Ontario: One Family Law for All

Posted 2006-02-01 by Alia Hogben | Jurisfemme Publications – Volume 24,  No. 1, Winter 2006

At issue was a proposal to bring faith-based arbitration to family law in Ontario. Thanks to the power of grassroots activism, encouragement from international organizations, and strong support from prominent and ordinary citizens, the coalition of organizations for No Religious Arbitration including the National Association of Women and the Law was able to convince the Premier of Ontario to make a just and fair decision.

We applaud the Premier for recognizing that the use of religious law in legally binding private arbitration for family matters is against fundamental Canadian values of equality and the welfare of families.

We worked to focus the discussion so that it was about women’s equality rights and the privatization of justice. We argued that the issue was neither multiculturalism nor religious freedom and that raising these obscured the real issues. We also tried to explain why the focus should not be Muslims/Islam/Sharia/Muslim family law, as this essentially discriminates against one group of citizens.

Two professors of law, Jean Francois Gaudreault-Desbiens and Lorraine Weinrib, have stated clearly in recent articles why the use of religious arbitration jeopardizes the rights of the person as stated in the Canadian Charter. Gaudreault-Desbiens says fundamental questions are raised such as:
- what is the role of the State in the issue of religious arbitration;
- are there limits in private justice;
- are all issues amenable to arbitration;
- what exactly is understood about multiculturalism within the framework of Canadian citizenship;
- and what is the balance between the rights of the individual and the rights of the group.

His thesis is that the State should not intrude in matters of religion, while at the same time the State must enforce core constitutional values such as equality and non-discrimination in all its policies. The State should have a strong interest in retaining control over constitutional values such as the “dignity and equality” of the person. Even if there is a slight risk of conflict between interpretations of religious laws and the values of international laws, the State must not allow for private arbitration. Further, he says that it is incorrect to set the argument as one of equality versus religious freedom or multiculturalism. The principle of equality is an over-arching principle in the Charter.

Professor Weinrib writes that the discussion about religious arbitration has raised “the highest principle within the modern state (...) which is to recognize and affirm the full personhood of every member of society.” She agrees that the Charter enshrines our values of equality, religious freedom and multiculturalism, with equality of all persons overriding other rights. The individual personhood and equality of men and women
take precedence over religious life and communal membership. The state cannot justify “any encroachment upon gender equality on the basis that the encroachment respects or forwards multiculturalism.”

She concludes, “it would be contrary to our constitutional framework to allow state endorsement of religious rulings that may undermine the full personhood of members of Canadian society.”

From this experience of activism and advocacy, we learned some valuable lessons.

- Women’s rights cannot be taken for granted, and can easily be jeopardized even in a liberal, western democracy.

- Because some see women’s rights as less valuable than religious rights, there can be a huge disconnect between religion and equality rights for religious women. We learned that the issue could be manipulated by raising the spectre that multiculturalism is under threat and suggesting that valuing pluralism means promoting the practice of different legal systems by minority groups.

- We learned that for some, the rights of minority groups have become paramount, without proper consideration for the rights of the individual within the group. In a liberal democracy, religious diversity should mean that each person has the freedom to practice her or his own faith without discrimination or hindrance. The state should ensure this right so that no one group can impose its religious teachings on others.

- Muslim women must educate themselves so that the messages of Islam are not filtered and distorted through others, and we can understand the humane teachings of the faith.

- The civil justice system in Ontario has many problems - it is overcrowded, it can be racist, it is difficult for newer immigrants to access - that must be addressed so that all Ontarians will have true access to their public justice system.

- The means of creating change is through public discussion and a democratic process. We learned that we had to create partnerships and collaborate with a number of national and international organizations. We were extremely fortunate in having more than 100 organizations take on this issue, not because they felt sorry for Muslim women but because they understand that the issue is universal, fundamental, and affects more than one group of women and children. Our success showed the strength of the coalition based on justice and equality of all Canadians regardless of ethnicity, race or religion.

The work of the coalition continues. The next step is to ensure that the government revises the Arbitration Act, reviews the Family Law Act to address its shortcomings, and enhances the court system by providing legal aid and cultural interpreters so that it is more accessible for all, including for newer immigrants.

Though there were periods when we were discouraged and disillusioned, the strength of the coalition and our belief in our goal kept us going. It has been a heartening experience and we are convinced that the partnerships will endure to work together on other issues.

Alia Hogben is the Executive Director of the Canadian Council of Muslim Women.