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Arbitration is one of several alternative dispute resolution methods available to families and couples looking to resolve disputes while avoiding traditional litigation in court. Given that the federal Divorce Act now places an onus on family law parties and their counsel to consider alternative options to court whenever possible, more and more people are turning to arbitration, mediation, and collaborative family law methods when they are unable to reach an agreement on their own regarding various family law issues.

Since arbitration ends with the arbitrator making a decision that is binding on the parties, some may wonder what their options are if they disagree with the outcome and would like to appeal. Below, we will outline the appeal process as it applies to family arbitration, as clarified by a recent decision by the Alberta Court of Appeal.

How Family Law Arbitration Differs from Other Alternative Dispute Resolution Methods

Before tackling the ability to appeal an arbitration award, it is helpful to first distinguish the arbitration process from other forms of alternative dispute resolution. Mediation, negotiation, and collaborative family law are distinct processes designed to provide a structured setting to enable the parties to reach a mutually agreeable outcome.

In arbitration, however, the parties agree to put the final decision in the hands of the arbitrator, who will decide on the issues after hearing from each party, similar to a trial. However, unlike litigation, arbitration is a private process that can often be completed much faster than a trial. The process requires fewer steps, and scheduling is not subject to the Court’s limited availability.

When Can You Appeal a Family Law Arbitration Decision?

If a trial judge makes an order that one or both parties feel is unfair or based on error, the parties may appeal the decision. However, the ability to appeal an arbitration award is not as simple. When entering into arbitration, both parties are required to sign an Arbitration Agreement, in which the parties can choose whether they will have the ability to appeal and why. The rules governing the arbitration process, and the ability to appeal, are set out in Alberta’s Arbitration Act. In most cases, the Agreement will allow the parties to choose options such as the following:

  1. The decision will be final and not subject to an appeal; or
  2. Either party may appeal the decision for a question of law, fact, or a combination of the two.

This is notably different from other jurisdictions, like Ontario. As set out in section 3(2)(v) of Ontario’s Arbitration Act, the parties to a family law arbitration may not “contract out” of the right to appeal. As in, they cannot make a contract agreeing that there can be no appeal. The ability appeal is required.

If the Arbitration Agreement does not address the right to an appeal, it may only be done with permission from the Court, and then only on a question of law. In deciding whether to grant permission to appeal, the Court must be satisfied that:

  1. The issue at appeal is significant enough to justify an appeal; and
  2. The determination of the question of law that forms the basis for the appeal will significantly impact the parties’ rights.

An appeal from an arbitration decision must be commenced within thirty days of receiving the arbitrator’s final decision.

Alberta’s Appeal Court Sets Out Principles Applicable to Appeals from a Family Arbitration Award

In a recent case heard by the Alberta Court of Appeal, Esfahani v. Samimi, the parties had signed an Arbitration Agreement before entering into family law arbitration to resolve a dispute over several issues, including child support. The Agreement signed by the parties contained a clause allowing them to dictate the right to appeal the arbitration. The options provided an opportunity to appeal on a question of law, a question of fact, or a question of mixed law and fact. In addition, they could also indicate that there would be no right of appeal from the decision.

Neither party selected an option, and as a result, the Agreement was silent on the issue of the right to appeal. Therefore, when the father wanted to appeal the award as it related to child support, he was required to seek leave from the Court.

The Chambers judge ordered that both the application for permission to appeal, as well as the actual appeal itself, be heard on the same day. The mother appealed this order to the Alberta Court of Appeal, claiming that the two matters could not be heard simultaneously.

The Court of Appeal noted that the legislature had purposefully created a system which required a two-pronged process, separating questions of leave from decisions on the merits. To encourage the use of arbitration as a quicker, more efficient, and less costly option than litigation, the Arbitration Act was designed to limit court intervention in the process. Granting permission to appeal should be limited as much as possible. By combining the two hearings, courts ran the risk of rendering the leave application moot. As a result, keeping decisions of leave to appeal separate from the actual hearings on its merits is vital.

The Court then set out the following principles for appealing a family arbitration award in Alberta, as follows:

  1. An appeal does not exist unless permission to appeal is granted.
  2. If parties do not make the required election, permission to appeal is required and will be granted on questions of law only, subject to s 44(3) of the Arbitration Act.
  3. An application for permission to appeal must be heard and decided first and separately, not contemporaneously with the appeal of the arbitral award.

If the parties wish to better preserve their right to appeal without the need to seek permission from the court, it’s important to ensure this option is selected in the Arbitration Agreement.

Experienced Calgary Lawyers Providing Guidance and Representation in Family Mediation and Arbitration Matters

At Mincher Koeman, our family law lawyers have considerable experience advising and advocating for clients in mediation and arbitration. We will adjust our involvement based on each client’s needs, whether simply acting as an off-site advisor or representing their client in person for the duration of the process. We will always provide honest and practical advice with respect to the best method for any family matter to proceed to minimize cost and inconvenience for each of our clients. Please contact our office to make an appointment to discuss your matter with one of our lawyers today by calling us at 403-910-3000 or by contacting us online.

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