In Nordine v. Nordine 2025 BCSC 829, the British Columbia Supreme Court recently considered an appeal to strike a Notice of Appeal from a family arbitration award. The issue was whether the arbitrator’s “interpretation” of the award, pursuant to s. 19.15 of the Family Law Act, released months after the initial award, allowed a party to bring an appeal of that interpretation award despite the 40-day appeal limitation period being long passed.
The arbitrator dealt with financial issues including division of the family home, a determination of the value of the respondent’s professional corporation and two related accounts receivable owed to the company, and Guideline income assessments of each party.
The arbitrator handed down her award on Dec. 28, 2022, with the respondent receiving a copy of the award nine days later. On Feb. 15, 2023, the respondent filed a Notice of Application appealing the award with respect to the determination of his Guideline income and the matter of distributive taxes in respect of his corporation.
Both parties agreed that the respondent’s filing of a Notice of Application was in error, as the court noted that the proper form to appeal an arbitration award is Form 79, as determined in Pearce v. Napier, 2023 BCSC 1295, where the court stated that an incorrect document was a mere irregularity, not a nullity and did not warrant striking the appeal.
It is, of course, trite law that Rule 21-5 (2) allows a court to treat a failure to comply with the Rules as an irregularity. The Pearce v. Napier court also remarked that the Supreme Court Family Rules do not prescribe the content of a Notice of Appeal and do not provide stringent rules for the conduct of an appeal.
On March 20, 2023, the respondent filed a further application seeking to extend the period of time to file a proper notice of appeal, which was opposed by the claimant, who candidly admitted that her position was not likely sustainable, but instead she wished the court to limit the contents of the revised appeal document to the grounds of appeal identified in the Notice of Application filed on Feb.15, 2023.
Justice Shelley Fitzpatrick granted the extension of time to file a correct appeal document and ruled that the grounds of appeal must mirror the grounds contained in the original filing. On April 13, 2023, prior to the extension deadline, the respondent filed a corrected Notice of Appeal but took no steps to advance the appeal.
However, on April 3, 2023, the respondent wrote to the arbitrator requesting that she provide clarification of the award in respect of the interpretation of the accounts receivable owed to the company. On April 11, 2023, the claimant submitted her written position to the arbitrator on the issue raised by the respondent and on May 24, 2023, the arbitrator responded, advising the parties that the 30-day limitation period in respect of a “clarification” pursuant to s. 19.15(1)(b) of the Family Law Act had expired.
The arbitrator suggested that unless the parties agreed on “another timeframe,” the issue would have to be resolved between the parties and that the “award speaks for itself.” She also commented that since the respondent was appealing the award, the issue might be better dealt with by the court.
The parties continued to negotiate and eventually sent a joint written submission to the arbitrator on June 21, 2023, requesting her interpretation of the issue surrounding the corporate receivables. She responded on July 8, 2023, pointing out that a clarification request must be made within 30 days of the release of the award, but s. 19.15(4) permitted her to extend the time, which she did, but then rejected the respondent’s interpretation of the award, with a full explanation of her reasoning.
After receipt of the second award, the respondent filed a fresh appeal of the clarification award, citing a new ground of appeal, despite the order of Justice Fitzpatrick. The claimant promptly filed an application to strike the new appeal pursuant to Rule 11-1(1)(a), (b),(c) or (d) or alternatively, ss. 222 or 223 of the Family Law Act, because it was filed well past the 40-day time limitation for launching an appeal and was contrary to Justice Fitzpatrick’s earlier order.
The respondent countered by saying that the July 2023 interpretation award reset the 40-day limitation period, based on s. 19.15(2), which states that an interpretation is “part of the award.” He also asserted that Justice Fitzpatrick’s order did not apply to the July 2023 award.
In response, the claimant submitted that the language of s. 19.15(2) does indeed incorporate the interpretation of an award into the award but does not change the 40-day limitation period. She also relied on Pearce v. Napier, 2024 BCSC 1655, which held that a court has no discretion to extend the time to appeal an arbitration award, unlike the provision found in s. 233 of the Family Law Act, which permits a court to extend the time to appeal a Provincial Court order.
Additionally, the claimant submitted that if the legislature had intended the appeal period to begin again with the release of a clarification or interpretation order it would have explicitly provided for that, which would extend the process in an untenable way and could open the door to spurious requests for clarification.
Ultimately, the court acceded to the claimant’s application to strike the Notice of Appeal, making the following observations:
1. The predecessor legislation for family law arbitration was the Commercial Arbitration Act, which did permit a court to extend the time to file an appeal from an arbitration award, which buttressed the claimant’s argument that had that been a desirable provision it would have been included in the Family Law Act provisions on arbitration;
2. The inclusion of arbitration provisions in the Family Law Act underscored the legislators’ intent to imbue the underlying policy goals of the Family Law Act into the arbitration process, most importantly, the emphasis on final resolutions outside of the court process;
3. The 30-day time limit to request clarification or interpretation of an award was intended to ensure that the request could be dealt with prior to the expiration of the 40-day appeal period found in the Act;
4. The interpretation of an award is a non-substantive clarification and is not meant to change the decision or introduce new reasoning for a particular provision of the award and thus, a party’s grounds of appeal could not be amended as a result of the interpretation;
5. The filing of a fresh appeal in July 2023 was also barred by the order of Justice Fitzpatrick.
The court awarded costs to the claimant, declining the respondent’s suggestion that the novel and difficult nature of the issue should result in each party bearing their own costs, although this was a first instance appeal of a unique issue.
** This article was first published in LAW360, a division of LexisNexis Canada.