The Supreme Court of Canada in Hryniak v Mauldin, 2014 SCC 7 has given a strong indication of what the parties should consider the form of resolution of their dispute and ensure that the process chosen is proportionate to the issues being decided and the relevant costs involved. The default resolution of matrimonial property issues, child support, spousal support (absent dispute resolution through mediation, Collaborative Practice or Mediation, Mediation/Arbitration) is a full arbitration or full Court of Queen’s Bench trial. The disadvantage of this is clear is that the enormous costs with regard to legal fees for preparation and time for arbitration costs and fees. There are alternatives.
One clear option that is increasing in popularity in Alberta, is the use of the Summary Trial by way of a process in the Court of Queen’s Bench, or by a process through a private arbitrator. A Summary Trial is a trial, but done so in a truncated, abbreviated proportionate fashion. In arbitration, a party may propose, by way of a process, that the matter be heard in a fashion that involves limiting the time the trial takes, providing evidence by way of a sworn Affidavits, as opposed to lengthy cross-examinations in front of the arbitrator or judge. The parties can also agree on which evidence is to be permitted and how it is entered and setting limits with regard to oral evidence, direct and cross-examination. The process can be reinforced with written briefs and limits in brief pages and duration of arguments. With this truncated and streamlined process, one can result in a legally enforceable final decision on all issues between the parties, namely property, child support, spousal support, and parenting plan, if there are children. Possible objections to a Summary Trial would be if the arbitrator felt that it could not decide the disputed question of fact on Affidavit proceedings only or be unjust to decide issues in this summarized way.
The common objection to the use of Summary Trial is that credibility cannot be tested; however, the counterpoint is that often, parties can build in limited examinations from the arbitrator, where a quick assessment of credibility can be determined.
Please contact family law counsel if you wish to look at resolution through a private arbitration through a Summary Trial, as it is an effective way to bring a final decision and resolution to issues between parties.
