How Family Arbitration Works for Separating Couples in Alberta

Some separating couples want a decision-maker who is not a judge, perhaps for privacy or to avoid waiting for a court date. Arbitration is one way to do that, and it is different from both mediation and court.

This article explains the basics and what Alberta's Arbitration Act says about enforcing and challenging an award. Family arbitration can involve details beyond what is covered here, so speak with a lawyer before you sign an arbitration agreement.

This article covers the law of Alberta.

What arbitration is and how it differs from mediation

In arbitration, you and the other person agree to have a neutral arbitrator hear both sides and make a decision. In mediation, a neutral person helps you reach your own agreement but does not decide for you.

The Court of King's Bench lists arbitration among the family dispute resolution services available, alongside mediation, parenting apps, collaborative professionals and parenting coordination.

Where arbitration fits with the court process

Under the federal Divorce Act, parties to a divorce proceeding must, to the extent appropriate, try to resolve the matters that may be the subject of an order through a family dispute resolution process. This is a duty to try, not a requirement to complete mediation. A legal adviser helping with a divorce must also generally encourage you to try to resolve matters this way, unless it would clearly not be appropriate.

Some steps still involve the court. The Court of King's Bench has sole jurisdiction over divorce and the division of property in Alberta. Whether and how an arbitrator can deal with each issue in your case depends on the facts and the agreement you sign, so confirm this with a lawyer.

Where the Family Justice Strategy applies, parties who disagree on any issue must have attempted alternative dispute resolution within the past 6 months before filing a family law court application. Whether arbitration would meet that requirement in your case is worth confirming.

Is the result binding?

An arbitration award is not just a suggestion. Under the Arbitration Act, a person entitled to enforce an award may apply to the court on notice to the person against whom enforcement is sought.

The court must enforce an Alberta award unless one of these applies:

• The 30-day appeal or set-aside period has not elapsed.
• An appeal or set-aside application is pending.
• The award has been set aside.

Enforcement must be applied for within 2 years after receiving the award, or 2 years after appeal periods expire, whichever is later.

Appealing or challenging an award

A party may appeal an award on law, fact or mixed law and fact if the arbitration agreement provides for it. Otherwise, a party may appeal on a question of law only with the court's permission.

Appeals and set-aside applications must be commenced within 30 days after receiving the award. A further appeal to the Court of Appeal needs a Court of Appeal justice's permission.

Because appeal rights can depend on what your arbitration agreement says, read it closely, and have a lawyer review it before you sign.

What to do next

Arbitration can feel simpler than court, but a binding decision is hard to undo. Take time before choosing it.

• List the issues you disagree on and whether each could be decided by an arbitrator.
• Ask a lawyer to review the arbitration agreement, including appeal rights, before you sign.
• Ask about the arbitrator's background and how costs are shared, as these vary.
• Consider whether mediation might resolve some issues first.
• Keep any award and the date you received it, because the 30-day period to appeal or apply to set aside runs from receipt, and enforcement must be applied for within 2 years after receiving the award or 2 years after the appeal periods expire, whichever is later.
• If safety is a concern, contact 211, which is available 24/7.

Frequently asked questions