THE ADVOCATE 33
VOL. 77 PART 1 JANUARY 2019
favour of the need for finality in the litigation process and the conclusion
that the interests of justice would not be served if an extension of time to
appeal were granted.8
ONE PARTY APPEALS, THE OTHER ENFORCES
In Geary v. Geary,9 the B.C. Supreme Court considered the competing goals
of two sections of the Arbitration Act: s. 31, which allows for an appeal to
court, and s. 29, which provides for the court’s enforcement of an arbitration
The parties had agreed to enter into a med/arb process on the basis that
if the matter proceeded to arbitration, the arbitrator would determine his
final award based on the “last best offer” of one of the spouses in the areas
of parenting, property division and child and spousal support.
The parties also agreed in advance that they would continue to equally
co-parent their children, maintaining residences in sufficient proximity to
one another in Victoria to accomplish this end.
After five days of hearings the arbitrator issued his award, which
addressed all issues between the parties. The award included lump sum
spousal support and an equal division of family property, based on the
wife’s last best offer. However, within 24 hours, the husband abandoned his
stated plan to co-parent and moved to Oregon with his new girlfriend, leaving
the full-time care of the children to his spouse.
Shortly thereafter, the husband’s lawyer filed the arbitration award in the
B.C. Supreme Court by way of a requisition that requested it be filed. No
authority was cited for its filing, nor was the purpose of the filing provided.
A month later, the husband’s lawyer filed a petition appealing the arbitrator’s
award, in the form prescribed by the Arbitration Act and pursuant to
s. 31, which reads in part:
(3.1) A party to arbitration in respect of a family law dispute may appeal
to the court on any question of law, or on any question of mixed law
and fact, arising out of the award.
(4) On an appeal to the court, the court may
(a) confirm, amend or set aside the award, or
(b) remit the award to the arbitrator together with the court’s opinion
on the question of law that was the subject of the appeal.
The wife brought an application for child support and s. 7 expenses.
In May 2015 the court pronounced a divorce and made an enforcement
order under s. 29 of the Arbitration Act, which provides:
(1) With leave of the court, an award may be enforced in the same manner
as a judgment or order of the court to the same effect, and judgment
may be entered in the terms of the award.