Canada: Faith-based arbitration of family matters could violate Canada's international human rights obligations

In a letter addressed to Michael Bryant, the Attorney-General of Ontario, Rights & Democracy added its voice to those of the Canadian Council of Muslim Women (CCMW) and the National Association of Women and the Law (NAWL) in denouncing the findings of Marion Boyd, the former provincial Attorney-General whom the Government of Ontario appointed to examine the issue of faith-based arbitration in family law and inheritance matters.

Approving the arbitration of faith-based family law under Ontario's Arbitration Act, which the Boyd Report recommends, would effectively privatize family law. In doing so, the Government of Ontario's duty to uphold its human rights obligations would be turned over to the religious, cultural and political authorities responsible for arbitration procedures, Rights & Democracy said.

Citing Canada's obligations under international human rights law, including the International Bill of Human Rights and the Convention on the Elimination of All Forms of Discrimination Against Women, Rights & Democracy said the Government of Canada and its provincial counterparts cannot uphold legislation or policies that have a direct or indirect discriminatory effect on women. Furthermore, Canada and its provincial governments have the legal duty to prevent discrimination caused not only by government action or omission, but also by private actors, as may be the case in matters of faith-based arbitration.

While recognizing that the right to freedom of religion includes the right to participate in religious processes that may involve family matters, Rights & Democracy pointed to a recent joint declaration by the UN Special Rapporteur on Violence Against Women, Its Causes and Consequences, the Special Rapporteur on Women's Rights for the Inter-American Commission on Human Rights and the African Commission on Human Rights Special Rapporteur on the Rights of Women in Africa that affirmed, States must not invoke any custom, tradition or religious consideration to avoid their obligations with respect to the elimination of violence and discrimation against women.

With other provinces and national governments in Europe and around the world closely monitoring this debate, Rights & Democracy also expressed concern for the possible national and international consequences should Ontario decide to permit faith-based arbitration. The application of faith-based arbitration in Ontario could create a precedent that may be followed by other Canadian provinces and internationally, thereby creating a backlash against the recognition of the universality, indivisibility and inalienability of women's human rights.

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