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Bakht - Arbitration, Religion and Family Law

Arbitration, Religion and Family Law: Private Justice on the Backs of Women

Natasha Bakht
National Association of Women and the Law
Ottawa, ON

Research Paper
March 2005

Print (, 549 KB)

Outline

Acknowledgments

Introduction

Part One: Family Arbitration Using Sharia Law

• Arbitration and Family Law in Ontario
  1. Ontario’s Arbitration Act
     • The Role of Arbitrators
  2. The Arbitration Process
  3. The Content of Arbitral Awards in the Family Law Context
     • Division of Property
     • Spousal Support
     • Custody, Access, Child Support and Other Matters Involving Children
  4. Court Intervention in Arbitral Agreements and Awards
     • Appeal Process
     • Process of Judicial Review
     • Setting Aside Arbitral Agreements and Awards
     • Declaration of Invalidity by a Non-Party
     • Unusual Remedies
  5. Judicial Interpretation of Private Agreements
     • The Interpretation of Voluntariness and Free Will
  6. Judicial Interpretation of Islamic Agreements
     • Legal Representation
  7. Multiple Interpretations of Sharia Law
     • Reservations to CEDAW: Example of the Diverse Application of Sharia Internationally

• The Potential Impact of the Arbitration Regime on Women
  1. Section 15 Charter Analysis
     • Standing: Who Can Invoke a Charter Right
     • Distinction in Purpose or Differential Treatment in Effect
     • Based on an Enumerated Ground
     • Whether the Distinction or Differential Treatment is Discrimination
     • Section 1 of the Charter
     • Conclusion

Part Two: Human Rights Framework

• Culture and multiculturalism
  1. Multiculturalism in Canada
  2. The Multiculturalism Paradox
  3. The Impact of Accommodation on Minority Women
• Religious freedom
  1. Freedom of Religion Under Domestic Law
  2. Religious Freedom Under International Law
• The Legal Supremacy of Women’s Rights in the Charter and in CEDAW
  1. International Legal Framework
  2. Canada’s Rights Regime
  3. Islam and the Conflict between Women’s Rights and Religious Practice
  4. Conclusion: Universality and indivisibility of human rights

Part Three: The Separation of “Church” and State

• Basic concepts and historical contex
• Considerations in the Canadian Context

Part Four: Law Reform Options

• Islamic Institute of Civil Justice: Muslim Sovereignty
• Canadian Council of Muslim Women: One law for All
• Marion Boyd Recommendations
• Reformist feminist proposals:
  1. Dual Governance
  2. Women’s Legal Education and Action Fund Proposal
• National Association of Women and the Law
  1. NAWL Opposes Arbitration in Family Law
  2. NAWL Opposes Faith-Based Arbitration in Family Law
  3. A Framework for Mediation
  4. Improving the Justice system
  5. Conclusion