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Bakht - Arbitration, Religion and Family Law

Part 1 - I. Arbitration and Family Law in Ontario

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Part One: Family Arbitration Using Sharia Law

I.     Arbitration and Family Law in Ontario  

Although the bulk of this paper addresses the distinct circumstances of family arbitration in Ontario, most other provinces of Canada have also enacted arbitration legislation.  The debate in Ontario surrounding the use of religious principles to resolve family law matters will have implications for many of the provinces of Canada.  It is hoped that the issues raised in this paper, specifically the suggestions for law reform will influence Ontario, other provincial governments and the federal government to reexamine the situation of family law and arbitration, in particular, its implications for women. 

A.          Ontario’s Arbitration Act

Arbitration is a form of alternative dispute resolution by which people are given a voluntary alternative to the increasingly lengthy and expensive cost of litigation under the traditional court system.[1]  Under arbitration, parties agree to have their dispute settled by an adjudicator agreed upon by both parties.  Ontario’s Arbitration Act, amended in 1991, sets out the rules to be used in resolving civil disputes.  For example, the Act sets out how the arbitrator is appointed and how he or she conducts the resolution of disputes.  The parties are given much freedom to design their own processes because arbitration is considered a private system that is entered into by agreement.

In the family law context, mediation and arbitration are perhaps the most common alternatives to litigation.  In mediation the parties design an agreement themselves with the assistance of a neutral mediator.  This is considered advantageous because lawyers often cannot predict what a judge will do if disputed issues go to trial.  A settlement, such as a separation agreement, gives the parties control over their own financial and property rights and can be filed with a court and then enforced as an order.  It can also ensure that values different from those propagated by the state can serve to guide individuals’ interests.  Mediation ensures privacy and can promote more constructive parenting relationships after divorce in cases where there is no abuse or oppression.  Notably however, there has been much feminist critique of the perils of mediation generally and within the context of domestic violence.[2]  Mediation is regarded as a consensual process, from which a party is free to withdraw at any time.

The use of arbitration is a relatively new development in family law.  The Arbitration Act was amended in 1991 with a view to resolving civil disputes in a more cost effective manner.  The original intent of the act was likely to increase efficiency in primarily commercial and not family law matters.[3]  Arbitration is different from mediation in that the parties agree to have a third person adjudicate their dispute for them in a similar manner that a judge would.  Some perceived advantages to arbitration are that the process is considered private, is often less expensive than litigation and an arbitral award can be filed with a court and then enforced as a court order.  Filing an arbitration order with a court is neither mandatory nor does it represent court oversight of an arbitral award.  It merely means that a party to the arbitration agreement has recourse to enforcement should another party fail to abide by the arbitrator’s decision.  Once an arbitration agreement is signed, the parties do not have the option of withdrawing from arbitration.  This can be particularly problematic where 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 wanting to submit a dispute to arbitration.  In the context of arbitration using religious principles, this may pose problems for the individual whose religious beliefs change over the course of time.    

The Arbitration Act allows parties to arbitrate most civil matters without express limits.  Arbitrators however, may only impose such decisions on parties that the parties could bind themselves to directly.  In other words, matters of a criminal nature that involve the state, or disputes involving individuals or institutions who have not agreed to arbitrate are not matters that can be arbitrated upon.  Similarly, disputes involving public status such as marriage and divorce cannot be resolved by arbitration.  Divorce is additionally, a federal matter and thus, is also outside the provincial jurisdiction of arbitration.  Typical disputes that are resolved via arbitration are commercial disputes, construction disputes, rental disputes and intellectual property issues.  Certain family law matters particularly upon the dissolution of a marriage or common law relationship can also be submitted to arbitration, for example spousal support or a division of matrimonial property.   

1.         The Role of Arbitrators

Ontario’s Arbitration Act allows consenting parties to have their disputes settled by any mutually agreed upon person.  Arbitrators are required by ss. 11(1) of the Act to be

independent and neutral as between the parties, unless the parties decide otherwise.[4] 

The Act does not require arbitrators to have any special training since the parties are free to choose whomever they believe will be the most appropriate person to resolve their dispute.[5]  Pursuant to ss. 10(1) of the Act, anyone who can get her/himself chosen by disputants or by a court can be an arbitrator.  Arbitrators are required by ss. 11(2) and (3) of the Act to disclose to all parties any circumstances of which she/he is aware that may give rise to a reasonable apprehension of bias. 

Arbitrators are lawyers or private citizens who may or may not make a living through adjudication.  Generally, private parties appoint arbitrators and they pay the arbitrator’s fees.[6]  If however, the parties to arbitration cannot agree on who should arbitrate a matter, a court can be asked to appoint someone under ss. 10(1) of the Act.  The court will normally appoint someone based on suggestions made by one of the parties.  Arguments are made by both parties to persuade the court as to who to appoint. 

Though several media sources have noted that the Canadian Charter of Rights and Freedoms is the supreme law of the land that will preclude discriminatory provisions in arbitral agreements, it must be recalled that arbitration impacts only civil disputes.  The Charter is legislation that applies to state action and not disputes between private individuals.  Thus, the Charter does not bind arbitrators per se.  Where however, an arbitral award is filed with a court and enforced as an order governmental action may well be implicated.  Though the Charter became part of the Constitution of Canada in 1982 and by virtue of s. 52(1) of the Constitution Act, 1982 any law that is inconsistent with the Charter “is to the extent of the inconsistency of no force or effect”,[7] it is difficult to predict what impact this will have on legislation that allows two parties with informed consent to agree to arbitration using any “rules of law.”[8] 

Traditionally perceived as facets of private life protected from state intrusion, certain family law matters have been acknowledged as subjects of public scrutiny and influence.  For example, in the matter of spousal support where government action is not implicated, the courts have utilized a process of interpretation by which Charter values have been imported into disputes between private individuals in order to recognize and redress historic disadvantages endured by women.[9]  An argument can be made that arbitration involving family law, no matter what legal framework is used to resolve the dispute, should by analogy and in order to maintain coherence in the law also import Charter values.  Alison Harvison Young makes the major claim that substantially because of the Charter family law can no longer be characterized as falling within the domain of private law.  The Charter has “articulated values such as equality that form a framework or backdrop of principle, in turn creating an overall degree of integrity or coherence” and it has legitimated a methodology of adjudication that openly articulates policy considerations.[10]

However, should reliance be placed on Charter values, there is no reason why only equality and not other Charter rights such as freedom of religion would be selectively included in determining the content of private agreements.  It has been suggested that the progressive changes evident in family law over the years are not simply the result of Charter values, but the robust values of equality indigenous to family law.[11]  

B.      The Arbitration Process

Parties to arbitration and sometimes their chosen adjudicator sign a contract called an arbitration agreement that stipulates the time frame, the scope of the issues to be adjudicated upon and other relevant matters which the parties wish to submit to arbitration.  Some arbitration agreements are very complex and comprehensive including the specific processes by which arbitration will be conducted, while other agreements are very simple.  The Arbitration Act stipulates in ss. 5(3) that an arbitration agreement need not be in writing.  A domestic contract covering matters governed by the Family Law Act or the Children’s Law Reform Act such as custody and access to children or support obligations must however, be in writing, signed by the parties and witnessed otherwise it is unenforceable.[12]  It is uncertain whether arbitration agreements resolving family law matters, but made outside the context of a domestic contract under Part IV of the FLA need to be in writing.       

It is useful to emphasize the distinction between an arbitration agreement and an arbitral award.  The arbitration agreement is signed by the parties to authorize the arbitrator to act, whereas the arbitral award is the decision or reasons of the arbitrator.  Subsection 32(1) of the Arbitration Act provides that parties to arbitration can choose the legal framework by which their disputes will be settled.  Parties are free to adopt any “rules of law” to govern their arbitrations, so long as the results are not prohibited by law or purport to bind people or institutions that have not agreed to the process.  In other words, the Act has opened the door to utilizing any code including religious principles for resolving civil matters in Ontario. 

According to ss. 5(5), an arbitration agreement may be revoked only in accordance with the ordinary rules of contract law.  Section 6 of the Act authorizes a court not to enforce an arbitral award if the parties did not have real consent to arbitrate.  Thus, if brought to the attention of a court, an arbitral agreement could be challenged on the basis that it was signed under duress, coercion, undue influence, misrepresentation or based on unconscionability.  The success of a party’s attack or resistance to an arbitral award on the ground of non-consent to an arbitration agreement will depend on the facts in each case and the interpretation of consent, coercion, undue influence and/or duress given by the courts in past cases (see below “Judicial Interpretation of Private Agreements”). 

Subsection 50(3) of the Act provides that the court shall enforce an arbitral award.  Thus, arbitration awards are final and binding in the province of Ontario unless set aside or appealed according to the Act. 

C.      The Content of Arbitral Awards in the Family Law Context

There are some limits on the substance of arbitration agreements.  Theoretically, discriminatory provisions or clauses that incorporate for example a gender bias cannot be included as part of an arbitral agreement as this would likely be considered unconscionable under the principles of contract law.  As a practical matter, given the private nature of arbitration a court will not be aware of unfair provisions unless a review mechanism is utilized. 

It is certainly not illegal to contract out of certain statutory rights.  Indeed the alternative dispute resolution process encourages parties to design their own bargains that are suited to their individual needs.  There are however, certain base requirements.  In the family law context, agreements on property division and spousal support require full disclosure of finances from each party and a clear understanding of the consequences of the agreement.  A clear understanding of the nature and consequences of the agreement typically includes the ability to read and access to independent legal advice.  If these criteria are not present, a court can set the agreement aside if one party applies.  Where as a result of a marriage breakdown one party would require social assistance, the government would rather have that party’s former spouse pay spousal support as required than burden the state with this matter.[13]  Thus, this may be another instance when a court could set an agreement aside.  Moreover, the law does not enforce certain kinds of agreements, as contrary to public policy, such as that women remain chaste as a condition of separation.[14]  In addition, some rights, at least theoretically, cannot be waived in advance, such as the right to occupy the matrimonial home because this could impact on the rights of any children of the marriage.[15] 

1.            Division of Property

A married couple in Ontario has the right under the Family Law Act to an equal division of property upon the dissolution of the marriage. [16]   A married couple can agree to vary their statutory rights to the “net family property”[17] by virtue of a domestic contract.  A domestic contract may include a clause wherein the parties agree to arbitration in order to resolve their dispute.  Where an alternative means of dividing the parties’ property is resolved via arbitration, a court’s primary concern on appeal will be to examine whether the arbitration order failed to consider undisclosed significant assets, whether a party understood the nature or consequences of the arbitration agreement and any other matter in accordance with the law of contract.[18]  The safeguards of the law of contract would include considering such factors as whether the parties received independent legal advice and whether an agreement may be rendered invalid by reason of duress, unconscionability, misrepresentation or inequality in bargaining power.   

2.            Spousal Support

A court will consider similar factors in determining whether to set aside an arbitration order that dealt with spousal support between married or common law spouses or same-sex partners.[19]  If an agreement produces unconscionable results or will force family dependants to seek public assistance or if the terms of the arbitration agreement were being breached, a court may grant an order respecting spousal support that overrides the terms of the arbitral award.

3.            Custody, Access, Child Support and Other Matters Involving Children

Because the Arbitration Act provides no express limits to the content of arbitrations, parties can have matters such as custody, access, child support and other matters including the moral and religious education of their children arbitrated upon.  In fact, private agreements regarding custody and access are far more common than court mandated orders.  The Islamic Institute of Civil Justice has made statements to the effect that custody, access or child support matters will not be arbitrable.[20]  In fact, there is no legal impediment to doing so. 

As child support falls under the joint jurisdiction of the provinces and the federal government, an arbitrator will be unwise to stray far from the Child Support Guidelines.[21]  Section 56(1.1) of the FLA additionally provides that a court may disregard any provision of a domestic contract where the child support provision is unreasonable having regard to the child support guidelines.  The Ontario Superior Court of Justice has noted that though the Arbitration Act governs all types of civil disputes, its clauses are not framed particularly for family law and “still less are they drawn for custody and access matters.”[22]  Significantly, in Duguay v. Thompson-Duguay and Hercus v. Hercus, the Court explicitly held that it retains its inherent parens patriae jurisdiction to intervene in arbitral awards where necessary in the “best interests of the children.”[23]  The courts’ parens patriae jurisdiction refers traditionally to the role of the state as sovereign and guardian of persons under legal disability such as minors or the mentally unwell.[24]  However, because arbitration is a private order any award affecting children would only be alterable if brought to the attention of courts. 

D.          Court Intervention in Arbitral Agreements and Awards

There is no guarantee that arbitration will eliminate time-consuming and expensive litigation as the Arbitration Act provides a procedure by which a party can appeal and/or judicially review an arbitral award under certain circumstances. 

Arbitration does not necessarily lead to court intervention.  Parties may be satisfied with their arbitral awards or unable for a variety of reasons to bring the matter to court.  Arbitrations and the awards that result from them are by their nature private.  Unless the awards are challenged in court or need to be enforced, the process remains outside the public realm.  Particular arbitral tribunals may, but are not required to develop their own rules with respect to the keeping of records and/or transcripts.  For some participants this privacy is considered one of the attractions of the arbitration process, but for others it could result in isolation and the privatization of oppression.  As the Ministry of the Attorney General points out in a letter to the Canadian Council of Muslim Women:

Even plainly illegal activities may occur unless state authorities find out about them in some way.  Similarly, people may suffer from unjust arbitral awards, unless they bring them to the attention of the courts.[25]

The following sections will delineate the distinction between appeals and judicial review and outline the circumstances when such procedures may be available. 

1.            Appeal Process

Section 45 of the Arbitration Act outlines the details of the technical right of appeal available to a party.  Where an arbitration agreement makes no mention of appeals on questions of law, a party may appeal an award with the permission of the court.  Permission will only be granted where the court is satisfied that the matter is of sufficient importance to the parties and the determination of the question of law will significantly affect the rights of the parties.[26]  Arbitration agreements that specifically provide for rights of appeal on questions of law, questions of fact and questions of mixed fact and law[27] will be examined by the court and the court may require an arbitral tribunal to explain any matter.[28]  The remedies available to a court are to confirm, vary or set aside an arbitral award or remit the matter to the arbitral tribunal with the court’s opinion and/or directions.      

In an appeal, a court is entitled to afford a certain deference or regard to the arbitrator’s decision.  The appropriate degree of deference is called the standard of review.  In Robinson v. Robinson, a family law decision of the Ontario Superior Court of Justice, the court noted “that a court should not interfere with the arbitrator’s award unless it is satisfied that the arbitrator acted on the basis of a wrong principle, disregarded material evidence or misapprehended the evidence.”[29] 

Generally, courts will be strict in their review of pure questions of law and will replace the opinion of the arbitrator with their own. That is, an arbitrator’s decision will have to be “correct” if it is not to be overturned.  If a party to arbitration under the Islamic Institute of Civil Justice appealed a pure question of law to a court, it is most likely that the applicable law wherein a tribunal must be correct would be Canadian law and not, any version of the sharia opted into by the parties.  The underlying rationale for this standard is the principle of universality which requires appellate courts to ensure that the same legal rules are applied in similar situations.[30]  An alternative possibility is that the court will decide an appeal based on sharia according to the rules of inter-state arbitration.  Thus, if the parties agree to the substantive law of another jurisdiction, at the arbitration itself arguments will be made on both sides as to what the law of that jurisdiction actually is.  An appellate court would use this record to make its decision as to whether an error has been made in the law of that jurisdiction.  Where there is incomplete information in the record or where parties have not argued the law of the foreign jurisdiction, the court will assume that the foreign law is the same as Ontario’s law.  Importantly, under this situation parties to arbitration or their lawyers/other representatives will be required to argue the relevant “rules of law”. 

This could provide the strongest protection for vulnerable parties particularly where there is a concern that an award may permit something that would be contrary to Ontario’s family law regime as by default the assumption of the court will provide a type of statutory minimum standard.  However, an inevitable consequence of this rule will likely result in a battle between the more conservative and modernist Islamic scholars who will be used as experts at the arbitration to determine the nuances of sharia law. 

For parties concerned about unjust arbitral awards, the mechanism of appeal is the strongest safeguard against awards that are contrary to Canadian law.     

The findings of fact made by an arbitrator are owed the highest degree of deference.  They cannot be reversed unless the arbitrator has made a “palpable and overriding error.”  This standard recognizes that the trier of fact is better situated to make factual findings owing to her/his extensive exposure to the evidence, the advantage of hearing oral testimony including assessing the credibility of witnesses, and the familiarity with the case as a whole.[31]  It is very unlikely for a court to overturn an arbitrator on a finding of fact. 

Similarly, questions of mixed fact and law will only be overturned where the arbitrator has made a palpable and overriding error.  If however, the arbitrator has made some extricable error in principle with respect to the characterization of the law or its application, the error may amount to an error of law and is therefore subject to the highest standard of correctness.[32] 

Importantly, parties to arbitration can agree to waive their rights of appeal in the arbitration agreement.[33]  It is most likely that parties will contract out of their appeal rights particularly where the intent and purpose of seeking arbitration is to be subjected to an alternative legal framework to that provided by Canadian courts.  This severely limits the oversight of arbitral awards that courts can provide, however it does not constrain the courts entirely.   

2.            Process of Judicial Review

There are situations through judicial review when a court can set an arbitral award aside because the Arbitration Act provides that parties cannot agree either expressly or by implication to vary or exclude section 46 (setting aside an award).[34]  Judicial review, unlike the appeals process, tends to be rooted in matters of a procedural nature (See below “Setting Aside Arbitral Agreements and Awards”).  

The standard of review used by the courts in judicial review of an arbitral award is a complex test that incorporates a variety of different factors used to determine how much deference should be given to an arbitrator’s decision.[35]  Where a matter is judicially reviewed courts will usually respect and enforce the terms of an award unless the decision is unreasonable or patently unreasonable.  As noted in Duguay and Hercus, “[t]he legislature has given the courts clear instructions to exercise the highest deference to arbitration awards and arbitration disputes generally.”[36]  In other words, the courts’ general tendency will be to respect the decisions of arbitrators. 

Under principles of administrative law, one factor that courts must consider in determining the level of deference owed to an arbitrator’s decision is the specialized expertise that a tribunal may have as compared to the court.  Where an arbitrator can claim highly specialized expertise, for example in a situation where two parties have agreed to have their dispute settled according to certain religious principles, theoretically, courts will militate in favour of a high degree of deference,[37] that is, favour upholding the arbitrator’s decision.[38]  It is likely that the expertise of a tribunal will be the determinative factor.  There are however, three other components to the functional and pragmatic approach to judicial review which may vary the degree of deference.[39]    

3.            Setting Aside Arbitral Agreements and Awards

Most safeguards in the Arbitration Act refer to procedural guarantees.  However, there is some case law to suggest that courts will interpret certain sections of the Act to include certain guarantees as to the substance of the arbitral award.  Subsection 19(1) of the Act guarantees that parties shall be treated equally and fairly.  Subsection 19(2) ensures that each party is given an opportunity to present a case and respond to the other parties’ cases.  In Hercus, Templeton J. held that there was nothing in the Arbitration Act that limits the concept of “fairness” in s. 19(1) to mere procedural fairness.  Rather, she felt that s. 19(2) of the Act more specifically addresses the concept of procedural fairness.[40]  This is an encouraging finding that suggests courts may be more willing in the family law context to interpret arbitral awards substantively based on fairness. 

Generally, s. 6 of the Act permits a court to intervene in arbitral matters: (1) to assist in the conduct of arbitrations; (2) to ensure that arbitrations are conducted in accordance with arbitration agreements; (3) to prevent unequal or unfair treatment of parties to arbitration agreements; and (4) to enforce awards.   

Subsection 20(1) of the Act states that the arbitral tribunal may determine the procedure to be followed in the arbitration subject to some guidelines provided by the Act.

According to ss. 46(1) of the Act, a court may set aside an arbitral award on a party’s application in certain circumstances.  The following section outlines the specific clauses of ss. 46(1) and provides an example to illustrate their meaning.  An award will be set aside where:

1.                  A party entered into the arbitration agreement while under a legal incapacity. 

The court would not enforce for example, an agreement entered into while a person was impaired or where a minor entered into an agreement. 

2.                  The arbitration agreement is invalid or has ceased to exist. 

An arbitral agreement may be invalid if the time frame set out in the agreement has expired or if a particular procedural guarantee has not been met.  This section  may also be used to set aside awards that are contrary to public policy, for example requiring unreasonable conditions such as chastity or where the contract is unconscionable.

3.                  The award deals with a dispute that the arbitration agreement does not cover or contains a decision on a matter that is beyond the scope of the agreement. 

For example, if the subject matter of an arbitration agreement purports to deal only with the division of property upon the breakdown of a marriage, an award that refers to spousal support would be considered outside the scope of the agreement.  Subsection 46(3) of the Act, however, provides a restriction wherein a court shall not set aside an award where a party has agreed to the inclusion of the matter, waived the right to object to its inclusion or agreed the tribunal has power to decide what disputes are referred to it.  Thus, a clause in an agreement giving the tribunal power to decide what matters are under its jurisdiction or a waiver of rights clause could prove extremely disadvantageous in later attempting to have a court set an award aside.   

4.                  The composition of the tribunal was not in accordance with the arbitration agreement or, if the agreement did not deal with that matter, was not in accordance with the Act. 

This is a procedural guarantee that ensures that the manner in which the arbitration is conducted is consistent with the intent of the parties or the Act.

5.                  The subject-matter of the dispute is not capable of being the subject of arbitration under Ontario law. 

A court would set aside an agreement that for example, purports to bind a third party or a falls outside the jurisdiction of civil law.

The following clauses provide circumstances that permit a court to intervene when arbitration is not carried out in a just manner: 

6.                  The applicant was not treated equally or fairly, was not given an opportunity to present a case or to respond to another party’s case, or was not given proper notice of the arbitration or of the appointment of the arbitrator. 

7.                  The procedures followed in the arbitration did not comply with this Act.

8.                  An arbitrator has committed a corrupt or fraudulent act or there is reasonable apprehension of bias.

9.                  The award was obtained by fraud. 

4.            Declaration of Invalidity by a Non-Party

Interestingly, ss. 48(1) of the Act, provides that at any stage of an arbitration a party who has not participated in the arbitration can apply to the court for a declaration that the arbitration is invalid because:

(a)   a party entered into the arbitration agreement while under a legal incapacity;

(b)   the arbitration agreement is invalid or has ceased to exist;

(c)   the subject-matter of the dispute is not capable of being the subject of arbitration under Ontario law; or

(d)   the arbitration agreement does not apply to the dispute.

This section may provide an important protection for vulnerable parties who do not have the emotional or financial resources to pursue a matter in court.  Presumably, a sympathetic family member or an organization that knows the details of the party’s situation could apply to the court for a declaration of invalidity where for example, they suspect that a party has entered an agreement without true consent.  By contrast, such a provision could also be used to undermine the legitimate position of party who has voluntarily agreed to arbitration.

5.            Unusual Remedies

Subsection 50(7) of the Act provides that if the arbitral award grants a remedy that the court does not have jurisdiction to grant the court may grant a different remedy or remit the matter to the arbitral tribunal with the court’s opinion to award a different remedy.  Thus, where a matter reaches a court some protection exists as to the type of remedy that will be awarded. 

E.          Judicial Interpretation of Private Agreements

Critical to understanding the impact arbitration will have on parties is an awareness of the approach courts are taking to the increasing privatization of certain areas of the law.  The Supreme Court of Canada has emphasized in several family law cases, its interest in upholding parties’ private bargains:

…[I]n a framework within which private parties are permitted to take personal responsibility for their financial well-being upon the dissolution of marriage, courts should be reluctant to second-guess the arrangements on which they reasonably expected to rely.  Individuals may choose to structure their affairs in a number of different ways, and it is their prerogative to do so.[41]

In Miglin v. Miglin, a case involving the interpretation of a separation agreement, the Supreme Court of Canada held that trial judges must balance Parliament’s objective of equitable sharing of the consequences of marriage and its breakdown under the Divorce Act[42] with the parties’ freedom to arrange their affairs as they see fit. 

Accordingly, a court should be loath to interfere with a pre-existing agreement unless it is convinced that the agreement does not comply substantially with the overall objectives of the Divorce Act.[43] 

This decision suggests that there is some notion of a core public order that private parties are obliged to respect in family law.  Indeed the progression of family law cases in Canada since Murdoch v. Murdoch[44] indicates that family law matters have become a matter of public law and policy.[45] 

While the Supreme Court’s interpretation in Miglin provides some protection against grossly unfair agreements, it has noted recently in Hartshorne v. Hartshorne that deference will be given to agreements that deviate from the statutory matrimonial property regime particularly where negotiated with independent legal advice regardless of whether this advice was heeded.[46]  In this case, a couple, both of whom were lawyers, entered into a marriage agreement on the day of their wedding.  Both parties had independent legal advice.  The wife’s lawyer wrote an opinion letter to her indicating that the draft marriage agreement was “grossly unfair” and that she would be entitled to much more under the statutory regime.[47]  For a variety of reasons, she signed the agreement anyway.  Though the minority in this decision notes that “simply ‘signing’ the agreement…does not cure its substantive unfairness”,[48] the majority states, “[i]f the respondent truly believed that the Agreement was unacceptable at that time, she should not have signed it.”[49]

Hartshorne, a case originating in British Columbia, is particularly worrisome because the majority of the Supreme Court did not take advantage of the relatively low threshold for judicial intervention in the variation of domestic contracts that is available to judges.  Under the B.C. Family Relations Act, a court may reapportion assets upon a finding that to divide the property as provided for in a domestic contract would be “unfair”.[50]  By contrast in Ontario, the threshold for judicial oversight of domestic contracts is much higher.  Judges are only permitted to set aside a contract in specified circumstances such as, where a party fails to disclose significant assets or liabilities, where a party does not understand the nature or consequences of the contract, or otherwise, in accordance with the law of contract.[51]  The fairly conservative judicial interpretation of “fairness” in the B.C. context suggests that judges will likely interpret a Hartshorne-type situation in Ontario similarly if not with less interventionism.  

1.         The Interpretation of Voluntariness and Free Will 

Also of note in Hartshorne are certain facts surrounding the voluntariness of entering into a domestic contract.  As noted earlier, the husband and wife entered into a marriage agreement on the day of their wedding and with independent legal advice.  Although the testimony of the husband and wife varies, at the time of the signing of the agreement, it was agreed that the wife was upset and reluctant to sign the agreement.[52]  The trial judge noted that in the defendant’s mind:

[S]he felt she had no choice but to sign an agreement.  The wedding date was set, she had a 20 month old child, she was planning another child (and in fact was pregnant but did not know she was pregnant at the time), and she had committed to a life with the plaintiff.  It was her evidence that the plaintiff was dominating and controlling, and that she knew that if she did not sign the proposed agreement, it would be a complete bar to a good relationship…Sometime after the wedding, but before the parties and their guests went out for dinner, she recalls that she was in the kitchen with one of her friends, Leslie Walton.  The plaintiff was after her to sign the marriage agreement before they went out for dinner, and she ended up signing the agreement while Leslie Walton was present.  On her evidence, she was crying and very upset…Ms. Walton, in her evidence…recalls the plaintiff and the defendant coming in, and that they were discussing something.  The defendant was clearly upset and was crying.  The plaintiff gave her a pen, and the defendant looked up at Ms. Walton and said words to the effect that “You’re my witness, I am signing this under duress”.  Ms. Walton never saw the document, but was simply aware that the defendant was signing something.[53] 

The trial judge held that “notwithstanding the defendant’s emotional upset at the time” the evidence fell short of establishing a basis for finding that the agreement was unconscionable, or that it was entered into under duress, coercion or undue influence.[54]  The Court of Appeal and the Supreme Court of Canada upheld the trial judge’s finding on this matter.

As is obvious from the above decision, the courts have set a high threshold for the test of duress or coercion.  Though the common law recognizes a defence of duress, its scope has remained narrowly defined with relief chiefly limited to cases of physical threat.[55]   There is a general protection afforded in the law where undue advantage is taken by virtue of inequality of bargaining power.  Inequality in bargaining power may result from any of various aspects of the parties’ circumstances such as “abuse or intimidation or…learning or other disability…anxiety or stress or a nervous breakdown or indulgence in drugs or alcohol.”[56]  Other factors held to indicate the necessary inequality include old age, emotional distress, alcoholism and lack of business experience.[57]  It appears that any situation that results in a weaker party’s being “overmatched and overreached” will qualify for relief if the stronger party secures immoderate gain.[58] 

There is a well established line of cases providing relief from agreements on the basis of undue influence, which describes an advantage accruing from “a longstanding relationship of control and dominance.”[59]  Certain relationships such as solicitor-client and doctor-patient, give rise to a presumption of undue influence.  The relationship of husband-wife is not included in that class of special relationships.  However, where an inequality of bargaining power can be established, for example if the husband has subjected the wife to abuse, a court will set aside an agreement based on undue influence and unconscionability.[60] 

Syed Mumtaz Ali, current head of the Islamic Institute of Civil Justice, explained the law of minorities as sharia law sets it down.  Muslims in non-Muslim countries are expected to follow the sharia to the extent that it is practical.[61]  According to Ali, until recent changes to the Arbitration Act, Canadian Muslims have been excused from applying the sharia in their legal disputes.  Now that arbitration agreements are considered final and binding, “the concession given by Shariah is no longer available to us because the impracticality has been removed.  In settling civil disputes, there is no choice indeed but to have an arbitration board [emphasis added].”[62]  It is certainly not implausible to imagine a situation where a devout Muslim woman would be susceptible to pressure to consent to arbitration by sharia law because of a pronouncement such as Syed Mumtaz Ali’s. 

Indeed very similarly, Rabbi Reuven Tradburks, secretary to the Beis Din[63] of Toronto’s Va’ad HaRabbonim notes:  “In this city, we actually push people a little to come [to arbitration by Jewish law] because using the Beis Din is a mitzvah, a commandment from God, an obligation.”[64]  According to Homa Arjomand, head of the new ‘International Campaign Against Shari’a Court in Canada’, most at risk are young immigrants from the Middle East, North Africa or certain South Asian countries, where sharia law is practised “and has been used to subjugate them their entire lives.  They know nothing different.”[65]  Whether religious or moral coercion of this type by an Imam, spouse or others will be deemed to affect the equality of bargaining power of the parties will depend on the facts of each case. 

F.          Judicial Interpretation of Islamic Agreements

It is possible that judicial interpretation of arbitral awards that invoke Islamic law principles may stray from the family law precedents set wherein parties’ bargains are given much weight.  Indeed, the precise reading that courts will assume when reviewing awards based on religious principles remains uncertain because of conflicting case law.  

In Kaddoura v. Hammoud,[66] a decision of the Ontario Court of Justice, the court refused to require payment of the mahr,[67] a Muslim marriage custom, because the contract had a religious purpose and accordingly, was not an obligation that should be adjudicated in the civil courts.  In this case, an amount of $30,000 was due to the wife under an Islamic marriage contract.  The contract conformed to s. 52(1) of Ontario’s Family Law Act in that the provision was not vague nor was the agreement signed under circumstances suggestive of inequality or duress.  Despite the obligatory nature of the mahr under Islamic principles however, the court held that the agreement was unenforceable by Canadian courts. 

Pascale Fournier has argued that judges frequently perceive Muslim cultural differences as too drastic to fit within existing legal categories.[68]  In Kaddoura, the judge’s reasons reveal that it was the religious dimension of the mahr that rendered the agreement unenforceable.  The judge notes:

While not, perhaps, an ideal comparison, I cannot help but think that the obligation of the Mahr is as unsuitable for adjudication in the civil courts as is an obligation in a Christian religious marriage, such as to love, honour and cherish, or to remain faithful, or to maintain the marriage in sickness or other adversity so long as both parties live, or to raise children according to specified religious doctrine.  Many such promises go well beyond the basic legal commitment to marriage required by our civil law, and are essentially matters of chosen religion and morality.  They are derived from and are dependent upon doctrine and faith.  They bind the conscience as a matter of religious principle but not necessarily as a matter of enforceable civil law.[69]

As Fournier notes, in erroneously importing a Christian, majoritarian comparison with the Islamic institution of the mahr, the judge overlooks that whereas Christian vows constitute moral obligations that are indefinite insofar at they can only bind the conscience, the mahr is a clear financial obligation.[70]  “The court’s message is that a valid agreement between two Muslim parties is unenforceable, not for vagueness like the Christian examples deemed analogous, but because of the agreement’s religious purpose.”[71]

The “apparent cultural anxiety”[72] in Ontario associated with entering the “‘religious thicket’, a place that the courts cannot safely and should not go”[73] is contrasted with cases of near identical facts in British Columbia where the courts’ interpretation of the enforceability of the mahr has been very different.  In N.M.M. v. N.S.M.,[74] a decision of the British Columbia Supreme Court, it was held that the mahr was enforceable as a valid marriage agreement per s. 48 of the Family Relations Act.[75]  The court’s reasons were a reiteration of two previous cases in B.C., Nathoo v. Nathoo[76] and Amlani v. Hirani,[77] wherein the enforceability of the mahr was also recognized.  Dorgan J. in his concluding comments in Nathoo held:

Our law continues to evolve in a manner which acknowledges cultural diversity.  Attempts are made to be respectful of traditions which define various groups who live in a multi-cultural community.  Nothing in the evidence before me satisfies me that it would be unfair to uphold provisions of an agreement entered into by these parties in contemplation of their marriage, which agreement specifically provides that it does not oust the provisions of the applicable law.[78] 

Kaddoura suggests that Ontario’s judges will be reluctant to intervene in internal matters involving religious principles[79] whereas N.M.M., Amlani and Nathoo indicate that B.C.’s judges may give more deference to religious principles where an agreement is voluntarily entered into by consenting parties.  An appellate court’s interpretation of such matters is required to clarify the legal position in Canada. 

A notable distinction between the mahr cases and arbitral awards that use sharia law is that the former may be deemed an unrecognizable category of Canadian family law while the latter is not necessarily.  The mahr can be relegated to a place of pure religion that need not be decided by “our judicial system.”  That is, the court may decide the mahr is a dispute involving Islamic law in which they have no expertise and thus will not intervene.  Alternatively, the court may find, as in B.C., that the mahr issue ought to be considered a matter of family or contract law, an area in which the courts have comparable expertise to that of any arbitrator and is therefore justiciable.  Matters that may be considered in arbitration such as division of family property, spousal support and child support which are recognizable under a Western legal framework are not as easily relegated to the un-justiciable even where the resolution of such issues may be less recognizable, that is, via sharia law. 

However, in Brewer v. Incorporated Synod of the Diocese of Ottawa of the Anglican Church of Canada,[80] the plaintiff Anglican rector whose relationship with the Anglican Church was governed by the cannons and rules of the Church, began a recognizable action for damages for wrongful dismissal.  It was held that in adjudicating Church disputes, the court would look not to the merits of the decision, but rather at adherence to the rules, procedural fairness, the absence of mala fides (bad faith) and natural justice.[81] 

Given the conflicting case law in Canada on the mahr and the lack of specific case law on arbitrations dealing with Islamic religious principles, it is difficult to predict with certainty how much deference, if any, courts will give to religious arbitral awards that parties voluntarily agree to and whether courts will tend to prefer outcomes that reflect the statutory and judicial standards of family law developed in Canada.[82] 

1.         Legal Representation

The Supreme Court of Canada has noted that independent legal advice at the time of negotiation is an important means of ensuring an informed decision to enter an agreement.[83]  Obtaining legal advice will be essential for parties to understand what they are entitled to under Canadian law versus the legal framework they choose under the Arbitration Act. 

At certain Beis Din, lawyers have the indispensable role of reviewing any contracts before their clients sign them, unless the client waives that right.[84]  Typically, lawyers are not welcome at the Beis Din, but in the event that they are present their role is not as advocate for their clients.[85]  Rather, they are to assist rabbis in marshalling the facts in order to give them an understanding of secular law, and to assist them in seeing how secular law can affect any decisions of the Beis Din.[86]

Canadian courts have stressed the importance of independent legal advice in order for parties to be of equivalent bargaining power.[87]  Ironically, it may be that a failure to get independent legal advice may be the best protection a vulnerable party will have in getting a court to review and overturn an unfair arbitration agreement.  Where, however, parties sign an agreement to abide by a ruling and consent is found to be voluntary, the courts will likely impute knowledge of the system of laws one is submitting to.  It is unlikely an argument that one didn’t realize or understand the impact of a particular set of rules would be successful particularly, where an attempt to contest the ruling is based on a dislike of the outcome. 

Arbitrations can be informal processes where disputants may feel comfortable representing themselves or having a non-legal advocate or a para-legal represent them.  Arbitrations, however, can also duplicate the formality and adversarial atmosphere of a court wherein legal representation may be more appropriate.[88]  Parties who choose the arbitration route are not eligible to receive any legal representation though Legal Aid Ontario.[89]  Moreover, it is unlikely that a lawyer would agree to represent a client at a tribunal that employs religious law because currently, the standard liability insurance provided by the Lawyers’ Professional Indemnity Company, the insurance carrier for the Law Society of Upper Canada (members of the Ontario bar), does not cover lawyers acting in any area except Ontario/Canadian law.[90]  When discussing arbitration before the Beis Din, a Toronto lawyer notes: 

When it comes to Jewish law, Canadian lawyers really don’t know anything.  But even those who do know some halacha…[it] would be negligent to go before the Beis Din and argue Jewish law, since they are not covered for it in their insurance policy.  If they made a mistake with financial repercussions, they could be personally liable.[91]

Thus, despite its recognized utility, in practice, independent legal advice may be of little use to clients who submit to arbitration using an alternative legal framework; this is so because most Ontario-trained lawyers are likely to be unaware of the repercussions and consequences of a system of law that they are not familiar with.   Lawyers may only be of assistance to clients to the extent of explaining their rights in the Canadian legal context.

G.          Multiple Interpretations of Sharia Law

The scope of this paper does not allow an in depth examination into the intricacies or various schools of thought of sharia law.[92]  Indeed it is impossible to know what version of sharia will be used for civil matters in Ontario since the Arbitration Act allows parties to agree to any legal framework they desire.  Parties may agree to very specific interpretations of the sharia or they may agree to submit to the sharia generally, putting faith in the arbitrator’s expertise.  

What is known about sharia is that it is a complex legal framework that is meant to be a complete system for regulating every aspect of human life:

The rules, obligations, injunctions and prohibitions laid down by or derived from the Qur’an and the Sunnah produce a complete picture of the Muslim community, from which no part can be removed without the rest being damaged.[93] 

Sharia law does not translate appropriately or fairly when utilized in a patchwork fashion.  Indeed Syed Soharwardy, a founding member of the Islamic Institute of Civil Justice, has written: “Sharia cannot be customized for specific countries.  These universal, divine laws are for all people of all countries for all times.”[94]  Yet, by virtue of living in Canada, sharia law can only be applied in a limited way to certain civil matters.  Syed Mumtaz Ali’s contradictory claim to both his own comments and Soharwardy’s that a “Canadianized sharia” will be utilized should be received with concern.  Ali notes:  “It will be a watered-down sharia, not 100 per cent sharia.  Only those provisions that agree with Canadian laws will be used.”[95]  If this is the case, some Canadian Muslims may feel insecure subjecting themselves to distortions of Islamic principles where such principles are understood as immutable.  On the other hand, the fact that sharia is subject to interpretation may be an asset in addressing women’s concerns. 

1.            Reservations to CEDAW: Example of the Diverse Application of Sharia Internationally[96]

The application of sharia law internationally reveals that Islamic countries are not homogenous and have a great deal of diversity in culture and even faith.  Exploring the tenets and historical foundations of “cultural Islam”[97] leads one to the understanding that much discretion lies in the interpretation of Islamic law and its correlation to international human rights standards.  Perhaps the most telling example of this are the reservations made by Muslim countries in the name of Islam to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).  The Convention is an international legal instrument or treaty that requires respect for and observance of the human rights of women.  It was adopted in 1979 by the United Nations General Assembly and came into force in September of 1981.  Countries that ratify CEDAW have the option of invoking reservations to certain provisions of the treaty.  Reservations serve to exclude or modify the legal effect of the reserved provision(s) in their application to that country.[98]  For example, a country’s reservation might read:  The Government of the Republic of X will comply with the provisions of the Convention, except those which the Government may consider contradictory to the principles of the Islamic Sharia, upon which the laws and traditions of X are founded.

Several Muslim countries have invoked reservations to CEDAW specifically citing sharia law as the motivating force behind these reservations. 

The most reserved articles relate to rights of women in the area of family law, which has always been jealously guarded by Muslim countries as being regulated by Islamic law, whereas other fields of life including the running of governments and financial institutions are not so guarded against ‘infiltration’ of ‘secular’ laws.[99] 

Notably however, perceptions of what constitute Islamic norms and what falls outside their ambit vary extensively, particularly with respect to women’s rights.  Wide ranges of factors including political, socio-economic as well as religious considerations motivate reservations entered by Muslim countries.  However, not every Muslim country has entered a reservation in the name of Islam.[100]  In fact, a group of Central Asian Republics and some other Muslim countries have ratified the CEDAW without any reservations whatsoever, providing further evidence for the disparate “Islamic” positions adopted by varying jurisdictions.[101]  “The situation is further complicated where no uniform position vis-à-vis Islamic law is adopted by Muslim States since each jurisdiction presents its own specific blend of an ‘operative’ and ‘cultural’ Islam, distinct from other jurisdictions.”[102]

The reason for the lack of consistency in invoking sharia is due to the absence of a unified interpretation of religious law.[103]  Increasingly, Muslim feminists and Islamic reformers are asserting that the Qur’an and the example of the Prophet provide much support for the idea of expanded rights for women.[104]  A growing movement is contesting the model of gender rights and duties found in traditional Islamic jurisprudence and discourse and promoting instead interpretations and understandings of Islamic law and justice rooted in notions of gender equality.[105]  Contemporary Muslims such as Abdullahi An-Na’im and Fatima Mernissi have reexamined the sources and concluded that Islam calls for equal rights for men and women.  In contrast, opponents of feminism turn to the juristic tradition and the associated cultural norms, which reflect the values of patriarchal societies.  The differences in approaches to understanding Islam have been compounded by the absence of any generally recognized central authority for resolving disputed points of sharia doctrine. 

Faisal Kutty, a Toronto-based lawyer, states the fact that there is virtually no formal certification process to designate someone as being qualified to interpret Islamic law compounds the problem: 

As it stands today, anyone can get away with making rulings so long as he has the appearance of piety and a group of followers. There are numerous institutions across the country [Canada] churning out graduates as alims (scholars), faqihs (jurists) or muftis (juris-consults) without fully imparting the subtleties of Islamic jurisprudence. Many, unfortunately, are more influenced by cultural world views and clearly take a male-centered approach.[106]