An Open Letter Opposing the Use of Arbitration & Faith-Based Tribunals in Family Law in Ontario

February 24 2005

Honorable Dalton McGuinty, Premier of Ontario
Honorable Michael Bryant, Attorney General of Ontario
Honorable Sandra Pupatello, Minister Responsible for Women’s Issues

I am writing on behalf of the National Association of Women and the Law, in response to Marion Boyd’s report entitled “Protecting choice, Promoting Inclusion”. NAWL participated in Ms Boyd’s consultation, and voiced our serious concerns with the impact of faith-based arbitration on women’s equality rights. NAWL is very disappointed with the Boyd report, and we are writing to you today to request that you not implement it’s main recommendations, to the effect that arbitration in family cases and in particular faith-based arbitration be recognized and regulated by your government. Indeed, NAWL altogether opposes arbitration in family law, in particular the use of faith-based arbitration in family law, for the following reasons.

1. NAWL Opposes Arbitration in Family Law

After more than a century of struggle, we have achieved substantial law reform in Canadian family law. From Rathwell to Moge, women have fought hard battles to gain equality and basic human rights in the family. By collectively identifying the political in the personal, women have challenged the rules that regulate the “private” sphere and greatly diminished its patriarchal bias. While arbitration may be suitable in the commercial law setting, it is entirely inappropriate in family law where gender dynamics, unequal power relations between men and women and systemic discrimination are always at play.

As currently practiced, arbitration allows people to pick and chose the law that will apply to them. Arbitration in family law is a convenient method of circumventing democratic law reform that not coincidentally displeases many historically privileged groups, including men. Arguably, arbitration is a form of “backlash” to feminist reform in different areas of the law, aimed at re-establishing impunity and power historically exercised by men. By promoting a “choice of law”, the government is currently facilitating the disappearance of hard-won progressive developments in the law. When justice is privatized, public policy ceases to rule. As a society family arbitration pulls us in the opposite direction of our post-Charter constitutional mandate of respecting and promoting equality.

The Boyd report claims that arbitration is not subject to the Charter because it is a “private” affair. Given that arbitration is regulated by the Arbitration Act 1991, this is a most surprising and in our opinion, a legally unsound analysis. Boyd’s conclusion that the government has no obligation to ensure that women receive an egalitarian outcome from the arbitration process is an interpretation that is counterproductive to the goal of ensuring the “progressive realization” of women’s human rights.

Arbitration in family law effectively introduces a “two-tier” system of justice. The standard forfeiture of the right to appeal arbitration, and the weight given in law to the decision of the arbitrator ensures that arbitral awards will be very difficult to overturn. The prevailing law will in fact be the law of the religious, cultural and political elites that organize the arbitration procedures in their communities. These “freely chosen” arbitrators will be the new judges of women, imposing their own principles as the law of the land. This practice is a direct threat to the rule of law, whereby the exercise of all legal power must find its source in a legal rule or positive law. By contrast, in Quebec arbitration in family law is explicitly prohibited by the Quebec civil code.

Marion Boyd has argued that it is inappropriate to require a universal application of the laws adopted to protect women in the “private” sphere and that women should be free to “live as they choose”. This neoliberal vision of “choice” disregards not only the painful dynamics of divorce and separation, but most importantly, the overall social and economic context of the lives of many women: susceptibility to homelessness upon the breakdown of a marriage, the precariousness of immigration status, abject poverty and persistent racism. Given the inability of most women to afford legal counsel and the fact that ideological and religious groups may offer free mediation and arbitration services, women’s free choice remains dubious.

While the Canadian government and even the international legal order has come to recognize their obligation to correct violations against women in the “private” sphere, arbitration threatens to put women back to the realm of “family government” principles or the rules of religious elites who have not demonstrated a commitment to the egalitarian principles established through the years. In a society where sexual inequality of women is still systemic, women need to be ensured of “equal protection” and “equal benefit” of the law. All women need to be secure in the knowledge that they will be protected by state legislation and official courts that are accountable and that act according to the rule of law and democratically- adopted legal frameworks.

2. NAWL Opposes Faith-Based Arbitration in Family Law

Given that religious freedom, both domestically and internationally, may include the right to create religious tribunals, NAWL acknowledges that people are free to participate in religious processes that may involve family matters. Parties must be free to adhere to the recommendations of religious authorities according to their faith. However, the decisions of religious authorities ought not to have any civil effect and they should never be legally binding. Any family law decision coming from a religious tribunal should thus be advisory only.

Religious arbitration in family law offends the tenet of separation of “church” and state. A religious authority invested with the power of rendering an enforceable order, typically without the possibility of appeal, is transformed into a legal authority. This blurring of the distinction between religion and law erodes the authority of the state in the elaboration of legal rules that should have universal application to all persons living within its jurisdiction. As the former Quebec Minister of Justice, Paul Bégin has noted in a text that was published in Le Devoir on January 12, 2005:

“The conduct of men and women in our society must under no pretext be placed under the rule or laws of religion…[A]ll persons have the inalienable and non-negotiable right to invoke the law, above and beyond any religious rule…they have the right to the protection of the law at all times and in all circumstances…The creation of [religious tribunals] under discussion in Ontario represents a major and dramatic setback for women and children’s civil rights, to which we cannot consent under the guise of freedom of religion or reasonable accommodation.”

Indeed enforceable faith-based arbitration may be incompatible with freedom of religion itself, which as the Supreme Court has noted most recently in the Amselem decision recognizes individual liberty and subjective choice in the interpretation of religious norms. The interpretation of a religious obligation by an arbitrator may be in conflict with an individual’s understanding of the religious precept. Thus, when a religious order is given legal effect it could force an individual to act contrary to her belief.

The fact that most religions can be interpreted as endorsing male domination and female inferiority, sanctioning religious decision-making as part of the legal order would very often condone the commission or the perpetuation of potential discriminations. We share the concerns expressed by the Canadian Council of Muslim Women in their January 14 2005 letter: “Our members are very concerned that the use of Muslim family law will erode the equality rights of Muslim women that are guaranteed under the Canadian Charter of Rights and Freedoms…Sanctioning the use of religious laws under the Arbitration Act will provide legitimacy to practices that are abhorred by fair-minded Canadians, including Muslim women.”

No one should be forced by a state sanctioned legal mechanism to respect a religious injunction. All men and women, whatever their culture or religion, have a right to equality and justice and to the enjoyment of all of their universally recognized and constitutionally entrenched human rights. Thus, NAWL opposes the use of religious principles as a legal framework for arbitration in family law, as it currently exists under Ontario’s Arbitration Act.

3. Regulate Mediation

NAWL recommends that mediation be regulated and controlled by the legislative frameworks that exist both federally and provincially. Individual choice must be exerted within the bounds of legislatively recognized entitlements that were adopted with a view to removing sexual inequality in the family. Thus, decisions of religious authorities, or any other body that performs informal mediation or provides advice, can be the basis of a mediated settlement, agreed upon by both parties, but only if it conforms in substance to the rights that are recognized for women in Ontario’s family legislation and case law.

In the context of pervasive oppression or discrimination, consent should never be allowed to validate discriminatory religious or cultural practices that exacerbate women’s inequality. Thus even though parties agree with a religious authority’s recommendations in the context of a separation or a divorce, consent cannot be legally binding if the settlement does not substantively conform with equality and the human rights framework.

4. Improve the Justice System

NAWL recognizes the continued deficiencies within the traditional court system and the need to address them. But these deficiencies should not justify the development of a parallel legal order, controlled by minority communities or religious groups. On the contrary, the government must renew its commitment to accessible justice, in a climate that does not tolerate racism and that accommodates cultural diversity.

In recognition of the fact that many people from racialized and religious communities do not find comfort in the traditional court system, NAWL recommends the continued accommodation of culture and religion in the courts by way of training and education for judges, lawyers, mediators, court clerks and others to increase their understanding and knowledge of non-Judeo-Christian cultural and religious beliefs and values with respect to family issues.

As METRAC has recommended in its’ January 27 2005 letter, concerted efforts must be made to improve the traditional court system rather than creating a two-tier system of justice. Accordingly, the family courts must be made more efficient such that cases move through the system more quickly, effectively and fairly. Consultations must be held with religious and cultural communities to explore methods of sensitizing the family court system. The Government of Ontario must ensure that family court judges, lawyers, mediators and others properly take into account the issues of women’s equality rights and violence against women to improve the quality of outcomes in family court. The Government of Ontario must work in collaboration with appropriate community groups (including women’s equality-seeking groups as well as religious and cultural groups) to develop educational materials about women’s rights and Canadian family laws, to be designed to meet the diverse needs of different communities. Finally, it is imperative that access to justice is ensured and that poverty not be bar to the enjoyment of human rights. As such, the dismal situation of funding for Legal Aid Ontario must be improved to ensure proper legal representation for all.

Conclusion

Ontario and Canada are bound by human rights obligations included in the Canadian Charter of Rights and Freedoms, and international human rights instruments, such as the Convention on the Elimination of all Forms of Discrimination against Women that requires that the state protect disadvantaged individuals and groups. A government must not, either by positive action or by omission, maintain legislation and policies that have a discriminatory impact on women particularly when they have a disparate impact on women of colour and/or women from different religious minorities. Such legislation and/or policies cannot be justified in a free and democratic society.

A system of justice that privatizes family law abrogates the state’s responsibility toward its people. The government of Ontario must rectify the current situation of injustice and create a system whereby each individual’s human worth and dignity are protected. The people of Ontario, the rest of Canada and indeed the global community await a proper resolution of this matter. The current situation and the recommendations made by Marion Boyd contravene Canada’s human rights obligations and are simply unacceptable.

Looking forward to your reply,

Andrée Côté
Director of Legislation and Law Reform
National Association of Women and the Law