هنئونا انتصار جديد على قوى الظلام في ولاياتنا ONTARIO !!!!

Quote: Arbitration, Religion and Family Law: Private Justice on the Backs of Women by Natasha Bakht March 2005 ISBN #0-895996-89-9 (This publication is also available in French) Acknowledgements: This paper would not have been possible without the efforts of many people who contributed by sharing information, clarifying points of family law and Islamic jurisprudence, reading and re-reading drafts and providing their important feedback. The author would like to acknowledge the contribution of all the women of NAWL's working group for their input on previous drafts of the paper. I am particularly grateful for the supervisory role played by Andrée Côté on this project. Her knowledge of feminist academic/activist work combined with her gentle inquisitive manner was an inspiration. Funding for Part One of this paper was provided by the Canadian Council of Muslim Women, the National Organization of Immigrant and Visible Minority and the National Association of Women and the Law with financial support from the Women's Program, Status of Women Canada. The remainder of the paper was funded by the Law Commission of Canada and the Walter and Duncan Gordon Foundation. The opinions expressed in this document do not necessarily represent the official policy of the funders. Arbitration, Religion and Family Law: Private Justice on the Backs of Women OUTLINE Part One: Family Arbitration Using Sharia Law I. Arbitration and Family Law in Ontario A. Ontario’s Arbitration Act 1. The Role of Arbitrators B. The Arbitration Process C. The Content of Arbitral Awards in the Family Law Context 1. Division of Property 2. Spousal Support 3. Custody, Access, Child Support and Other Matters Involving Children D. Court Intervention in Arbitral Agreements and Awards 1. Appeal Process 2. Process of Judicial Review 3. Setting Aside Arbitral Agreements and Awards 4. Declaration of Invalidity by a Non-Party 5. Unusual Remedies E. Judicial Interpretation of Private Agreements 1. The Interpretation of Voluntariness and Free Will F. Judicial Interpretation of Islamic Agreements 1. Legal Representation G. Multiple Interpretations of Sharia Law 1. Reservations to CEDAW: Example of the Diverse Application of Sharia Internationally II. The Potential Impact of the Arbitration Regime on Women A. Section 15 Charter Analysis 1. Standing: Who Can Invoke a Charter Right? 2. Distinction in Purpose or Differential Treatment in Effect 3. Based on an Enumerated Ground 4. Whether the Distinction or Differential Treatment is Discrimination 5. Section 1 of the Charter 6. Conclusion Part Two: Human Rights Framework I. Culture and multiculturalism A. Multiculturalism in Canada B. The Multiculturalism Paradox C. The Impact of Accommodation on Minority Women II. Religious freedom A. Freedom of Religion Under Domestic Law B. Religious Freedom Under International Law III. The Legal Supremacy of Women’s Rights in the Charter and in CEDAW A. International Legal Framework B. Canada’s Rights Regime C. Islam and the Conflict between Women’s Rights and Religious Practice D. Conclusion: Universality and indivisibility of human rights Part Three: The Separation of “Church” and State I. Basic concepts and historical context II. Considerations in the Canadian Context Part Four: Law Reform Options I. Islamic Institute of Civil Justice: Muslim Sovereignty II. Canadian Council of Muslim Women: One law for All III. Marion Boyd Recommendations IV. Reformist feminist proposals: A. Dual Governance B. Women’s Legal Education and Action Fund Proposal V. National Association of Women and the Law A. NAWL Opposes Arbitration in Family Law B. NAWL Opposes Faith-Based Arbitration in Family Law C. A Framework for Mediation D. Improving the Justice system E. Conclusion Arbitration, Religion and Family Law: Private Justice on the Backs of Women In Canada and other parts of the world, many religious groups have been organizing to implement policies that would influence the manner in which civil society is run. It has been argued that this use of religion for political gain threatens to undermine hard won entitlements to equality and basic human rights. Much media attention has recently focused on the issue of the formation of arbitration tribunals that would use Islamic or sharia law to settle civil matters in Ontario. Certain members of the Muslim community in Toronto belonging to the Islamic Institute of Civil Justice have proposed such tribunals. In fact, the idea of private parties voluntarily agreeing to have their disputes resolved by an arbitrator using a foreign legal system is not new. Ontario’s Arbitration Act has allowed parties to resolve disputes outside the traditional court system for some time. Other religious groups including several Jewish communities have created Jewish arbitration tribunals or Beis Din in order to resolve civil matters between individuals using the Arbitration Act. Some of these tribunals have been sitting in parts of Canada since 1982, setting a precedent for Muslim communities to do the same. The primary purpose of this paper is to examine the legal implications of arbitration tribunals that will utilize sharia law in Ontario. Part one of the paper will investigate the role of arbitrators, the mechanisms for appealing arbitral awards to the courts, judicial interpretation of arbitral agreements and awards, the importance of legal representation and the gender-based impact on women with an accompanying analysis of the section 15 right implicated under the Canadian Charter of Rights and Freedoms. Key sections of the Arbitration Act will be examined and contrasted with the reality of how such clauses are likely to be interpreted to the disadvantage of women. The general process of arbitration in Ontario will also be outlined. Though the scope of arbitration tribunals can include a wide range of legal areas, the principal area of inquiry of this paper will be family law with a particular emphasis on the impact that sharia law could have on Muslim women in Ontario. The paper will also consider the broad issue of the increasing privatization of family law. Part two of the paper will examine the human rights framework with an emphasis on the role of multiculturalism and the protection of religious freedom both domestically and internationally. In particular, the unique position of women within minority groups will be examined. Part three of the paper will consider the doctrine of the separation of “church” and state with a view to understanding Canada’s relationship with religion and religious communities. Finally, part four of the paper will summarize and assess various law reform proposals put forth by key actors in the debate around religious family arbitration in Ontario including the preliminary recommendations put forth by the National Association of Women and the Law. The paper ends with reflections on the need to have ongoing discussions and consultations on this topic and the many areas that it implicates. Part One: Family Arbitration Using Sharia Law I. Arbitration and Family Law in Ontario Although the bulk of this paper addresses the distinct circumstances of family arbitration in Ontario, most other provinces of Canada have also enacted arbitration legislation. The debate in Ontario surrounding the use of religious principles to resolve family law matters will have implications for many of the provinces of Canada. It is hoped that the issues raised in this paper, specifically the suggestions for law reform will influence Ontario, other provincial governments and the federal government to reexamine the situation of family law and arbitration, in particular, its implications for women. A. Ontario’s Arbitration Act Arbitration is a form of alternative dispute resolution by which people are given a voluntary alternative to the increasingly lengthy and expensive cost of litigation under the traditional court system. Under arbitration, parties agree to have their dispute settled by an adjudicator agreed upon by both parties. Ontario’s Arbitration Act, amended in 1991, sets out the rules to be used in resolving civil disputes. For example, the Act sets out how the arbitrator is appointed and how he or she conducts the resolution of disputes. The parties are given much freedom to design their own processes because arbitration is considered a private system that is entered into by agreement. In the family law context, mediation and arbitration are perhaps the most common alternatives to litigation. In mediation the parties design an agreement themselves with the assistance of a neutral mediator. This is considered advantageous because lawyers often cannot predict what a judge will do if disputed issues go to trial. A settlement, such as a separation agreement, gives the parties control over their own financial and property rights and can be filed with a court and then enforced as an order. It can also ensure that values different from those propagated by the state can serve to guide individuals’ interests. Mediation ensures privacy and can promote more constructive parenting relationships after divorce in cases where there is no abuse or oppression. Notably however, there has been much feminist critique of the perils of mediation generally and within the context of domestic violence. Mediation is regarded as a consensual process, from which a party is free to withdraw at any time. The use of arbitration is a relatively new development in family law. The Arbitration Act was amended in 1991 with a view to resolving civil disputes in a more cost effective manner. The original intent of the act was likely to increase efficiency in primarily commercial and not family law matters. Arbitration is different from mediation in that the parties agree to have a third person adjudicate their dispute for them in a similar manner that a judge would. Some perceived advantages to arbitration are that the process is considered private, is often less expensive than litigation and an arbitral award can be filed with a court and then enforced as a court order. Filing an arbitration order with a court is neither mandatory nor does it represent court oversight of an arbitral award. It merely means that a party to the arbitration agreement has recourse to enforcement should another party fail to abide by the arbitrator’s decision. Once an arbitration agreement is signed, the parties do not have the option of withdrawing from arbitration. This can be particularly problematic where an agreement to arbitrate is signed at the date of marriage, but the actual arbitration does not take place until years later, during which time a person may have changed her/his mind about wanting to submit a dispute to arbitration. In the context of arbitration using religious principles, this may pose problems for the individual whose religious beliefs change over the course of time. The Arbitration Act allows parties to arbitrate most civil matters without express limits. Arbitrators however, may only impose such decisions on parties that the parties could bind themselves to directly. In other words, matters of a criminal nature that involve the state, or disputes involving individuals or institutions who have not agreed to arbitrate are not matters that can be arbitrated upon. Similarly, disputes involving public status such as marriage and divorce cannot be resolved by arbitration. Divorce is additionally, a federal matter and thus, is also outside the provincial jurisdiction of arbitration. Typical disputes that are resolved via arbitration are commercial disputes, construction disputes, rental disputes and intellectual property issues. Certain family law matters particularly upon the dissolution of a marriage or common law relationship can also be submitted to arbitration, for example spousal support or a division of matrimonial property. 1. The Role of Arbitrators Ontario’s Arbitration Act allows consenting parties to have their disputes settled by any mutually agreed upon person. Arbitrators are required by ss. 11(1) of the Act to be independent and neutral as between the parties, unless the parties decide otherwise. The Act does not require arbitrators to have any special training since the parties are free to choose whomever they believe will be the most appropriate person to resolve their dispute. Pursuant to ss. 10(1) of the Act, anyone who can get her/himself chosen by disputants or by a court can be an arbitrator. Arbitrators are required by ss. 11(2) and (3) of the Act to disclose to all parties any circumstances of which she/he is aware that may give rise to a reasonable apprehension of bias. Arbitrators are lawyers or private citizens who may or may not make a living through adjudication. Generally, private parties appoint arbitrators and they pay the arbitrator’s fees. If however, the parties to arbitration cannot agree on who should arbitrate a matter, a court can be asked to appoint someone under ss. 10(1) of the Act. The court will normally appoint someone based on suggestions made by one of the parties. Arguments are made by both parties to persuade the court as to who to appoint. Though several media sources have noted that the Canadian Charter of Rights and Freedoms is the supreme law of the land that will preclude discriminatory provisions in arbitral agreements, it must be recalled that arbitration impacts only civil disputes. The Charter is legislation that applies to state action and not disputes between private individuals. Thus, the Charter does not bind arbitrators per se. Where however, an arbitral award is filed with a court and enforced as an order governmental action may well be implicated. Though the Charter became part of the Constitution of Canada in 1982 and by virtue of s. 52(1) of the Constitution Act, 1982 any law that is inconsistent with the Charter “is to the extent of the inconsistency of no force or effect”, it is difficult to predict what impact this will have on legislation that allows two parties with informed consent to agree to arbitration using any “rules of law.” Traditionally perceived as facets of private life protected from state intrusion, certain family law matters have been acknowledged as subjects of public scrutiny and influence. For example, in the matter of spousal support where government action is not implicated, the courts have utilized a process of interpretation by which Charter values have been imported into disputes between private individuals in order to recognize and redress historic disadvantages endured by women. An argument can be made that arbitration involving family law, no matter what legal framework is used to resolve the dispute, should by analogy and in order to maintain coherence in the law also import Charter values. Alison Harvison Young makes the major claim that substantially because of the Charter family law can no longer be characterized as falling within the domain of private law. The Charter has “articulated values such as equality that form a framework or backdrop of principle, in turn creating an overall degree of integrity or coherence” and it has legitimated a methodology of adjudication that openly articulates policy considerations. However, should reliance be placed on Charter values, there is no reason why only equality and not other Charter rights such as freedom of religion would be selectively included in determining the content of private agreements. It has been suggested that the progressive changes evident in family law over the years are not simply the result of Charter values, but the robust values of equality indigenous to family law. B. The Arbitration Process Parties to arbitration and sometimes their chosen adjudicator sign a contract called an arbitration agreement that stipulates the time frame, the scope of the issues to be adjudicated upon and other relevant matters which the parties wish to submit to arbitration. Some arbitration agreements are very complex and comprehensive including the specific processes by which arbitration will be conducted, while other agreements are very simple. The Arbitration Act stipulates in ss. 5(3) that an arbitration agreement need not be in writing. A domestic contract covering matters governed by the Family Law Act or the Children’s Law Reform Act such as custody and access to children or support obligations must however, be in writing, signed by the parties and witnessed otherwise it is unenforceable. It is uncertain whether arbitration agreements resolving family law matters, but made outside the context of a domestic contract under Part IV of the FLA need to be in writing. It is useful to emphasize the distinction between an arbitration agreement and an arbitral award. The arbitration agreement is signed by the parties to authorize the arbitrator to act, whereas the arbitral award is the decision or reasons of the arbitrator. Subsection 32(1) of the Arbitration Act provides that parties to arbitration can choose the legal framework by which their disputes will be settled. Parties are free to adopt any “rules of law” to govern their arbitrations, so long as the results are not prohibited by law or purport to bind people or institutions that have not agreed to the process. In other words, the Act has opened the door to utilizing any code including religious principles for resolving civil matters in Ontario. According to ss. 5(5), an arbitration agreement may be revoked only in accordance with the ordinary rules of contract law. Section 6 of the Act authorizes a court not to enforce an arbitral award if the parties did not have real consent to arbitrate. Thus, if brought to the attention of a court, an arbitral agreement could be challenged on the basis that it was signed under duress, coercion, undue influence, misrepresentation or based on unconscionability. The success of a party’s attack or resistance to an arbitral award on the ground of non-consent to an arbitration agreement will depend on the facts in each case and the interpretation of consent, coercion, undue influence and/or duress given by the courts in past cases (see below “Judicial Interpretation of Private Agreements”). Subsection 50(3) of the Act provides that the court shall enforce an arbitral award. Thus, arbitration awards are final and binding in the province of Ontario unless set aside or appealed according to the Act. C. The Content of Arbitral Awards in the Family Law Context There are some limits on the substance of arbitration agreements. Theoretically, discriminatory provisions or clauses that incorporate for example a gender bias cannot be included as part of an arbitral agreement as this would likely be considered unconscionable under the principles of contract law. As a practical matter, given the private nature of arbitration a court will not be aware of unfair provisions unless a review mechanism is utilized. It is certainly not illegal to contract out of certain statutory rights. Indeed the alternative dispute resolution process encourages parties to design their own bargains that are suited to their individual needs. There are however, certain base requirements. In the family law context, agreements on property division and spousal support require full disclosure of finances from each party and a clear understanding of the consequences of the agreement. A clear understanding of the nature and consequences of the agreement typically includes the ability to read and access to independent legal advice. If these criteria are not present, a court can set the agreement aside if one party applies. Where as a result of a marriage breakdown one party would require social assistance, the government would rather have that party’s former spouse pay spousal support as required than burden the state with this matter. Thus, this may be another instance when a court could set an agreement aside. Moreover, the law does not enforce certain kinds of agreements, as contrary to public policy, such as that women remain chaste as a condition of separation. In addition, some rights, at least theoretically, cannot be waived in advance, such as the right to occupy the matrimonial home because this could impact on the rights of any children of the marriage. 1. Division of Property A married couple in Ontario has the right under the Family Law Act to an equal division of property upon the dissolution of the marriage. A married couple can agree to vary their statutory rights to the “net family property” by virtue of a domestic contract. A domestic contract may include a clause wherein the parties agree to arbitration in order to resolve their dispute. Where an alternative means of dividing the parties’ property is resolved via arbitration, a court’s primary concern on appeal will be to examine whether the arbitration order failed to consider undisclosed significant assets, whether a party understood the nature or consequences of the arbitration agreement and any other matter in accordance with the law of contract. The safeguards of the law of contract would include considering such factors as whether the parties received independent legal advice and whether an agreement may be rendered invalid by reason of duress, unconscionability, misrepresentation or inequality in bargaining power. 2. Spousal Support A court will consider similar factors in determining whether to set aside an arbitration order that dealt with spousal support between married or common law spouses or same-####### partners. If an agreement produces unconscionable results or will force family dependants to seek public assistance or if the terms of the arbitration agreement were being breached, a court may grant an order respecting spousal support that overrides the terms of the arbitral award. 3. Custody, Access, Child Support and Other Matters Involving Children Because the Arbitration Act provides no express limits to the content of arbitrations, parties can have matters such as custody, access, child support and other matters including the moral and religious education of their children arbitrated upon. In fact, private agreements regarding custody and access are far more common than court mandated orders. The Islamic Institute of Civil Justice has made statements to the effect that custody, access or child support matters will not be arbitrable. In fact, there is no legal impediment to doing so. As child support falls under the joint jurisdiction of the provinces and the federal government, an arbitrator will be unwise to stray far from the Child Support Guidelines. Section 56(1.1) of the FLA additionally provides that a court may disregard any provision of a domestic contract where the child support provision is unreasonable having regard to the child support guidelines. The Ontario Superior Court of Justice has noted that though the Arbitration Act governs all types of civil disputes, its clauses are not framed particularly for family law and “still less are they drawn for custody and access matters.” Significantly, in Duguay v. Thompson-Duguay and Hercus v. Hercus, the Court explicitly held that it retains its inherent parens patriae jurisdiction to intervene in arbitral awards where necessary in the “best interests of the children.” The courts’ parens patriae jurisdiction refers traditionally to the role of the state as sovereign and guardian of persons under legal disability such as minors or the mentally unwell. However, because arbitration is a private order any award affecting children would only be alterable if brought to the attention of courts. D. Court Intervention in Arbitral Agreements and Awards There is no guarantee that arbitration will eliminate time-consuming and expensive litigation as the Arbitration Act provides a procedure by which a party can appeal and/or judicially review an arbitral award under certain circumstances. Arbitration does not necessarily lead to court intervention. Parties may be satisfied with their arbitral awards or unable for a variety of reasons to bring the matter to court. Arbitrations and the awards that result from them are by their nature private. Unless the awards are challenged in court or need to be enforced, the process remains outside the public realm. Particular arbitral tribunals may, but are not required to develop their own rules with respect to the keeping of records and/or transcripts. For some participants this privacy is considered one of the attractions of the arbitration process, but for others it could result in isolation and the privatization of oppression. As the Ministry of the Attorney General points out in a letter to the Canadian Council of Muslim Women: Even plainly illegal activities may occur unless state authorities find out about them in some way. Similarly, people may suffer from unjust arbitral awards, unless they bring them to the attention of the courts. The following sections will delineate the distinction between appeals and judicial review and outline the circumstances when such procedures may be available. 1. Appeal Process Section 45 of the Arbitration Act outlines the details of the technical right of appeal available to a party. Where an arbitration agreement makes no mention of appeals on questions of law, a party may appeal an award with the permission of the court. Permission will only be granted where the court is satisfied that the matter is of sufficient importance to the parties and the determination of the question of law will significantly affect the rights of the parties. Arbitration agreements that specifically provide for rights of appeal on questions of law, questions of fact and questions of mixed fact and law will be examined by the court and the court may require an arbitral tribunal to explain any matter. The remedies available to a court are to confirm, vary or set aside an arbitral award or remit the matter to the arbitral tribunal with the court’s opinion and/or directions. In an appeal, a court is entitled to afford a certain deference or regard to the arbitrator’s decision. The appropriate degree of deference is called the standard of review. In Robinson v. Robinson, a family law decision of the Ontario Superior Court of Justice, the court noted “that a court should not interfere with the arbitrator’s award unless it is satisfied that the arbitrator acted on the basis of a wrong principle, disregarded material evidence or misapprehended the evidence.” Generally, courts will be strict in their review of pure questions of law and will replace the opinion of the arbitrator with their own. That is, an arbitrator’s decision will have to be “correct” if it is not to be overturned. If a party to arbitration under the Islamic Institute of Civil Justice appealed a pure question of law to a court, it is most likely that the applicable law wherein a tribunal must be correct would be Canadian law and not, any version of the sharia opted into by the parties. The underlying rationale for this standard is the principle of universality which requires appellate courts to ensure that the same legal rules are applied in similar situations. An alternative possibility is that the court will decide an appeal based on sharia according to the rules of inter-state arbitration. Thus, if the parties agree to the substantive law of another jurisdiction, at the arbitration itself arguments will be made on both sides as to what the law of that jurisdiction actually is. An appellate court would use this record to make its decision as to whether an error has been made in the law of that jurisdiction. Where there is incomplete information in the record or where parties have not argued the law of the foreign jurisdiction, the court will assume that the foreign law is the same as Ontario’s law. Importantly, under this situation parties to arbitration or their lawyers/other representatives will be required to argue the relevant “rules of law”. This could provide the strongest protection for vulnerable parties particularly where there is a concern that an award may permit something that would be contrary to Ontario’s family law regime as by default the assumption of the court will provide a type of statutory minimum standard. However, an inevitable consequence of this rule will likely result in a battle between the more conservative and modernist Islamic scholars who will be used as experts at the arbitration to determine the nuances of sharia law. For parties concerned about unjust arbitral awards, the mechanism of appeal is the strongest safeguard against awards that are contrary to Canadian law. The findings of fact made by an arbitrator are owed the highest degree of deference. They cannot be reversed unless the arbitrator has made a “palpable and overriding error.” This standard recognizes that the trier of fact is better situated to make factual findings owing to her/his extensive exposure to the evidence, the advantage of hearing oral testimony including assessing the credibility of witnesses, and the familiarity with the case as a whole. It is very unlikely for a court to overturn an arbitrator on a finding of fact. Similarly, questions of mixed fact and law will only be overturned where the arbitrator has made a palpable and overriding error. If however, the arbitrator has made some extricable error in principle with respect to the characterization of the law or its application, the error may amount to an error of law and is therefore subject to the highest standard of correctness. Importantly, parties to arbitration can agree to waive their rights of appeal in the arbitration agreement. It is most likely that parties will contract out of their appeal rights particularly where the intent and purpose of seeking arbitration is to be subjected to an alternative legal framework to that provided by Canadian courts. This severely limits the oversight of arbitral awards that courts can provide, however it does not constrain the courts entirely. 2. Process of Judicial Review There are situations through judicial review when a court can set an arbitral award aside because the Arbitration Act provides that parties cannot agree either expressly or by implication to vary or exclude section 46 (setting aside an award). Judicial review, unlike the appeals process, tends to be rooted in matters of a procedural nature (See below “Setting Aside Arbitral Agreements and Awards”). The standard of review used by the courts in judicial review of an arbitral award is a complex test that incorporates a variety of different factors used to determine how much deference should be given to