Frequently Asked
Questions

Frequently Asked Questions

This page only provides very general information. Each arbitrator has slightly different procedures and preferences, and many procedures can be modified by agreement or by the arbitrator.

Arbitrators will discuss their rates at the initial phone call or meeting. They typically either charge per day of hearing or per hour.

The rigid procedural requirements to get to trial can result in an enormous cost. Because trials often don't occur for years, spouses will often file several court applications for interim (temporary) orders setting parenting arrangements, child support, spousal support, and others, which can lead to enormous legal costs simply to decide on a temporary arrangement until trial. If a judge is not experienced in family law, more time is spent explaining the law to them, and errors can lead to very costly appeals.

A quick resolution with an arbitrator experienced in family law can bypass these issues and lead to a much lower cost, especially where each side agrees to relaxed procedures.

The Arbitration Act (Alberta) allows for a great deal of flexibility where appropriate. You can craft nearly every aspect of it, such as who's present, the length of the hearing, and the use of experts. The cost can be reduced by not requiring sworn statements, limiting the number of witnesses or finding a more efficient way to admit their evidence, not requiring a transcript, determining what information the arbitrator reviews, using an arbitrator-appointed or shared expert. Flexibility also allows us to roll an issue to the next session, to continue with the same arbitrator rather than being in front of a new judge who has to learn the facts each court appearance, arbitrations can occur by conference call, and there are very creative options such as final offer / best offer arbitration (where each side presents their final/best offer and the arbitrator must choose one, without mixing or matching).

Spouses can agree to any cost sharing arrangement. Spouses will ordinarily each be responsible for half of the cost of arbitration. Sometimes one spouse will pay the up-front cost, and the other spouse's share will be adjusted for against the payment awarded. Arbitrators are also empowered to reallocate the cost and/or order cost penalties as part of the Arbitration Award.

Arbitrations can be with or without lawyers. Whether you hire a lawyer to represent you will depend largely upon whether you're comfortable speaking up for yourself, and organizing the relevant information for the arbitrator. However, arbitrators can only provide basic legal information, and identify obvious documentation/information which they need, they are unable to provide legal advice. Arbitrations without lawyers may require additional initial meetings(s) or day(s) of hearing. We recommend obtaining independent legal advice.

Procedural and evidence requirements are usually addressed at the initial planning conference call or meeting. Arbitrators will often seek agreement on procedural terms, failing which arbitrators are empowered to make procedural decisions and determine which evidence will be admitted.

Family law arbitrators can decide property division, parenting arrangements, custody, child support, spousal/partner support, validity of agreements, relocation, and no contact terms.

Family law arbitrators cannot grant divorces. Once the arbitration is complete, the divorce package is couriered to the Court for processing, without anyone needing to appear in person. For simple divorces, organizations such as Student Legal Services host Do-Your-Own-Divorce Clinics to help divorce spouses who don't have lawyers.

To use the Maintenance Enforcement Program to collect child or spousal/partner support, you will need to convert the Arbitration Award into a Court Order or MEP Agreement. There is a simplified process for doing so.

Arbitrators can't imprison a person. If there is non-compliance, a court application would need to be brought (as would be the case if a person breached a court order).

There are no requirements to become an arbitrator. A law degree is not needed to be an arbitrator. Instead, organizations such as the ADR Institute of Canada (ADRIC) offer training and certifications, such as the Qualified Arbitrator (Q.Arb) and Chartered Arbitrator (C.Arb) designations. You can ask your proposed arbitrator what arbitration training they have completed. We recommend that your arbitrator be an experienced family law lawyer with arbitration training.

Unless agreed otherwise, arbitrators decide disputes in accordance with existing laws of the appropriate jurisdiction.

Relatively simple court applications can be made to enforce Arbitration Awards. Subject to an appeal, application to set aside, or lack of jurisdiction to order the remedy awarded, courts are required to enforce Arbitration Awards. The Arbitration Act (Alberta) provides that except in very rare circumstances (such as lack of sufficient mental capacity when the arbitration agreement was signed), courts must enforce the Arbitration Award, the legislation does not permit courts to refuse to do so merely because they don't like the decision.

Within 30 days of issuing the Arbitrator Award, either side can ask the arbitrator to clarify, make further awards to deal with unaddressed incidental issues, or correct the Award, where there has been a typographical error, error of calculation, similar error, or to correct an injustice caused by an oversight on the part of the arbitrator. This can be as simple as making a request to the arbitrator, unlike the very expensive process in place to challenge court orders.

Whether an Arbitration Award can be appealed to the Court will depend on the terms of the Arbitration Agreement. Arbitration Awards are typically very difficult to appeal. It's generally not sufficient that a judge may have decided differently. In extreme circumstances such as a spouse lacking mental capacity when signing the Arbitration Agreement, Arbitration Awards can be set aside by the Court.

Yes, arbitrators are empowered to make interim (temporary) awards, until a more complete hearing can be held. That said, given how quickly arbitration can lead to a final decision, interim decisions are relatively uncommon.

Both spouses must agree to arbitration, it's a voluntary process. However, once there is a valid arbitration agreement, save for rare exceptions, courts must order that the arbitration continue.

Yes, you can switch to arbitration at any time.

Yes, arbitration can be terminated with the consent of both spouses. The arbitrator can record the terms of settlement in the form of an Arbitration Award.

Depending on the circumstances and available resources, spouses might hire experts such as psychologists, chartered business valuators, tax specialists, accountants, actuaries, chartered land appraisers, or personal property appraisers. Each side has the right to submit the evidence of their own experts. Where expert evidence would be beneficial, arbitrators can appoint experts.

A benefit of arbitration over trials is that time-consuming interviews of each witness are not necessary. However, when a witness is required, witnesses may be served with notices to attend arbitration (section 29 of the Arbitration Act (Alberta)).

Med-Arb is an optional arrangement which attempts to first resolve the dispute by mediation (an independent person facilitating settlement), failing which arbitration commences (an independent person makes a decision). Mediation may only be used during the arbitration with the consent of each party. Some arbitrators will employ a separate mediator, to reduce the impact of confidential information.

Due to the prohibitive cost, spouses will usually agree not to hire a Court Reporter to transcribe the arbitration hearings. Arbitrators may record or take notes for their own purposes.

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DISCLAIMER: The information herein is not legal advice or opinions. This website is merely a directory of arbitrators with general information. This website, Kenneth J. Proudman, and Barr Picard Law are not responsible for the actions or omissions of the lawyers listed in its directory. By using this website, you agree to release the Kenneth J. Proudman, Barr Picard Law, their partners, agents, and employees from all present and future claims and liability, including liability arising from any negligence.