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Clarification: Arbitration and Family Law Acts.

Frequently Asked Questions: 

What is the Issue?
The Arbitration Act in Ontario and similar legislation in other provincial jurisdictions, with the exception of Quebec, allowed for religious laws to be applied in settling family disputes. Under the Arbitration Act, faith based, privately arbitrated decision was legally binding. While the right of appeal existed, it was almost impossible to exercise it without incurring tremendous personal and financial hardship. CCMW wanted one set of laws to be applied to all, regardless of faith, ethnicity, race or culture, under the existing family law legislation. CCMW believes that the use of religious laws through private arbitration to settle family matters, under the Arbitration Act, violated the hard won equality rights guaranteed under the Canadian Charter of Rights and Freedoms, and created a two tiered, fractured justice system.

 Has there been a decision regarding this issue?
On September 11/05, the Premier of Ontario publicly announced that there will be no religious laws used in arbitration and that “one law will apply to all citizens and that is Ontario and Canadian law.”

Since then the government of Ontario introduced  Bill 27 in the Fall of 2005, and after second reading, there were public Hearings on January 16/17/06. The bill passed third reading on

Feb 14/06, Royal assent has been granted, and as of March 06, there is the commitment of the government to have consultation on the Regulations before implementation.

The law amends a number of other legislations and the changes include:

• Family arbitration agreement has to be in writing.

• Each party must receive independent legal advice before entering an agreement.

• The right to appeal cannot be waived.

• No one can be committed in advance to arbitration.

• The agreement has to consider the best interests of the children.

• There is to be regulation for family law arbitrators and they must undergo training.

• Arbitrators must keep records and submit reports to the Attorney General.

• Funds are to be provided for public education and outreach.

What are the relevant legislations? Ontario’s Arbitration &  Family Law Act.
Confusion continues regarding the use of the Arbitration Act for family law matters. The issue has little to do with any specific religion, it is because of a poor piece of legislation being used inappropriately.

The Arbitration Act’s primary purpose for commercial disputes made it appropriate for private agreements using a private arbitrator, but not for family matters.

Because the Family Law Act is legislated specifically for families, it has a preamble of values such as, families need to be strengthened; the spouses have equal positions; marriage is a partnership and there should be equitable sharing of the responsibilities for children.

As Muslims, we value the family as the cornerstone of society and deserving of all the legal safeguards.

What are the concerns regarding the use of the Arbitration Act for family matters?
a. Once the process of arbitration starts, the person cannot withdraw from the process.

b. The arbitrator can be anyone, and does not require any training, legal or otherwise.

c. The arbitration agreement [award] is legally binding and can only be overturned via a court challenge.

d. Past experiences have demonstrated that the courts tend to defer to the arbitrator’s decision and rarely have any cases been overturned.

e. The financial, time and emotional costs of a court challenge are enormous and few can proceed to this step.

f. The problematic section which stated that other laws could be applied was specifically related to a commercial dispute between Ontario and an American State.

g. Till now, no other province allowed its Arbitration Act to be used in family matters, for example, Quebec states that families are of great value to society and therefore cannot be subject to private legal agreements.

h. NDP which revised the Act in 1991, has made a public statement that the Arbitration Act should not be used in family matters. The Conservatives agree with the Premier’s decision of No Religious Arbitration in family matters.

i. The main objection is that the nature of the private agreement, outside the civil court system, does not lend itself to having the government intrude in such agreements. 

j. Another concern is that a parallel system of law is introduced in family matters which deflects from the civil court system which has public scrutiny.

What about the Family Law Act?

• In the last 30 years, this law has undergone major changes, from having elements of Judeo-Christian values, to a law reflecting a human rights paradigm, with values of equality and shared responsibility of both parents.

• It is specific for the family with a preamble of values.

• The Act is open to public scrutiny and can be revised via a democratic process.

• It is flexible and can accommodate individual preferences.

• CCMW and other organizations are asking that the government review the Act as it is about 15 years old and all legislation should have a review process. There are some issues which have arisen in the last few years and it is important for a review.

 What is the Boyd Report?
The government appointed Marion Boyd to review the Arbitration Act in the summer of 2004, and her report was made public in December of 2004. Boyd made 46 recommendations, not requirements, but even these do not protect or safeguard any rights. The Ontario Institute of Dispute Resolution, Ontario Association for Family Mediation and Family Mediation Canada, wrote to the Premier stressing that Boyd’s recommendations would not protect vulnerable people. Some people incorrectly read into her recommendations what is just not there.

Also, she only recommended but did not require training and accepted that there cannot be any legal aid. Furthermore, she allowed for a woman to give up her right to legal advice, she did not require oversight, just recommended it.

Boyd’s 200 page report is itself full of concerns about the use of private agreements. She noted that as these agreements have been private, there were no records for her so that she could not assess the impact on vulnerable people.

What is the difference between Legally Binding Arbitration versus Mediation?

• These two are very different, as one is recognized and enforced by the courts, while the other is an informal, community based counseling and is similar to “good advice” which individuals may accept or reject.

• No one is interfering with the choice of individuals to go to elders and religious institutions for advice and counseling.

• Mediation can continue to happen, but it should not have the sanction of the state to make it legally binding. If a person wants to use this alternative, as religiously binding on her, that is still his/her choice.

If other Communities are allowed, why not the Muslims?
It is a false notion that other religious groups regularly use the Arbitration Act for family matters.

No Christians use it, the Muslim Ismailis use Canadian Law and the Jewish Beis Din, only use it for their religious divorces called “get.” Only a small segment of the Jewish community, the Hasidic and some Orthodox, use the Beis Din. All of last year, only two cases in Ontario used the Arbitration Act to settle family matters. And while there were just those two cases, there are those who rightly argue that a precedent is set and therefore all religious groups should have the same right. Based on this. the Premier’s decision is fair and just as it does not allow religious arbitration for any religious community. As Canadians, we are under one law in such an important area as the family. If the decision had been otherwise, it would be the start of a private, parallel system of law.

Is there a difference between Religious Laws versus Religious Principles?
These are very different and the terms should not be used interchangeably. There has been a deliberate use of blurred terminology, such as faith based or religious principles. Islamic Principles are Equality, Social Justice and Compassion. These values are also articulated in the Canadian Charter of Rights and Freedoms.

Religious laws, such as Muslim fiqh/ jurisprudence, are specific, developed over the centuries by humans and do not have the equality of women as a fundamental value. There is much good in these laws and CCMW is encouraged by the evolution taking place in some Muslim countries regarding Muslim family law. However, this is still a legal area needing more development and the concern was what would be practiced in Canada. Fiqh is too vast and complex a subject to be introduced into Canada.

Were the fears of increasing anti Muslim feelings justified?
The media attention had its pros and cons, as there was much interest in learning about Islam and Muslims; simultaneously there was some negativity aroused as well.

Though the decision of the Premier is appropriate, it should have been made earlier.  The delay caused much media coverage and stirred an interest in all things Muslims and also anti Muslim sentiments.

But was there a choice? Should Muslims remain silent? Should it not be up to Muslims ourselves to speak out against what potentially could have hurt women and their children?

As Canadian Muslims, we acknowledge that the laws of the land are compatible with the principles of Islam, and we can live here fully as Muslims with our religious and other freedoms protected.

Was the decision by the Premier to remove religious laws from family matters an anti Muslim act?
No, he decided to remove ALL religious laws and did not focus on Muslims or Muslim family law. This means no religious laws and this is fair and how it should be.

What were the factors which were effective in influencing the politicians to make the decision?
The focus of the struggle was that some women, believing women, would be discriminated against. That the same values and principles of equality, social justice and compassion would not be applied to them, and religion would be used as a “coercive” force instead of a enhancement to our lives.

CCMW with the help of many others groups created a coalition and though there were many differences amongst us, all pulled together for the same principles. The coalition was very powerful in mobilizing the various communities and in influencing the politicians. Furthermore, prominent Canadians agreed to a joint letter which was published in the Globe and Mail on Saturday Sept 10/06. We understand that also had an impact on the Premier.

There were many politicians, especially the Liberal Women’s Caucus, at both the federal and provincial level who became allies. We also received support from international partners such as Women Living Under Muslims Laws and are most grateful to Rights and Democracy for bringing these lawyers, scholars and activists to Canada.

What are the lessons learned from this example of grassroots activism to influence change?
There has to be a clear focus on what the issue is and how it should be resolved.That it is alright to have differing perspectives within a coalition as long as the focus remained clear.

To lift the issue from one group such as Muslim women and to ensure that it is understood that this affected more than Muslim women, it had the potential to affect all women and their children.

The realization that this issue had world wide ramifications and would have undermined Muslim women’s struggles in other countries.

It helped that Canada has a Charter of Rights and Freedoms and that there was support for women’s equality rights, without diminishing religious freedom or multiculturalism.

One group could not have achieved this, it had to be an active committed coalition of organizations and individuals.

To continue to make every effort to separate the issue from anti Muslim/anti Islamic rhetoric.

The mobilization required commitment, passion, reason and a strong belief in the rights of all women regardless of ethnicity, culture, religion and race.

A recognition of differences amongst women, without succumbing to the argument of “cultural relativity.”

Who is to be recognized and who should be thanked?
It would be impossible to list all the organizations and individuals. The YWCA website has the Joint Declaration signed by organizations and individuals. The Steering Committee of the coalition led much of the work.

With gratitude to many.

Canadian Council of Muslim Women.