With the September 2020 amendments to British Columbia’s Family Law Act, family arbitration provisions that were once found in the Arbitration Act RSBC 1996 c. 55 are now incorporated into B.C.’s family law legislation and judicial decisions under the new provisions are eagerly welcomed by family law counsel and arbitrators.
The case of Marchetti v. Lane 2021 BCSC 1259 provides guidance to counsel on two important issues. The first is the jurisdiction of a family arbitrator and the second is whether special rules apply to self-represented participants in arbitration.
The parties were married for three years before they separated and had a child who was about to enter kindergarten. The parties engaged an arbitrator to determine which kindergarten the child should attend when the parents could not agree. They entered into a consent order and agreement that indicated that the arbitration would be completed in one day, and the arbitrator would select the kindergarten for their child based on affidavits, written submissions, and oral submissions.
The arbitrator selected a kindergarten and made an award, but also provided a backup kindergarten if for any reason the child would not be accepted at the first-choice kindergarten. The arbitrator’s award favoured the husband’s choice of schools. Unfortunately, the arbitrator’s award could not be implemented at all, as neither kindergarten identified in the award could accommodate the parties’ child.
The parties then set up a further arbitration hearing after the child’s mother filed an application for a variation of the first award based on a material change of circumstances pursuant to s. 47 of the Family Law Act. At this point the child’s father advised he would now be self-represented. The arbitrator advised him in writing of the process, what he was required to file in response to his wife’s material, and that again, the hearing would be based on written material and 15 minutes of oral submissions. The hearing took place and a second award was made; this time the school suggested by the child’s mother was selected.
The father brought an application to the court asking the court to invalidate the second award and enforce the first award. He relied on ss. 19 (1) and 19.18 (1) (d) and (e) of the Family Law Act:
Changing or setting aside determinations
19 (1) On application by a party to a determination made by a parenting coordinator, the court may change or set aside the determination if satisfied that the parenting coordinator
(a) acted outside his or her authority, or(b) made an error of law or of mixed law and fact.
Orders respecting arbitration awards
19.18 (1) On application by a party, the Supreme Court may change or set aside an arbitration award if satisfied that any of the following apply:
(a) there are justifiable doubts as to the arbitrator’s independence or impartiality;
(b) a party was not provided a reasonable opportunity to be heard respecting theaward;
(c) the award was obtained by fraud or duress;
(d) the award deals with a dispute not falling within the terms of the arbitrationagreement or contains a decision on a matter that is beyond the scope of thearbitration agreement;
(e) the arbitrator acted outside the arbitrator’s authority.
The father argued that the arbitrator had exceeded her jurisdiction in making the second award on the following grounds:
-It was outside the arbitrator’s jurisdiction to issue an interim order about a matter that had been finally decided;
-The arbitrator had no jurisdiction to change her final and binding decision;
-Any continuing jurisdiction the arbitrator had only arose under s. 19.15 of the Family Law Act and she did not make a correction or give an interpretation of her first award;
-The first award was final and binding on the parties subject to the right of appeal pursuant to s. 19.19 of the Family Law Act or on application to the Supreme Court pursuant to s. 19.18 of the Family Law Act.
The court found that the arbitrator did not exceed her jurisdiction in making the second award, noting that a jurisdictional issue may arise where an initial award turns out to have been based on inaccurate or incomplete facts, citing Ford Motor Company of Canada Limited v. Sherriff 2012 BCSC891, where an arbitrator corrected an initial award by issuing supplemental reasons based on new evidence.
The court held that in that case the arbitrator had committed arbitral error. However, the arbitrator in this case did not correct her initial award based on new evidence; she entertained a variation of the award based on a material change of circumstances which was entirely legitimate.
The court also found that the second arbitration hearing fell within the parameters of the parties’ agreement to arbitrate while the matter remained extant. The court acknowledged that there may come a point where an arbitrator loses jurisdiction over a matter in respect of a variation but found it had not occurred in this case.
Self-represented participant in arbitration
The father submitted that the second award be vacated based on s. 19.18 (b) of the Family Law Act which permits an award to be set aside on the basis that a party was denied a reasonable opportunity to be heard, a provision that mirrors the tenets of natural justice. In the arbitral context natural justice is satisfied where the arbitrator acts in good faith; exercises procedural fairness; fairly listens to both sides; and gives a fair opportunity to each party to make representations (0927613 B.C. Ltd. v. 0941187 B.C. Ltd. 2015 BCCA 457).
The Court of Appeal also opined that “there are no special rules of procedure for a self-represented party in arbitration beyond the basic procedural requirements for any arbitration” and identified the freedom that the parties to an arbitration have to enumerate the disputes in issue, choose the person to resolve their dispute, and agree on the rules and process.
The father argued that he had not been given the opportunity to oppose the second hearing; that he had not been allowed sufficient time to respond to the application; that the arbitrator had held an ex parte hearing with his wife’s lawyer regarding procedure; and that 15 minutes for oral submissions was insufficient.
The court dismissed his entire application, noting there was no evidence that an ex parte hearing had been conducted and concluded with the following significant points:
-Both parties had characterized the school issue as urgent;
-Both parties agreed that the first hearing would resemble a chambers hearing;
-The first and second hearings were only one month apart;
-The second hearing involved the same legal issues as the first, with the addition of a material change in circumstances, and the facts remained substantially the same.
Georgialee A. Lang is a lawyer and arbitrator in Vancouver and Kelowna, B.C. Lang has practised family law for 32 years, recently focusing primarily on arbitration and appellate litigation. Lang is a writer, speaker and media commentator whose publications range from the Huffington Post to the National Post and The Lawyer’s Daily. For fun she pens a blog (lawdiva.wordpress.com). Connect with her at georgialeelang.com or on Twitter. This article first appeared in The Lawyer’s Daily, a division of LexisNexis Canada.