Parties are increasingly turning to alternative dispute methods to resolve family disputes, especially in recent months as courts have been largely closed to all but the most urgent matters. Arbitration and mediation have long been ways for parties to resolve their matters while still benefitting from the essential guidance of family law lawyers and decision-makers, but now they have become more essential than ever. Of particular benefit has been the ability for these proceedings to take place remotely, allowing all participants to maintain social distancing guidelines while finalizing the terms of a separation agreement or reaching a conclusion on child or spousal support.
However, despite the convenience and adaptability of these proceedings, there is a lack of consistency with respect to how arbitration decisions are enforced outside of the jurisdiction in which they’re decided. To highlight this point, a recent case out of British Columbia addressed the enforceability of a family law arbitration decision made in Alberta.
In the case at hand, a couple was married in 2013 and then separated two years later. They had one child together. While they were married, the parties resided in Alberta, but after the separation, the wife moved with her son to British Columbia. They entered into arbitration in Alberta and the wife was ultimately awarded costs in that proceeding. The husband moved to BC in 2017.
The couple went before a court in BC to resolve matters relating to parenting, conduct and child support. The court reserved judgment relating to the enforceability of the Alberta costs award, which became the focus of the decision linked above.
The mother had argued the award should be enforced on the basis that it fell within the scope of a “family law dispute” as defined in the British Columbia Family Law Act. However, the court disagreed, adding that it was reluctant to adopt such a broad interpretation, as it “presents a host of concerns, including that the courts in British Columbia could be used to enforce awards made in foreign jurisdictions which have regressive laws and/or do not abide by the rule of law.”
Ultimately, the court refused to enforce the award, stating that, “[i]t is sufficient for me to simply find that the parties’ dispute over those costs is a dispute respecting a matter related to the laws of Alberta, not British Columbia.”
Despite the court’s finding, the judge did point out the existing procedure to enforce an award from another Canadian jurisdiction. Specifically, the applicant would be required to obtain a court order in Alberta giving effect to the arbitration award, and then register and enforce that court order in British Columbia.
Thankfully, not all Canadians are required to go to those same lengths to enforce an arbitration award from another province. Some provinces, including Ontario and Alberta, have legislated the enforceability of arbitration awards granted in other provinces. Under s. 49(1) of Alberta’s Arbitration Act, a person can make an application with an Alberta court, with notice to the person against whom the award is being enforced. The court is obliged to enforce an out-of-province arbitration award unless:
This case shows that while arbitration is an excellent avenue to resolve a family matter efficiently, especially during COVID-19, there may be other considerations if the parties expect to move out of province in the near future. For any party looking to resolve a family dispute, consulting with an experienced family law lawyer is the best way to determine the most appropriate path forward. A good lawyer will make you aware of everything you’ll need to consider, and provide crucial guidance on next steps.
Mincher Koeman is a firm known for thinking outside the box and for obtaining resolution using whatever tools are available to achieve the best outcomes for our clients. Now more than ever is a time for unconventional thinking to move matters towards resolution. Contact our office today by calling us at 403-910-3000 or contact us online.
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