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Bakht - Arbitration, Religion and Family Law

Introduction

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Part One: Family Arbitration Using Sharia Law >

In Canada and other parts of the world, many religious groups have been organizing to implement policies that would influence the manner in which civil society is run.  It has been argued that this use of religion for political gain threatens to undermine hard won entitlements to equality and basic human rights.[1]  Much media attention has recently focused on the issue of the formation of arbitration tribunals that would use Islamic or sharia[2] law to settle civil matters in Ontario.[3]  Certain members of the Muslim community in Toronto belonging to the Islamic Institute of Civil Justice have proposed such tribunals.  In fact, the idea of private parties voluntarily agreeing to have their disputes resolved by an arbitrator using a foreign legal system is not new.  Ontario’s Arbitration Act[4] has allowed parties to resolve disputes outside the traditional court system for some time.  Other religious groups including several Jewish communities have created Jewish arbitration tribunals or Beis Din in order to resolve civil matters between individuals using the Arbitration Act.  Some of these tribunals have been sitting in parts of Canada since 1982,[5] setting a precedent for Muslim communities to do the same.[6] 

The primary purpose of this paper is to examine the legal implications of arbitration tribunals that will utilize sharia[7] law in Ontario.  Part one of the paper will investigate the role of arbitrators, the mechanisms for appealing arbitral awards to the courts, judicial interpretation of arbitral agreements and awards, the importance of legal representation and the gender-based impact on women with an accompanying analysis of the section 15 right implicated under the Canadian Charter of Rights and Freedoms.[8]  Key sections of the Arbitration Act will be examined and contrasted with the reality of how such clauses are likely to be interpreted to the disadvantage of women.   The general process of arbitration in Ontario will also be outlined.  Though the scope of arbitration tribunals can include a wide range of legal areas, the principal area of inquiry of this paper will be family law with a particular emphasis on the impact that sharia law could have on Muslim women[9] in Ontario.  The paper will also consider the broad issue of the increasing privatization of family law.