Muslim & Canadian Family Laws: A Comparative Primer

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This book provides comparative information about Canadian and Muslim laws relating to the family, particularly as they pertain to women’s rights. We hope it will be of assistance to, among others, professionals working with Muslim women in the family court system, students who would like to know more about the topic and community-based services that assist women. Our primary goal, however, is to provide information to Muslim women. We want Muslim women to have access to information about the law so that they can make informed choices and decisions.

While no book could ever be exhaustive, we hope we have addressed the most significant areas of family law: marriage, divorce, property and spousal support, child custody and support, inheritance and domestic contracts. We have also examined related matters such as restraining orders, mediation and arbitration, and access to justice. The section on Canadian law in this book focuses on federal laws as well as the laws of Ontario. Laws of other Canadian provinces are generally very similar in content, although the names of the statutes vary from province to province.

Canadian law offers women many positive possibilities not offered by private law of any kind, including religious law, whether Muslim, Jewish or Christian. Laws are written by government, which is accountable to the public through the electoral process. Those laws are consistent across the country and apply in the same way to all who use them. They must conform with the Charter of Rights and Freedoms, which contains important protection for women’s equality rights. Court proceedings are a matter of public record, and bad decisions can be appealed. People involved in court proceedings have the right to legal representation and may have access to legal aid if they cannot afford to pay their own lawyer. Of course, even all of these protections do not mean that every woman will be happy with the outcome of her case.

The information given in the following pages about Muslim law is not definitive. It should be viewed as a starting point only. As we have made clear in the introduction to that section, Muslim law is not a unitary, codified system, but an evolving body of thought with diverse rulings and applications.

Muslims themselves have very different ideas about what the law is or ought to be and about how and to what extent it should apply in their lives. Some may also confuse local customs and practices with religion.

The Primer can help users to understand and deal with the positions of clients and adversaries in a general way, but it cannot predict or explain all claims exactly. Professionals are advised to spend time in conversation with their clients in order to discover their views and expectations of the law, and also, if possible, to ascertain the views of persons with whom their clients will be involved in legal proceedings. Offering clients this book may help them to examine and clarify their ideas.

Muslim women may discover in this Primer not only some of the disadvantages of Muslim law but also potential advantages such as a properly secured dower and domestic contract. We hope that women will read this book, inform themselves further and ask questions before marriage. Independent awareness, knowledge and debate are the best instruments for dealing with any set of laws.

This book is not a substitute for independent legal advice and representation. Any reader concerned about family law is urged to speak with a lawyer experienced in family law before making any decisions.

Canadian law is current to the date of publication. Laws are in a constant state of flux, and if you are reading this book more than six months after the publication date, you are encouraged to verify that the information contained in it is current. Canadian custody law, in particular, is under review and likely to see significant change within the next year. More detailed information about family law, especially as it affects women, can be found on the website of the Ontario Women’s Justice Network at www.owjn.org.