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Arbitration in family law: Difficult choices

Whatever the Ontario government does, it won’t satisfy everybody

by Marion Boyd

In response to loud protests over the use of shari‘a (Islamic law) in Ontario, Premier Dalton McGuinty made comments to the press in early September suggesting that he is prepared to outlaw religious courts in Ontario. While this statement was intended to end the controversy, at the time of writing (early October) the government’s intentions remain less than clear. An official statement by Attorney General Michael Bryant indicated a somewhat different course of action: to make all family law arbitration subject to Ontario family law. The Premier has promised to introduce legislation this fall, and until that legislation is available, it is difficult to analyze its impact. Whatever the government does, it is important to understand the background to the controversy and the issues at stake.

The protests were based on the mistaken impression that Ontario was about to pass legislation that would allow Muslims to deal with family law disputes through private arbitration using Islamic law and would require Ontario courts to enforce such arbitration decisions. In fact, the current law already provides for these results. I conducted a review of the Arbitration Act for the Ontario government and submitted my report in December 2004. My main recommendations were that the government make legislative, regulatory and policy changes to circumscribe and curtail the Act’s application by specifying safeguards to protect vulnerable parties before arbitration can be used to resolve family law disputes.

Islamic law became a public issue in Ontario following the announcement that a particular organization, the Islamic Institute of Civil Justice (IICJ), had incorporated as a business and would henceforth provide Muslims in the province with a “shari‘a court.” Its main proponent, Syed Mumtaz Ali, a known advocate of self-determination for Muslims in Canada in a manner similar to the rights of Aboriginals and Quebecers, proclaimed that the decisions of arbitrators would be final and binding, not subject to court review but eligible for court enforcement. He suggested that since this option was now available to Muslims, “good Muslims” would be required, as part of their faith position, to settle all their disputes only in this way.

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About the Author

Marion Boyd





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