32 THE ADVOCATE
VOL. 77 PART 1 JANUARY 2019
place in the province. For that reason, it is difficult to estimate the current
popularity of arbitration or med/arb.
However, based on anecdotal information, it appears that family law arbitration
has been slow to gain acceptance within the family bar for a variety of
reasons, the primary one being the profession’s aversion to radical change.
The move from a public judicial model to a private dispute resolution paradigm
is a large leap for many family law lawyers. The benefits of private arbitration
have been extolled in numerous articles written by the author and by
others, so it seems that education and information have not achieved the
intended effect of encouraging the use of family law arbitration.
This article surveys the case law arising from family law arbitration in
B.C. over the past five years and concludes with a summary of principles
established by our courts.
APPEALING AN AWARD
In Patenaude v. Patenaude,5 the B.C. Supreme Court considered an application
to extend the time to appeal a family law arbitration award. By statute,
an appeal of an arbitrator’s award must be brought within 60 days after the
parties have been notified of the award and its terms.6
The arbitrator issued her award on December 21, 2015 and amended it on
March 13, 2016. Typographical corrections to the award were made on April 18.
A hearing on costs was conducted before the arbitrator on April 5, 2016, and a
costs award decision was released on April 11 and corrected on April 18.
The claimant filed her petition to appeal the award 183 days after the
amended award was released and set a hearing date without consulting her
former spouse. The application was adjourned to permit the claimant to
bring evidence to the court of the reasons her appeal was not filed within
the prescribed time limit.
A year passed and the claimant failed to deliver an affidavit explaining
her delay in filing her appeal, so the respondent brought an application to
have her appeal petition dismissed. Shortly thereafter, the claimant filed an
affidavit citing health issues, financial issues and family responsibilities as
reasons for failing to meet the appeal deadline.
The court reviewed the test for an extension as laid down in Davies v.
Canadian Imperial Bank of Commerce7 and dismissed the claimant’s petition,
The specialized nature of mediation and arbitration and the fact that it is
intended to be an alternate dispute mechanism rather than one more
layer of litigation, coupled with the lack of merit in the proposed appeal
and the absence of clear indicia that the claimant had a bona fides intention
to appeal the arbitration award within the appeal period militate in