A Student's Notes and Comments on
Marion Boyd's Dec 20/04 Report:
Dispute Resolution in Family Law:
Protecting Choice, Promoting Inclusion

Caveat

These are notes taken (and comments occasionally added) by a student (albeit an aging one) who just recently (Nov-Dec/04) took a brief Course on 'Understanding Islam'. The Sharia controversy (occurring, by coincidence, at the same time) is obviously a closely related issue. I am not a scholar of this complex subject. But if you find these notes of use, feel free to browse.

Introduction

See comments on the Executive Summary of the Boyd Report below. I have not yet read the full report. As you will see, in the "Reactions" below, Muslim groups who have been campaigning against Sharia law in Ontario are not happy with the Boyd Report while Muslim groups who have been advocating Sharia law are delighted. I haven't studied the issues in sufficient detail to have a reliable opinion, but my gut feel is that when fundamentalist elements rejoice then the treatment of women may be in some jeopardy. The safeguards recommended by Boyd consist mainly of documents to be signed, all of which, I would think, a Muslim woman could be coerced into signing on threat of ostrasism from her community.

Contents

• Executive Summary
• The Recommendations
• Reactions of Others

Executive Summary

• Marion Boyd (a former attorney general in the Rae government) was asked on Jun 25/04 by Attorney General Michael Bryant and Minister for Women's Issues Sandra Pupatello to conduct a review of the use of arbitration in family and inheritances and examine the impact that the use of arbitration has on vulnerable people, including women
• a result of public concern expressed in the media about the use of Sharia law in arbitrations and some "significant confusion" about a plan by the Islamic Institute of Civil Justice to establish a "Sharia Court" in Ontario
• "the report concludes that tolerance and accommodation of minority groups who seek to engage in alternative dispute resolution must be balanced against a firm commitment to individual autonomy. It is important to seek solutions that respect not only the rights of minority groups within Ontario, but also help individuals within that minority exercise their individual rights with ease" [RJA comment: Hear! hear!]
• says "religious arbitration can allow the people in dispute to select a shared set of values and rules that may be different than Ontario law" [RJA comment: providing that there is no coercion]
• says "Alternative dispute resolution may provide a venue for continued abuse after the breakdown of a relationship, and therefore safeguards must be in place."
• points out an international tradition in personal law -- "Personal law has been used throughout history to allow groups to maintain their cultural identity, by allowing them to continue to control their definitions of family and community. In parts of Europe, the practice of applying the personal law of an individual's country of origin continues until today. For example, the citizenship laws of France and Germany mean that people may not be subject to the laws of their country of residence, but rather their country of origin."
• but says must be safeguards -- "If the state allows cultural groups complete freedom to define family and inheritance matters those groups may trample on the rights of individuals within the group and may discriminate in ways that are unacceptable to Canadian society. The Review concluded that cultural groups should not be permitted to stop people from having access to laws and processes that are available to all." [RJA comment: Hear! hear! Protection is absolutely necessary. As I quote and comment in my discussion elsewhere on the Islamic Institute for Civil Justice the IICJ leader, Syed Mumtaz Ali, says "if you choose [secular Canadian family law] then you cannot claim that you believe in Islam as a religion" -- which seems to me to be coercion -- i.e., yes, it's voluntary but you'll burn in hell if you don't use it]. So now, the question is: are Marion Boyd's recommendations sufficient to provide this protection? -- clearly some groups think not (see "Reactions" below]

The Recommendations

• arbitration should continue to be an alternative dispute resolution option available in family and inheritance law cases -- using the Arbitration Act -- but subject to the safeguards recommended in this Review [RJA comment: well that depends on how good the recommended safeguards are in the face of societal coercion]
• a number of specific changes to the Family Law Act are then recommended but, on quick reading, they seem to involve simply the necessity of written contracts, written waivers of independent legal advice, etc. etc. (in certain cases confirmed in writing at the time of the dispute and before arbitration commences) and the receipt of a certain formal "statement of principles of faith-based arbitration" [RJA question: but might not a Muslim woman be coerced into signing all these documents on threat of being ostracized from her community?]
• there is a provision that "mediators and arbitrators in family law and inheritances cases [must] certify that they have screened the parties separately for domestic violence, that they have reviewed the certificates of Independent Legal Advice or the waiver ... and are satisfied that each party is entering into the arbitration voluntarily" [RJA question: but if the arbitrator is an IICJ employee of Syed Mumtaz Ali's views, how independent will this certification process be?]
• arbitration decisions will have to include written reasons [RJA comment: that, at least, is an improvement from what I understand the present system is under Sharia law]
• there are many more useful and helpful recommendations [RJA comment: but I'm not immediately clear how these avoid the element of coercion and the fundamentalist viewpoints of the IICJ]

Reactions of Others

• the Canadian Council of Muslim Women sent a Dec 20/04 letter to Premier McGuinty expressing extreme disappointment with the Boyd Report -- they felt that their views (which I have summarized elsewhere) "have been completely ignored" -- they conclude that "We find it unconscionable that in a liberal democracy like Canada we are allowing the application of complex and disputed religious laws that discriminate against women"
• Homa Arjomand who has been leading a petition against sharia law in Ontario (to whom I have referred elsewhere) has commented on her website that the "Boyd Report Pushes Women's Rights in Canada Back 1400 Years" -- she comments: "I was surprised that Ms. Boyd didn't find any evidence of women suffering from discrimination during faith-based arbitrations", said Ms. Arjomand. "we submitted several reports of abuse and gave testimonies in person to Ms. Boyd".
• needless to say the Canadian Islamic Congress (on whom I commented elsewhere and who have been advocates of Sharia law in Ontario) have praised the Boyd Report (see their comments at this website) -- they say that Boyd has argued that "concerns over whether Shari'a in Canada would be implemented in oppressive and arbitrary ways, as has been reported in some other countries, are unfounded." [RJA comment: though clearly the CCMW and Homa Arhomand are still concerned -- though the CIC seems to dismiss objectors as 'racist']
• the Islamic Institute for Civil Justice (discussed earlier) do not seem to have a specifically post-Boyd-Report comment on their website, though presumably they will be in favour of it -- their website does contain a link to a Toronto Star article which quotes Syed Mumtaz Ali of the IICJ as saysing "he was 'delighted' with Boyd's findings and added that many of the 46 recommendations for strengthening the Arbitration Act came from him."
• the Canadian Press on Dec 21/04 wrote: "Ontario Muslims should have the same rights as Roman Catholics and Jews in the province to seek arbitration based on religious law for family disputes and inheritance cases, concludes a report by former attorney-general Marion Boyd. 'The Arbitration Act should continue to allow disputes to be arbitrated using religious law,' Ms. Boyd recommends in her report to the Ontario government." -- the same article quotes Len Rudner of the Canadian Jewish Congress saying that "the group felt Boyd struck a fair balance between the needs of the individual and those of the community. 'She appears to have done a good job of that,' he said.: [RJA comment: again, clearly the CCMW and Noma Arhomand would not agree]