Dossier 27: Should different kinds of people living in the same province be governed by different kinds of laws?

Marion Boyd has submitted her review of the arbitration process in Ontario and the appropriateness of its use in resolving family disputes, entitled, “Dispute Resolution in Family Law: Protecting Choice, Promoting Inclusion,”1 to the Attorney General and the Minister Responsible for Women’s Issues. It is a lengthy and thoughtful report that carefully weighs many competing interests with respect to the use of arbitration, particularly arbitration based on religious law, in resolving family disputes and also examines relevant constitutional issues. The Review concludes with 46 recommendations, the first two of which recommend the continued use of arbitration, including arbitration using religious law, for the resolution of family disputes.

With all due respect to Ms Boyd’s work, we reject her conclusions for a number of reasons, primarily because they do not acknowledge the vulnerability for women leaving abusive relationships created by a regime of privatized dispute resolution.

METRAC’s basic tenets

Throughout its involvement in the consultation process leading up to this Review and in its analysis of the Review, METRAC has based its work on a number of tenets. We believe it is important to set these out at the beginning of this paper.

1. METRAC is concerned primarily about the impact of alternative dispute resolution on women experiencing abuse in their relationship.
2. METRAC is concerned about the use of all forms of alternative dispute resolution, including mediation as well as arbitration. METRAC has taken the position for some years that mediation is not appropriate in cases where a power imbalance due to abuse and violence exists in a family relationship.
3. METRAC acknowledges that the secular family law and court system fall far short of the mark in respecting women’s equality and in ensuring the safety and well being of women leaving abusive relationships.
4. METRAC acknowledges that, although the public family law system may appear to many to be secular in nature, it is in fact based on many Judeo-Christian principles and values that make it culturally inaccessible to many.
5. METRAC’s interest in this Review is in the suitability of any kind of religious laws or codes in the resolution of family law disputes, not simply the use of Shari’a Law within the Muslim community. Many religions, including the dominant religion in Canada – Christianity – fail to recognize women’s equality rights and often do not acknowledge the serious issue of violence against women and children within the family.
6. METRAC is committed to working with and supporting the position of Muslim organizations with a commitment to women’s equality, in particular the Canadian Council of Muslim Women, recognizing that these organizations offer the lived experience and expertise needed to lead this discussion.
7. METRAC recognizes and acknowledges the unique position of First Nations peoples, who have a constitutional right to self-government including the right to a separate system for dealing with family and other disputes.

Introduction

In the fall of 2003, the Islamic Institute of Civil Justice announced that it would be conducting arbitrations according to Islamic personal law as authorized by Ontario’s Arbitration Act, 1991. When it made this announcement, its president, Syed Mumtaz Ali, made a number of statements that implied Muslims would be required to use this Shari’a court if they were to be regarded as ‘good Muslims’.

There was a considerable public reaction to this announcement. Many women’s equality seeking organizations as well as many religious (including Muslim) communities expressed serious concerns that the use of religious laws that do not respect women’s equality would place women in a very vulnerable position. Concern about women being coerced into using religious law in the arbitration process was also expressed.

Because of the concerns raised, the Ontario government asked Marion Boyd to conduct a review of the arbitration process with respect to family law and inheritance. The Terms of Reference for her work were (in part):

“Marion Boyd has been asked to provide advice and recommendations to the Attorney General and the Minister Responsible for Women’s Issues about the use of private arbitration to resolve family and inheritance cases, and the impact that the use of arbitration may have on people who may be vulnerable including women, persons with disabilities and elderly persons.

“Ms Boyd, with the assistance of government officials, will consult interested parties to determine their views…”

Between June and September 2004, Ms Boyd met with approximately 50 groups, spoke with many individuals and reviewed, “countless letters and submissions from concerned citizens across Ontario.”

Her Review was presented to the Attorney General and the Minister Responsible for Women’s Issues on 20 December 2004.

Summary of the Arbitration Act

Ontario’s Arbitration Act governs the manner in which disputes can be resolved outside the court system. The basic principle of this Act is that people who have agreed to do so may resolve their disputes by following the decision of a third party chosen by them and, having done so, are required to honour that outcome. This statute has permitted, as did its predecessor, the resolution of family disputes through arbitration.

The Act sets out various rules:

• arbitration is based on a contract, an “arbitration agreement,” which, once signed is enforceable;
• the parties are free to select whomever they wish as an arbitrator – there are no required qualifications;
• arbitral awards must be in writing and provide reasons;
• the arbitrator must make his/her decisions according to the civil law unless the parties agree otherwise.

The Act does set some limits on arbitration:

• arbitration must be voluntary;
• an arbitrator cannot order people to do something illegal under Canadian law;
• criminal matters may not be dealt with by way of arbitration. This is because criminal law is not a dispute between people but rather one between the state (the Crown) and an individual;
• arbitrations must be conducted fairly and treat the parties equally.

In brief, Ontario’s Arbitration Act sets up a regime whereby citizens can resolve most civil matters, including family law matters, privately, without reliance on the court system. Decisions made through arbitration are legally binding, and the court system can be called upon to enforce such decisions. It is worth noting at this point that Quebec’s Civil Code expressly prohibits family law issues from being settled by arbitration: “Disputes over the status and capacity of persons, family matters or other matters of public order may not be submitted to arbitration” (Article 2639).

With respect to the use of religious law to settle family disputes, as Boyd states on page 12 of her Review: “the language of the Act is consistent with a choice of a different type of law, such as a religious law or even a set of rules made up by a private organization or by the parties themselves to govern their relationship.”

In other words, individuals have been free to use private arbitration based on religious law since the first statute was written in Ontario. The public announcement in 2003 by the Islamic Institute of Civil Justice merely heralded its intention to create a Shari’a court based on existing legislation.

Summary of the Review

Ms Boyd’s Review is divided into 8 sections. She first provides an introduction, followed by an examination of the law and practice of arbitration. She then looks at family and inheritance law, both federally and in Ontario. This is followed by a summary of the consultations, which includes extensive quotes from submissions made to her. She provides an analysis of constitutional considerations and then an analysis of the overall issue of arbitration, religious law and family disputes. She summarizes suggestions from the submissions made to the Review and concludes the document with her recommendations to the government of Ontario.

Family and inheritance law

In her examination of public family law in Canada/Ontario, Boyd makes a number of points:

• many couples, upon breakdown of their relationship, already negotiate their dispute using non-court mechanisms. These range from the very informal (the two people working out an arrangement between themselves with no outside assistance) to the more formal processes of mediation and arbitration;
• when such agreements are reached, the Family Law Act (FLA) requires that they be in writing, signed by the parties, witnessed, that the best interests of the child be respected and that the agreement be in accordance with child support guidelines. Agreements must show that both parties either had independent legal advice (ILA) or waived it;
• when people resolve their family dispute without using the family court system, they often, “operate in the shadow of the law, but most often without an in-depth understanding of what the law requires or permits;”2
• people may “forsake” their legal entitlements to expedite resolving the dispute;
• people must abide by their personal choices.

Summary of consultations

It is clear from reading the report that Boyd heard from a very broad spectrum of organizations and individuals in her consultations. While many participants represented various religious institutions (Islamic Forum of Canada, Canadian Council of Muslim Women. B’nai B’rith Canada, Canadian Islamic Congress, Canadian Coalition of Jewish Women for the Get, Christian Legal Fellowship, Muslim Canadian Congress, Canadian Jewish Congress, etc.) immigrant organizations were also well represented (Catholic Immigrant Centre, National Organization of Immigrant and Visible Minority Women of Canada, Ontario Council of Agencies Serving Immigrants, etc.) as were women’s equality rights and anti-violence organizations (National Association of Women and the Law, Metropolitan Action Committee on Violence Against Women and Children, Ontario Association of Interval and Transition Houses, Action ontarienne contre la violence faite aux femmes, Barbra Schlifer Commemorative Clinic, etc.) and lawyers, arbitrators and mediators. Even fathers rights groups made submissions (Fathers Are Capable Too, Fathercraft Canada).

Boyd identified a number of themes in the submissions:

• arbitration should not be used to determine matters of family law;
• arbitration should continue to be allowed in family law;
• arbitration should not be based on religious laws, particularly Islamic personal law;
• arbitration should be allowed in family law, using religious principles.

It is worth summarizing the major arguments made to support each theme.

Arbitration should not be used to determine matters of family law

• it is or can be discriminatory in its effect on women;
• the need to find savings in court time and costs should not compromise the rights of women and children;
• when women sign an arbitration agreement at the date of the marriage, they are bound by this at the time of separation, even if they no longer feel arbitration is appropriate because of abuse in the relationship;
• Ontario should follow Quebec and prohibit family law issues from being settled by arbitration;
• while public law is often flawed, it is a public process that allows some public review, input and oversight.

Arbitration should continue to be allowed in family law

• arbitration is already very common;
• very few arbitrated settlements end up before the courts, because clients feel, “as if they have some control over the process and ‘buy in’ to the results;”
• the public family law system is deficient, and arbitration can fill this gap;
• parties can choose an arbitrator who is an expert in family law;
• use of mediation and arbitration is a way to, “reduce the discontinuity and stress that occurs upon marriage breakdown.”

Arbitration should not be based on religious laws, particularly Islamic personal law

• most religions provide an inherent inequity between men and women as the context, which results in an imbalance of power between them when a dispute arises;
• many forms of Muslim Family Law perpetuate a patriarchal model;
• arbitration may not be chosen freely because of, “strong pressure based on culture and/or religion, or fear of exclusion;”
• battered women especially are not, “free to choose;”
• new immigrant women from countries where Shari’a law is practiced will be particularly vulnerable because they may be unaware of their rights in Canada.

Arbitration should be allowed in family law, using religious principles

• the Jewish faith already uses arbitration based on religious law through its Beis Din. This court has operated for many years and hears approximately 30 family dispute cases a year;
• mediation and arbitration are also done by some Christian organizations;
• the Shi’a Imami Ismaili Muslims have developed a model of conciliation and arbitration, including the establishment of Conciliation and Arbitration Boards that operate in 5 regions of Canada as well as in other jurisdictions around the world;
• a Sunni mosque in Toronto already offers a mediation and arbitration service that is called on by the family courts in some cases;
• people of faith should have the right to, “live in the world according to their beliefs, even if those choices affect their material well being”;3
• the right to use arbitration based on religious principles is protected by the Charter of Rights and Freedoms guarantee of freedom of religion;
• Muslims, in particular since 11 September 2001, have experienced serious racism and discrimination, including in the family court system;
• secular family law only recognizes traditional “Judeo-Christian” families – that is, families with two adults in a relationship and the children arising from that relationship – whereas many Muslim families operate as extended families. As a result, the property, support and custody issues that may arise for these families on marriage breakdown cannot necessarily be addressed by the secular family law.

Constitutional considerations

Marion Boyd reviews the applicability of the Charter to the question of whether or not arbitration, in particular based on religious law, infringes any protected rights or freedoms. She looks in particular at section 32 to determine whether this matter even falls within the jurisdiction of the Charter. It is her conclusion that as arbitration is a private act and, as the Charter applies only to government action, it (arbitration) is not subject to Charter scrutiny. She expands on this opinion by stating:

“In addition, arbitration is a private action because there is no state compulsion to arbitrate. . . . Muslims in Ontario retain, as do all Ontarians, the right to choose the traditional justice system or any alternate to it for the resolution of their disputes . . . where people create legal relationships between themselves on their own authority, as legally capable individuals, it seems that a private legal relationship has arisen . . . Even though arbitration of family law and inheritance matters may have the potential to affect women in particular, arbitrations remain private agreements about personal disputes.”4

Boyd also examines those sections of the Charter that guarantee freedom of religion (Sec.2(a)) and that ensure the enhancement of the multicultural heritage of Canada (Sec.27) and concludes:

“Barring Muslims, or any other identifiable group in Ontario, from arbitrating family law and inheritance matters, while others continue to arbitrate according to the principles of their choice, as some commentators have suggested, would raise the issue of whether the government was in violation of the Charter. Given that the Arbitration Act provides a framework for arbitration for all Ontarians, the government should not exclude a particular group of people on the basis of a prohibited ground.”5

Boyd stresses the importance of true consent and choice, and states: “People are entitled to make choices that others may perceive not to be correct, as long as they are legally capable of making such choices and the choice is not prohibited by law . . . we accept the fact that there are private spheres in which people should be free to live as they choose without being forced to subscribe to the values of the state.”6

It is her conclusion that to not allow arbitration, including arbitration based on religious law, would be, “paternalism which I would find intrusive and inappropriate.”

Analysis

The Review provides an overview of the history of the development of public law as well as of the approaches taken in other western countries. Boyd also analyses the question of the separation of church and state. It is her opinion that Canada, “has never had strong policies or legislation to define a separation of church and state.”7

Boyd makes the point that laws in Canada and Ontario are based on Judeo-Christian principles with the result that, “the laws of the province and their application are more easily digestible by some cultures than others, making their impact disproportionate on those who do not belong to the dominant culture. This disproportionate impact may serve to alienate from the mainstream those who do not see themselves reflected in our laws.”8

The Analysis section of the Review looks at domestic violence, the impoverishment of women and children upon marriage breakdown and the issue of access to justice (the lack of availability of legal aid for arbitration and the lack of requirement that participants in arbitrations be advised of their rights and options under the law). Despite her acknowledgement of these challenges, she concludes:

“Ultimately, parties looking for a more personalized and thus a more acceptable form of dispute resolution may find it in the arbitration process. For many people, this means choosing a dispute resolution mechanism that recognizes their cultural background and personal value system, beliefs and faith.”9

Suggestions from the Review submissions

Before presenting her recommendations, Boyd summarizes the suggestions made to her with respect to arbitration, particularly religiously based arbitration, of family law matters. Those suggestions cover such areas as:

• education and training for mediators and arbitrators, including education about the dynamics and risks of family violence;
• regulation of mediators and arbitrators;
• the arbitration agreement itself, in particular the issue of when that agreement should be written and signed;
• independent legal advice;
• availability of legal aid;
• making arbitration agreements and awards subject to the FLA;
• broadening the grounds for appeal or review of arbitration decisions;
• public education and community responsibility.

Recommendations

Boyd concludes her Review with 46 recommendations for the government to consider. Those of greatest interest to us are:

• Arbitration should continue to be an alternative dispute resolution option that is available in family and inheritance law cases, subject to the further recommendations of this Review.
• The Arbitration Act should continue to allow disputes to be arbitrated using religious law, if the safeguards currently prescribed and recommended by this Review are observed.

She also recommends that changes be made to both the Arbitration Act and the FLA to deal with the issue of consent – in particular that arbitration agreements would not be binding unless made or reconfirmed in writing at the time of the dispute and before the arbitration occurs (recommendation 5).

She proposes amending the Arbitration Act to permit a court to set aside an arbitration decision if it does not reflect the best interests of the children affected by it or if any party to it did not have or waive independent legal advice (recommendation 9).

Recommendations 12 and 13 would require regulations to the Arbitration Act and the FLA for family law arbitration agreements to set out, among other things:

• if the arbitration is under religious law, that parties have received and reviewed the statement of principles of faith-based arbitration;
• an explicit statement that judicial remedies and the right to fair and equal treatment cannot be waived;
• an explicit statement that judicial oversight of children’s issues cannot be waived;
• a requirement that such agreements must contain either a certificate of independent legal advice or an explicit waiver of independent legal advice.

Boyd speaks to the issue of family violence by recommending that the regulations require mediators and arbitrators to screen the parties separately about issues of power imbalance and domestic violence, using a standardized screening process (recommendation 18). Such a standardized screening process would be developed by the Ontario government working together with professional bodies (recommendation 31).

Further recommendations speak to other legislative and regulatory matters as well as to the areas of independent legal advice, public legal education, training and education for professionals, oversight and evaluation of arbitrations, community development and further policy development.

METRAC’s analysis

There is no doubt that Marion Boyd’s review is exhaustive. She received and reviewed submissions from individuals and organizations representing a very broad spectrum of opinions. As well, she conducted what appears to be extensive research.

There is also no doubt that this issue – the use of arbitration, in particular arbitration based on religious law, in the resolution of family disputes – is a very difficult one. There are significant competing interests – freedom of religion and women’s equality rights being perhaps the two most significant.

We agree with Ms Boyd’s concerns stated at page 46 of the Review that, “for many individuals who come to this country from other lands, western laws, rather than appearing to be secular, look patently ‘Christian’ in nature, enshrining as they do such ‘Christian’ values as monogamy in marriage or restrictions around divorce.” This is a serious challenge that merits serious attention.

The fact that the Arbitration Act has always permitted the private resolution, using any rules of laws agreed upon by the parties, of family law disputes in Ontario makes finding a resolution even more challenging. This discussion would be much easier if it were taking place in the absence of the present legislation.

Despite these challenges and complexities and despite a careful review of Ms Boyd’s review, METRAC maintains the position it took at the beginning of this process:

We oppose arbitration, particularly arbitration based on any system of religious laws, for family law disputes because we believe it does not ensure the equality rights of women and children.

Ms Boyd’s conclusions appear to be based on the premise that women in Ontario have achieved equality. This premise leads her to the position that women, then, are free to make their own choices with respect to the resolution of family disputes and that it would be ‘paternalistic’ of the state to limit or intervene in these choices in any way.

We do not agree. While much progress has been made to ensure formal equality for women, substantive equality remains largely elusive. Women in Canada earn considerably less money than men. Indeed, in post-separation families, women and their children live in poverty in comparison to men, whose standard of living more commonly increases at this point. Women are significantly under-represented at senior levels in business or politics. In most families, women continue to perform more child rearing and housework tasks. Of particular importance in this discussion, women are the primary victims of violence – physical, sexual and psychological.

Women from marginalized communities are particularly vulnerable. Some come from communities with cultural and/or religious norms that place the man as the head of the household holding the power. In some cases, physical ‘discipline’ of women for ‘misbehaviour’ is considered acceptable. Further, often women from these communities have little or no independent access to information about their rights under Canadian law, which increases their isolation and vulnerability. It also makes it less likely that any ‘choices’ they may make with respect to the resolution of family disputes are informed or free choices.

Indeed, we take the position that, for many women leaving an abusive relationship, exercising free choice is an illusion. Research and experience with mediation over the past decade establishes this. While mediation is not mandatory in Ontario for the resolution of family law cases, it is looked upon very favourably. Battered women report feeling they had no choice but to enter into mediation, even when they knew the outcome would not be favourable to them or in the best interests of their children.

For these reasons, any use of arbitration, particularly arbitration based on religious law, must be approached with considerable caution. It is our opinion that, without equality for women, private dispute resolution of family disputes should not be encouraged or given legislative authority.

Other elements of the Review are of concern to us:

• we do not agree with Ms Boyd’s conclusion that the Charter should not apply to arbitration;
• we are disappointed at her lack of a gender-based analysis;
• her dismissal of the concern that family law remain public rather than returning to the private realm that arbitration allow is very troubling. Women’s equality seeking groups have fought for many years to bring family law, and family violence, into the public sphere. To move back to privatized dispute resolution will re-entrench the power imbalance between men and women;
• Ms Boyd seems to want to correct one wrong (the inherent Judeo-Christian underpinnings of the public family law system) with another (creating more religiously based systems of family law. We need only look at the issue of public v private religious education for an example of how poorly this approach works;
• we think the Review does not take seriously enough the problem of violence against women within the family and the impact this has on the ability of women to make free choices.

METRAC’S recommendations

• that Ontario amend the Arbitration Act to ensure that, in family law matters, all religious tribunals confine themselves to mediation and require the public family court system to make all final decisions with respect to these matters;
• that training and education be provided for judges, lawyers, mediators, court clerks and others to increase their understanding and knowledge of non-Judeo-Christian cultural and religious beliefs and values with respect to family issues;
• that the family court system be made more efficient so cases in family court can move through the system more quickly. Although tangential to the substance of the Review, we point to one submission made to Ms Boyd which stated: “we are seeing the creation of a two tier justice system: those who can afford, in essence, to choose and to hire their own judge to decide their case, create their own private court. Others ‘languish’ in the public system”;
• that consultations take place with religious and cultural communities to find ways the family court ‘culture’ can be made more inclusive and welcoming to all who must use it;
• that the Government of Ontario work to ensure that family court judges, lawyers, mediators and others understand properly the issues of women’s equality rights and violence against women to improve the quality of outcomes in family court;
• that the Government of Ontario work in collaboration with appropriate community groups (including women’s equality seeking groups as well as religious and cultural groups) to develop educational materials about women’s rights and Canadian family laws, to be designed to meet the diverse needs of different communities; and
• that funding for Legal Aid Ontario be improved to ensure proper legal representation for all.

Conclusion

Ms Boyd’s consultations and the Review that resulted from them were brought about because of the declaration by one religious community of its intention to use the Arbitration Act, as already written, for the resolution of family disputes.

The result, however, has been an examination of arbitration itself and the place of religious law in arbitration. This has been a very useful and challenging process that has allowed Ontarians to look at our commitments to women’s equality, freedom of religion and multiculturalism. The discussion has also encompassed philosophical and political notions about public/private domains, freedom of choice and the role of the state in quasi-private matters.

While we do not agree with Ms Boyd’s conclusions or recommendations, we are grateful for the opportunity to consider these very important issues, and urge the government to consider our recommendations. We can move ahead in a way that respects women’s equality rights as well as religious and cultural differences within one system of law for everyone in the community.

Acknowledgements

This paper is reprinted with the kind permission of Pamela Cross and the Metropolitan Action Committee on Violence Against Women and Children (METRAC).

Endnotes

* Pamela Cross is the Legal Director of the Metropolitan Action Committee on Violence Against Women and Children (METRAC), a Toronto-based organization working in the areas of justice for women and children, violence prevention, personal safety, and public education on all issues of violence against women and children. More information can be found at: http://www.metrac.org

1 M. Boyd, ‘Dispute Resolution in Family Law: Protecting Choice, Promoting Inclusion’ (December 2004), http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/boyd
2 Ibid., p. 22.
3 Ibid., p. 63.
4 Ibid., p. 72–73.
5 Ibid., p. 74.
6 Ibid., p. 75-76.
7 Ibid., p. 86.
8 Ibid., p. 90.
9 Ibid., p. 10.