Pei-Shing B. Wang, Toronto Family Law Lawyer
Toronto Family Law Lawyer Pei-Shing B. Wang
Arbitration is a form of alternative dispute resolution (ADR) in which the parties to a dispute seek a solution outside the court system. In ADR, the parties refer the matter to one or more persons known as arbitrators, whose decision is legally binding.
In Ontario, arbitration in family law matters is governed under two statutes: the Family Law Act* and the Arbitration Act.+ If a conflict arises between the two pieces of legislation, the Family Law Act prevails.^
Under the law, a family law arbitration must be conducted exclusively in accordance with the laws of Ontario or another jurisdiction, or it will not be recognized as legally binding.%&
The arbitrators conducting family arbitration must have received training approved by the Attorney General. Among their responsibilities is separate screening for power imbalance and domestic violence.@
The arbitrators may determine the procedure of the arbitration as they see fit, in accordance with the legislation. The arbitration may be done in writing or orally.
Although a family arbitration is legally binding, the law specifically provides that, with the permission of the court, a party may appeal a family arbitration award on a question of law. The court may set aside an arbitration award on several grounds.** For example, the court may set an award aside because of procedural flaws.
Personally, I am not a big fan of family law arbitration. Often the parties end up in court anyway, by way of appeal. Although most appeals are dismissed, the process leads to significantly increased costs and bitterness between the parties.
*R.S.O. 1990, c. F3
+S.O. 1997, c. 17
^Family Law Act, supra, s. 59.1
% Ibid.
& Arbitration Act, supra, s. 32(4)
@ Family Arbitration, O. Reg. 134/07, ss. 2, 3
** Arbitration Act, supra, s. 46
This blog is provided for educational purposes and for your reference. It is not intended as legal advice and should not be regarded as such. The law may have changed since the publication of this article.
B.C. Court of Appeal Denies Donor Offspring’s Right to Know Her Genetic Father
Sperm donor offspring seeking to identify their fathers face legal obstacles in Canada. (Photo Courtesy of SCX; all rights reserved.)
A B.C. woman, conceived using sperm from an anonymous donor, does not have the right to know the identity of her biological father, the B.C. Court of Appeal determined last week.
Olivia Pratten was conceived through artificial insemination with sperm from an anonymous sperm donor in 1981. At that time, her mother and her father agreed that the donor would remain anonymous. Fast-forward to 2011. Ms. Pratten, like many donor offspring, knew nothing about half of her genetic makeup. She worried about her health and the health of her children, and whether she may inadvertently form a romantic relationship with a half-sibling.
Unlike adopted children, donor offspring enjoy no provincial legal mandate to preserve their biological origins and family history. Ms. Pratten couldn’t understand why the province recognizes the similar needs of adoptees but leaves donor offspring like her in the dark. She decided to take this matter to court, claiming that the situation as it stands is both discriminatory and unconstitutional.*
The respondent, the Attorney General of British Columbia, stated that while Ms. Pratten’s cause is sympathetic, the practice of artificial insemination with sperm from anonymous donors now allows the prospective mothers to obtain detailed social and medical information even if the donor remains anonymous.
At trial, the judge received evidence from donor offspring, medical experts, and academics. Their testimony presented the concerns and factual shortcomings a donor offspring is faced with when he or she does not have access to the donor’s identity and medical history. The judge also reviewed the history of government studies and legislative responses. In conclusion, the trial judge found the existing legal regime unconstitutional and gave a suspended declaration that the challenged legislation was of no force and effect.
The B.C. Attorney General then appealed. After accepting the facts set out by the trial judge (which have not been challenged), the Court of Appeal took a different point of view and reversed the decision, holding that there is no constitutional right to know one’s past.
In particular, the Adoption Act+ in B.C. has a long pedigree, traceable back to 1920. in 1996, the legislature enacted amendments to the Act to allow adult adoptees qualified access to their registration at birth, thereby providing insights into their genetic background. The Court of Appeal was of the view that these access-to-information provisions are ameliorative programs protected under the Constitution, not subject to a Constitutional challenge.
Ms. Pratten has said she will now take her case to the Supreme Court of Canada.
*Pratten v. British Columbia (Attorney General), 2012 BCCA 480, rev’g 2011 BCSC 656 (CanLII)
+R.S.B.C. 1996, c5
This blog is provided for educational purposes and for your reference. It is not intended as legal advice and should not be regarded as such. The law may have changed since the publication of this article.