Rule 10.53 of the Alberta Rules of Court sets out the potential punishments that may be imposed by the Court of King’s Bench after a finding of contempt of court:
Punishment for civil contempt of Court
10.53(1) Every person declared to be in civil contempt of Court is liable to any one or more of the following penalties or sanctions in the discretion of a judge:
(a) imprisonment until the person has purged the person’s contempt;
(b) imprisonment for not more than 2 years;
(c) a fine and, in default of paying the fine, imprisonment for not more than 6 months;
(d) if the person is a party to an action, application or proceeding, an order that
(i) all or part of a commencement document, affidavit or pleading be struck out,
(ii) an action or an application be stayed,
(iii) a claim, action, defence, application or proceeding be dismissed, or judgment be entered or an order be made, or
(iv) a record or evidence be prohibited from being used or entered in an application, proceeding or at trial.
(2) The Court may also make a costs award against a person declared to be in civil contempt of Court.
Parties who wish to bring an application for contempt of court for failure to follow an arbitration award must take the preliminary step of filing an application to turn the arbitration award into a Court Order, a step which may only be taken if the arbitration award is not under appeal. If the arbitration award is under appeal, the party is left without a court-enforceable award, and without any ability to bring an application for contempt for failing to follow the court-enforced award, pending the appeal. In high conflict post-separation relationships, this may allow the “bad actor” to refuse to follow arbitration awards that are under appeal with the knowledge that the remedies available to the other party may be limited during that time.
Contact us for a free consultation with the experienced Alberta family lawyers at The Calgary Legal Team.