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About family disruptions and religious tribunals:

For decades, numerous Hollywood movies have promoted an adversarial solution for marital separation divorce, and other family matters. They show a woman packing her bag, leaving the home in a huff, and announcing that she is going to an appointment with her divorce lawyer. In recent years, separation and divorce mediation has become a common practice for marital problems. Many couples find that this approach is cheaper, quicker, and less painful. It often produces an agreement that both find more acceptable. A third option is to pursue arbitration through a religious tribunal that is, in Ontario, Canada organized under the Arbitration Act of 1991. Like mediation, arbitration is only applicable if both or all parties agree to it in advance. Couples may find this route more acceptable because the ruling would match their religious traditions. The ruling by the arbitrator is usually binding. An appeal may be made to the secular court system. However, there are limited grounds whereby the decision of the arbitrator can be overturned.

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Human rights aspects:

The Charter of Rights and Freedoms, Canada's Constitution, guarantees religious freedom to all citizens and residents. This includes both freedom of belief and practice. However, the Charter also contains a section that prohibits discrimination on the basis of sex, sexual orientation, race and other factors. These two requirements often result in a conflict between religious freedom and human rights. For example:

bulletEven though couples who meet a minimum of qualifications, may marry in Ontario -- both opposite-sex and same-sex couples, various faith groups have sometimes discriminated against engaged couples, refusing to marry them because of their sex, disability, marital status, religion, age, etc. The faith groups have been free of prosecution because religious freedom includes the freedom to freely discriminate.
bulletSome conservative faith groups refuse to consider women as candidates for ordination. Again, they are allowed to discriminate without any danger of being called before a human rights commission.

During 2004, considerable concern was being expressed by the public and in the media about the use of Muslim personal law, generally called sharia, in arbitration processes in Ontario. This was triggered by a plan by the Islamic Institute of Civil Justice to establish a "Sharia Court" in Ontario. There was a perception by part of the public that tribunals would discriminate against women, in spite of the guarantees of equal treatment given to men and women under the Charter.

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The "Dispute Resolution in Family Law" report:

"On June 25, 2004, the Attorney General, the Honorable Michael Bryant, and the Minister Responsible for Womenís Issues, the Honorable Sandra Pupatello asked Marion Boyd to conduct a review of the use of arbitration in family and inheritances cases and to examine the impact that the use of arbitration has on vulnerable people, including women, persons with disabilities and elderly persons." 1 Marion Boyd was a former Attorney General and a former Minister Responsible for Women's Issues in a New Democratic Party (NDP) government.

Boyd issued her report on 2005-JAN-17. It is titled: "Dispute Resolution in Family Law: Protecting Choice, Promoting Inclusion." 2 The Executive Summary of the report mentions:

bulletAs in other uses of arbitration, both parties must  agree in advance to select this option, rather than resolve the disagreement through the courts, etc.
bulletThe use of arbitration may result in a ruling that is more acceptable to the individuals involved because they are more reflective of the individuals' religious and cultural values.
bullet"...may provide a venue for continued abuse after the breakdown of a relationship., and therefore safeguards must be in place. Many respondents to the Review recognized the need for the Muslim community to counter traditional attitudes that may condone violence against women."
bulletThose consulted in the preparation of the report expressed different, often contradictory themes:
bulletArbitration should not be permitted in family law and inheritance cases because it would conflict with the Charter and perpetuate an imbalance of power in cases of abuse.
bulletArbitration should be permitted because it is more effective and less expensive.
bulletArbitration should be permitted because it is protected by freedom of religion and may be integral to the lives of some individuals.

Ms. Boyd's report listed 46 recommendations. Some are:

bulletArbitration should continue as one possible dispute resolution option in family and inheritance cases.
bulletReligiously-based arbitration should be allowed if certain safeguards are in place.
bulletArbitration and mediation agreements be recognized as "domestic contracts" -- signed by the parties and witnessed.
bulletCourts would be given power to set aside an arbitration award on the same grounds as other domestic contracts.
bulletThe Arbitration Act should define the concept of a fair and equal process.
bulletFaith-based arbitration tribunals would distributed to prospective clients a statement of principles explaining parties' rights and obligations and available processes.
bulletMediators and arbitrators would screen clients in advance for indications of power imbalance and domestic violence.
bulletParties would receive independent legal advice from lawyers about their case.
bulletPublic education initiatives by the Government are needed to acquaint the public with the legal system, various dispute resolution options & family law provisions.
bulletThe Ontario Government would work with professional bodies representing lawyers, mediators and arbitrators, to educate these professions about all aspects of mediation and arbitration.
bulletArbitrators in family law and inheritance cases would have to keep adequate records, report summaries annually to the government. They would be required to send the government summaries of each decision, free of identifying information, for research purposes.
bulletIn the future, mediators and arbitrators in family law and inheritance cases should form a self-regulating professional organization.
bulletThe government should study the possibility of "a higher level or court oversight" of family and inheritance case settlements based on religious principles. 2

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References used:

  1. Marion Boyd, "Executive Summary: Dispute Resolution in Family Law: Protecting Choice, Promoting Inclusion," Ministry of the Attorney General, at: http://www.attorneygeneral.jus.gov.on.ca/ **  This is a PDF file. You
  2. Marion Boyd, "Dispute Resolution in Family Law: Protecting Choice, Promoting Inclusion," Ministry of the Attorney General, at: http://www.attorneygeneral.jus.gov.on.ca/ **

** These are PDF files. You may require software to read them. Software can be obtained free from: 

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Site navigation: Home page > World Religions > Islam > Sharia > here

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Copyright © 2005 by Ontario Consultants on Religious Tolerance
Originally posted: 2005-SEP-18
Latest update: 2005-SEP-19
Author: B.A. Robinson

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