The Arbitrariness of Ontario’s Arbitration Act: Examining the Impact on Women

Posted 2004-10-11 by Natasha Bakht | Jurisfemme Publications – Volume 23, No. 2, Fall 2004

In many parts of the world, religious groups have been working to implement policies that would influence the manner in which society is run. It has been argued that this use of religion for political influence threatens to undermine hard won entitlements to equality and basic human rights. In Canada, much media attention has recently been focused on the formation of arbitration tribunals that would use Islamic or Sharia law to settle civil matters in Ontario. Some journalists have succumbed to an anti-Muslim sentiment in reporting this issue. The colonialist stereotype of Muslims as barbaric and in need of “civilizing” has been perpetuated in certain media reports. This sensationalized essentialism does nothing to forward the cause of women’s equality and the writer in no way supports these points of view.

NAWL, in partnership with the Canadian Council of Muslim Women (CCMW) and the National Organization of Immigrant and Visible Minority Women of Canada (NOIVMWC), studied this issue by examining the implications of Ontario’s Arbitration Act (the Act) on family law matters in particular. Preliminary research has identified several problems with the current Act that could potentially have a disparate impact on women.

Most troubling is that s. 32(1) of the Act allows parties to agree to have their family law disputes resolved using any “rules of law” with no consideration to the applicable standards of the Family Law Act, the Divorce Act or the Children’s Law Reform Act. Indeed, as the Act currently stands, any conservative, fundamentalist or extreme right wing standard can be used to resolve family law matters and this resolution can, in turn, be filed and enforced by a court.

In arbitration, unlike mediation, once the parties have signed an agreement to arbitrate, they do not have the option of withdrawing. This can be particularly problematic when 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 the use of arbitration. Arbitration based on religious principles can pose problems for individuals whose religious beliefs may change over the course of time.

There is some protection against unjust arbitral awards dealing with custody, access and child support matters because the courts retain their parens patriae jurisdiction to intervene when necessary in the “best interests of the child”. This tool of judicial oversight can, however, only be used if the matter is first brought to the attention of a court. Arbitrations and the awards that result from them are, by their nature, private. Women will not always have the emotional or financial resources required to pursue a matter in court, resulting in isolation and the privatization of oppression.

The inability to foresee what approach courts will take in their review of arbitral awards exacerbates these problems. Firstly, it is likely that parties will contract out of their appeal rights in arbitration agreements, resulting in very limited judicial oversight through the mechanism of judicial review. Secondly, the judicial tendency towards upholding parties’ private bargains is worrisome, especially where the agreement is found to be unfair and/or deviates from the statutory matrimonial property regime. The purported rationale is that a court should be reluctant to second-guess the arrangements on which people reasonably expected to rely. Where a party has received independent legal advice, it is even more likely that a court will show deference to an arbitrator’s decision.

NAWL, CCMW and NOIVMWC are most concerned about the impact of the arbitration regime on groups of women who are already marginalized in society. New immigrant women are vulnerable because they may be unaware of their rights in Canada or may accept arbitral decisions that seem equal to or better than what might be available in their country of origin. A battered woman does not have the autonomy needed to negotiate the terms of an arbitration agreement in a way that is fair because of the control an abuser has over her. An immigrant woman who is sponsored by her husband is in an unequal relationship of power with her sponsor, making consent to arbitration illusory. Linguistic barriers also disadvantage women who must depend on family or community members for translation.

One of the consequences of the “privatization of justice” is that social inequities may be reproduced in privately ordered agreements, and yet remain hidden from the public eye. With no legal aid or mandatory legal representation, there are serious concerns about whether women will be truly free in their choice to arbitrate. Women may be susceptible to subtle but powerful compulsion by family members or may be the targets of coercion and pressure from religious leaders for whom there may be a financial interest in parties seeking arbitration. The Arbitration Act threatens to undermine the beneficial developments made for women in family law by providing no safeguards whatsoever to ensure women’s equality.

Natasha Bakht was the principal researcher for our working group of partners (NAWL, CCMW, NOIVMWC) which is examining the impact on women of family law arbitration which uses sharia law. She is currently pursuing her LL.M as a Hauser Global Scholar at New York University.