Government questions surrounding the application of Muslim or Sharia law in legal family arbitration has women's groups calling for the removal of such practices from the 1991 Arbitration Act. The Canadian Council of Muslim Women is leading the dispute, saying all Ontarians should be under one law (in this case, the Family Law Act), and that allowing Sharia law will infringe upon women's equality in custody battles, property disputes and other marriage separation matters.
"Family matters are far too great to allow for the privatization of laws surrounding it, and for alternative, powerful systems to be created," said Alia Hogben, executive director of CCMW. "Why can't there be one law for all people?"
Although the Arbitration Act has enabled the practice of Muslim law tribunals since 1991 — a clause in the act allows religious law from virtually any country to be used in the arbitration process — this provision gained notoriety in December, when a report was released from Marion Boyd, former attorney general of Ontario. The government commissioned a review of the arbitration process and its impact on vulnerable people. Boyd was asked to determine if the system offers sufficient protection to such persons and if new safeguards should be adopted. The review was initiated when public concerns were raised regarding religious law in arbitration.
Boyd is in favour of the process, but with the addition of numerous recommendations. She admits that "alternative dispute resolution may provide a venue for continued abuse after the breakdown of a relationship, and therefore, safeguards must be in place."
Hogben said the act currently leaves many issues open to interpretation. Sharia law varies depending where it is exercised, and it is unclear what form would be used in Ontario. Although the very root of arbitration demands consenting individuals who seek the alternative measure voluntarily, Hogben said there's no guarantee that Muslim women are entering into it on their own free will. "It is discriminating against us," she said. "You have to understand that we're believers, and this law is part of our religion. We're also committed to our communities, and we don't like going against our families." Because of this, Hogben explained, it may be difficult for a woman to resist the process if her friends, family and more socially powerful husband are pressuring her to accept it.
Boyd's report recognizes this complexity, as well as the difficulties a woman may have who is in an abusive relationship, has a disability, doesn't speak the language, or if newly immigrated doesn't know her rights under Canadian law. It is because of these vulnerabilities that Boyd recommends several changes and additions to the Arbitration and Family Law acts. (See sidebar.)
The Islamic Institute for Civil Justice is the main proponent of Muslim law tribunals. "Muslim personal law is a part of the religious structure of Islam and no non-Muslim government has the right to interfere with it," says their web site. "Muslims living under non-Muslim systems are, as such, required to make every possible effort for the recognition of this principle by their governments. They may also take steps to set up a separate arrangement of their own."
The web site also explains that being a "good Muslim" requires following the law of their faith. Since Canada has its own laws that vary from Sharia, Muslims must try to incorporate their laws into the existing structures, although they recognize being ultimately subject to the laws of the land. They say the negative media coverage and opposition they face is a symptom of "sheer Islamophobia and typical slanderous rhetoric of uninformed, biased Western propaganda."
"If we thought our religious freedom was being impeded, we'd be in front of the crowd disputing it. But this has nothing to do with religious freedom," argued Hogben. "Is Ontario family law against our religion? No. Does it tell us we can't practice our religion? No. Many Muslims say we should be able to use our laws in this country. But hang on," she continued. "We came to Canada, and have been living here for a hundred years. Nowhere in Islam is there an expectation to follow our own law; the tradition is to follow the law of the country."
Quebec recently ruled that religious law is not allowed in family matters, saying it is of public concern and of public interest and therefore, can't be dealt with privately. British Colombia also rejected the practice. But Ontario is still trying to figure out what it should do. Brendan Crawley, communications representative at the Ministry of the Attorney General, said the Boyd report is still being reviewed, and it is not certain when a decision will be reached.
Crawley confirmed that Sharia law has been available to Ontarians since 1991, and although it is difficult to tell to what extent it has already been in use, there is a precedent. "It's always been available to people of all faiths to conduct arbitration according to the principles of those faiths," he said. "We've heard anecdotally that Muslims, Christians and Jewish sects have used it in the past, so in that sense, faith-based arbitration is nothing new."
Arbitration is often used in commercial matters, and more recently in settling family law disputes that would be costly and time-consuming through the normal court process. Arbitration can be used to settle custody disputes, property claims and spousal support. It cannot be used to change marital status, or in criminal matters. In custody battles, although the decisions of the arbitration process are binding, Ontario courts reserve the right to act in the best interest of the child, regardless of what the arbitrator decides.
Sandra Demson, a family lawyer in Toronto and member of Rosedale, said mediation and arbitration can actually be a positive experience for women who suffered from abuse or power differentials in their marriages. She said it is a form of "collaborative law" where both parties and their lawyers (if using) discuss all the issues in an open format. She said it may be the first time an abused woman was listened to respectfully. Women may also feel more confident in a system that takes her beliefs into account.
"The family law bar does not agree with groups who are saying no to arbitration," said Demson. "We're in favour of it, but with certain protections. We have to ensure Canada's charter and equal rights are respected."
The Boyd report states that the active parties can choose the arbitrator they wish, who must be neutral to both parties — although this can be changed if both parties agree. Once a decision is made, the Ontario court can enforce the decision if one of the parties refuses to comply. There is an appeals process, but it can be tricky for a court judge to make a decision about a religious law he knows little or nothing about.
Although Boyd's conclusions centre on the fact that "tolerance and accommodation of minority groups who seek to engage in alternative dispute resolution must be balanced against a firm commitment to individual autonomy," Hogben maintains that "this is not about multiculturalism." She said religious arbitration is a slippery slope along the road to women's equality, and sets the stage for other faiths to use passages in holy texts to discriminate against women. — AM
For more information, visit:
www.ccmw.com
www.attorneygeneral.jus.gov.on.ca
muslim-canada.org/justice.html
