How Does Family Arbitration Work in BC and Can I Appeal It?

Some separating people would rather have a private decision-maker than wait for a courtroom. Family arbitration is one way to do that, but it works very differently from mediation, because someone else decides the outcome.

This article explains how arbitration is set up in British Columbia, who can act as an arbitrator, what happens to the award and how limited your options are if you are unhappy with it. It is general information, and a lawyer can tell you whether arbitration suits your situation.

This article covers the law of British Columbia.

What family arbitration is

The Family Law Act treats arbitration as one kind of family dispute resolution, which is a process parties use to try to resolve disputed issues outside court. Unlike mediation, where a neutral person helps you reach your own agreement, an arbitrator hears the dispute and makes a decision.

The Act does not impose a general rule that you must try mediation first. Whether arbitration makes sense is usually something you and the other party agree on, and a lawyer advising you is one of the people the Act recognizes as a family dispute resolution professional.

Who can be a family arbitrator

Only an arbitrator qualified as a family dispute resolution professional may conduct a family arbitration. That means the person must be a Law Society of BC member in good standing, or a psychologist or registered social worker who meets a list of requirements.

• For a psychologist or social worker: at least 10 years of family-related practice, 40 hours of arbitration training, 30 hours of family law training and 14 hours of family violence training.
• They must also have annual professional development and liability insurance.

There is a limit on the second group. An arbitrator who qualifies as a psychologist or social worker may act only on parenting arrangements, contact with a child, or child support. Child support is limited to cases where all children are under 19, the payor's annual income is not more than $150,000 and is not self-employment or partnership income, and the table amount applies with straightforward special expenses.

How an arbitration starts

Before starting a family arbitration, the arbitrator must enter a written agreement to arbitrate with the parties. The arbitrator must also give you written confirmation that they meet the qualification requirements.

A professional you consult must also assess whether family violence may be present, and consider how it affects safety and your ability to negotiate a fair agreement. They must discuss the advisability of the different types of family dispute resolution with you. If you have safety concerns, say so early, because they bear on whether arbitration is a good fit.

The award and what happens after

An arbitration award is final and binding on all parties, subject to the Family Law Act. A party can ask within 30 days of receiving the award to correct computational, clerical or typographical errors, unless the parties agree otherwise.

To enforce it, a certified award is filed by attaching it to a requisition in Form F17.3. Once filed in court, the award is enforceable under the Act as if it were a court order.

Can you appeal an award?

Only in limited ways. A party may appeal to the Supreme Court only on a question of law or a question of mixed law and fact, and the time limit to start is 40 days. The court may confirm, amend or set aside the award, or send it back to the arbitrator with its opinion on the legal question.

There is also a separate route. The Supreme Court may set aside or change an award on grounds such as fraud or duress, no reasonable chance to be heard, or the arbitrator acting outside their authority. Disagreeing with the arbitrator's weighing of the facts is not, by itself, an appeal ground, so think carefully before agreeing to arbitrate.

What to do next

• Ask any proposed arbitrator for written confirmation of their qualifications.
• Read the written agreement to arbitrate carefully before signing, including anything about correcting errors.
• Tell your lawyer or the arbitrator about any family violence concerns.
• Diarize the 30-day and 40-day deadlines as soon as you receive an award.
• Talk to a family lawyer before agreeing to arbitrate, since the result is final.

Frequently asked questions