CCMW - Activities

Mr. Siddiqui misses the fact that the issue raised by many opponents of faith-based arbitration was about women's rights and not religious rights.

We are not so naïve as to dispute that fear-mongering and Islamophobia have motivated some who opposed faith-based arbitration. For this reason the Canadian Council of Muslim Women (CCMW) has consistently stated that we opposed to all forms of faith-based arbitration and NOT Sharia. We have been and remain against the narrow interpretations of Muslim family law that rule and at times oppress women, men and children in other countries. We will not tolerate the import of those practices to Canada.

We applaud Mr. McGuinty's decision of disallowing faith-based arbitration - as a Muslim woman's organization, we are tired of the rhetoric that this would be an opportunity for the Muslim community to progress and change their practices and traditions to be in line with the Charter. Yes, these changes are necessary in the Muslim community, but the test case does not need to be done on the backs of women. We are contacted all too often by Canadian Muslim women in crisis who are unaware of their rights, have turned to the Imams or other community leaders and are told to remain in their emotionally and/or physically abusive situations - a practice that perhaps occurs in other faith communities as well.

Most Muslim communities have yet to prove their commitment to the full equality of women's rights as articulated in the Charter. For example, few women sit on the boards of their local mosques or are allowed to be community leaders. We believe the same distrust for women’s rights exists for other faith-based communities. This is exemplified by the very limited number of cases that were arbitrated by these communities in relation to family matters. Until religious groups prove their commitment to women's rights - the rights of religious groups cannot supercede that of women.

Razia Jaffer

President
Canadian Council of Muslim Women

173 Rocky Ridge Cove NW
Calgary, Alberta
T3G 4L1

Phone: (403) 998-6768

The Editor
The Globe and Mail

Sheema Khan is factually incorrect to say that the Sharia debate has not been given a proper hearing. If by Sharia she means the Muslim Family/Personal Law, then there has been nothing but immense debate in the past year.

Marion Boyd broadly consulted hundreds of Canadians, including religious communities, women’s groups, immigrant organizations, the legal community, and other grass roots organizations. Innumerable letters have been written to MPPs and Premier McGuinty. And as someone who writes for the Globe, she is surely aware of the firestorm of debate in print and broadcast media in Ontario, Canada and internationally.

For the record, we would also like to correct the falsehood that Ismaili Muslims use religious laws for settling family disputes - they do not. The Ismaili Conciliation and Arbitration Board uses Canadian family law only.

She is correct that Islamophobia may have motivated many opponents of Muslim Family Law. Other’s were guided by historically well-founded concerns about the ability of Muslim groups, and all religious groups, to respect women’s rights. Given their track record, the onus is on religious communities to prove they will respect women’s rights. Until they do so - the rights of religious groups cannot supercede women's equality rights.

This is why the Canadian Council of Muslim Women (CCMW) has continuously advocated for the removal of all forms of faith-based arbitration for family matters under the Family Law Act of Ontario.

Mr. McGuinty weighed the options, possibly for too long, but nonetheless he made a decision that ensures equality for all Canadians.

Razia Jaffer

President
Canadian Council of Muslim Women

173 Rocky Ridge Cove NW
Calgary AB T3G 4L1

Phone: (403) 998-6768

To: Mr Doug Firby
Calgary Herald December 28, 2005

From: Canadian Council of Muslim Women.

In Ontario, the Arbitration Act allows for the use of religious laws to settle family matters in private, out of court, by legally binding arbitration. Though this is happening in Ontario, there is a possibility that this can happen in other provinces as well.

But is it not reasonable to expect that the same family laws should apply to all Canadians, including Muslim women? Dont citizenship rights apply equally to all of us? Why should religion be a factor in deciding which laws apply to which group? We know that there are issues with the justice system, such as backlog of cases, so why not spend resources to improve the common justice system rather than private arbitration? Why agree to an alternative system of justice based on an individuals religion?

These are the questions the Canadian Council of Muslim Women, an organization of believing women, had asked the government of Ontario, when we discovered that the Arbitration Act allows any religious laws to be used. We are in a difficult position as we do not want this single but extremely important issue to cause division amongst Muslims, or animosity against Muslims, but the laws of Ontario are doing just that.

CCMW makes it clear that we cannot be against our own faith, but cannot remain silent if we see that injustice may be done to women either by Canadian or by Muslim law.

Our concern with the use of Sharia/Muslim family law is that it is not a cohesive, agreed upon system of jurisprudence. It is applied very differently in the different countries which use the laws. The most concerning aspect is that none of the applications have womens equality rights as one the foundational principles. The Sharia/Muslim family law is based on a patriarchal model and we think that this model has had its uses but is no longer valid.

Because of the public outcry, Ontario Premier Dalton McGuinty appointed Ms Marion Boyd to review the Arbitration Act and its effect on vulnerable people. Ms Boyd is a former NDP Attorney General under whose government the current Arbitration Act was enacted. Ms Boyds Review Report has now been released and we are disheartened by her recommendations to the Premier.

Ms Boyd advocates for religious rights in her Report rather than for womens equality rights. In the body of the Report, she does discuss the negative impact the application of religious laws can have on women, yet any concern for womens welfare is absent in her recommendations. Very sadly for any religious woman, she sees no harm in the private legally binding arbitrations using any religious laws for family matters.

The Report contains recommendations for some safeguards, but still within the parameters of a private arbitration system.

For example, one of the safeguards is that the woman should have independent legal advice, but as the cost has to be borne by the woman herself, she can waive this right. Another recommendation is that there be a statement of faith- based principles for arbitration. This totally ignores the demonstrated fact that there is no agreement within the application of Sharia/Muslim family law, so what principles is she talking about, whose version of Islam, to be developed by whom or overseen by which arm of the government to ensure that womens equality rights are not subverted?

Almost all the Muslims who met with Ms Boyd, explained to her that there are few, if any, arbitrators in North America who are knowledgeable of the intricacies of Sharia/Muslim family law and so who did she think could be trusted to ensure there are no violations of rights?

Another recommendation is that funds be provided to private arbitrators for public education. Why would not funds be provided for the resource strapped justice system to make it more responsive and accessible through cultural interpreters and training for judges, so that new immigrants are better served within the system?

Ms Boyd did not truly understand that her concept of voluntary and choice does not take into account the attachment many Muslim women have to their families and communities and that it is not easy to go against their advice.

This seems to be true for other religious women as well, and from the Report, we quote Rabbi Reuven Tradbucks of the Beis Din [Jewish religious tribunals] who said 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. He further states that occasionally the community will make public the refusal of members to follow through the decisions of the Beis Din.

We quote the Rabbi because his sentiments are echoed by some Muslim religious leaders who have said that Sharia/Muslim family law is God ordained and must be followed or the person is guilty of apostasy.

Ms Boyd states creating a separate legal stream for Muslims would require change to our justice system...this is not going to happen. We think she is compensating for this by allowing the use of religion outside the purview of the courts.

She also states, Ontarians do not subscribe to the notion of separate but equal when it comes to the laws that apply to us...equality before and under the law, and the existence of a single legal regime available to all Ontarians are the cornerstones of our liberal democratic society. We agree, so why then is she recommending religious laws that separate and may lead to inequality? Why create a private religious system which has the potential of ghettoizing a whole segment of the Canadian population?

We appeal to our fellow citizens to help us to have the same laws apply to us as to everyone else. We advocate that there should be improvement to the justice system, not encouragement of another private system of law. We recommend that all the provinces follow the lead of Quebec which does not allow for private arbitration as the province considers family matters to be of public interest and public order.

AN OPEN LETTER TO PREMIER DALTON MCGUINTY AND ATTORNEY GENERAL MICHAEL BRYANT

Dear Premier McGuinty and Mr. Bryant:

Based on our preliminary analysis, the Canadian Council of Muslim Women is deeply concerned about the recommendations contained in Marion Boyd’s report, Dispute Resolution in Family Law: Protecting Choice, Promoting Inclusion.

At its meetings with Ms. Boyd during the review process, CCMW had expressed serious concerns about the Arbitration Act and recommended that family matters be exempt from the Act as they are a matter of public order, as is the case in Québec. We will continue to advocate for the removal of family matters from the Arbitration Act, in order to protect women’s equality rights. We are committed to seeing family matters settled under the Family Law Act (FLA). In her report Ms. Boyd observes that the preamble to the FLA has strong gender equality statements. So why would we not want to have the FLA apply to all of us, regardless of religion, culture or ethnicity? There appears to be a lot of flexibility within the FLA to meet the needs of any religious person.

While in the body of the report Ms. Boyd discusses many concerns with respect to the use of Muslim family law and its potential harmful impact on the lives of women and children, these concerns are totally absent from the recommendations.

CCMW acknowledges that some other faith communities use arbitration to settle disputes. Our understanding of the use of religious laws by rabbinical courts is that it is used mostly to settle commercial disputes. The Arbitration Act is not used for the Jewish divorce or “Get”. Neither the Catholics, nor the Anglican churches use the Arbitration Act. Ismaili Muslims have established their own Community Arbitration Board that follows Canadian laws.

While consent of both parties to arbitration is most desirable, the possibility that the woman may be persuaded to agree to arbitration still exists; the power and authority of the family and community may very well over-ride the opinion of the woman. CCMW has been criticized for characterizing Muslim women as incapable of making appropriate choices and decisions for themselves. It is not a matter of capability or capacity – it is simply that the influence of the family and community cannot be underestimated. In her report Ms. Boyd states, “…Religious law serves to determine who is considered a full member of the religious community. …Those who do not conform to religious law may find themselves ostracized, disentitled to practice their religion within the community or entirely disowned by the community”. So what makes her think that those who do not conform will really feel like they have a choice?

The report recommends several legislative/regulatory amendments and safeguards to address the concerns regarding the Arbitration Act and the use of arbitration in the Family Law Act. The Arbitration Act was designed for business and commercial disputes and is inherently problematic for family matters. CCMW believes that the amendments/safeguards being recommended, while well intentioned, do not address the potential harm to women if religious laws are applied.

We highlight the following concerns with the recommendations contained in the report:

· Ms. Boyd recommends the use of religious law to settle family and inheritance disputes. This recommendation is puzzling to us because Ms. Boyd correctly points out in her report that there is virtually no information available on the impact of religious arbitration on women. On what basis then does she proceed to recommend the use of religious law in arbitration?

· Ms. Boyd proposes the application of the “statement of principles of faith-based arbitration” if the arbitration is under religious law. We have previously explained the difficulties of applying Muslim family law because of its complexity and differential application throughout the world. There is no one codified, agreed upon single law on which this statement of principles could be based. Who will formulate this statement of principles? How will consensus on the statement be reached given that there is no consensus on the application of Muslim family law?

· The recommendations related to education and training do not call for mandatory training of arbitrators in ADR. Furthermore, the issue of education of arbitrators in Muslim jurisprudence is not addressed. Who will these arbitrators be and what knowledge and expertise will they possess in Muslim jurisprudence?

· Recommendations on oversight and evaluation of arbitrators address record keeping and reporting requirements. Who will ensure full compliance with these requirements? Appropriate compliance and enforcement mechanisms will require additional resources to be effective.

· The idea behind ADR for family matters was to address the backlog in the justice system; we would prefer to see the resources that will be required to implement the proposed safeguards to be redirected to improve the existing justice system, e.g. increased use of cultural interpreters, cultural/religious sensitivity training of lawyers, judges, etc.

· We are very concerned about the recommendation regarding waivers of Independent Legal Advice with respect to the right to receive advice about Canadian and Ontario family law and Ontario arbitration law – no such waiver should be permitted; the parties have the right to know about these laws.

· The suggestion to provide more public education regarding family law and arbitration is certainly welcomed, particularly the provision of linguistically and culturally appropriate legal information. We are concerned about the resources required to do this well and reach those in greatest need of this information.

· We strongly object to the use of government funds for the development of information materials about rights and obligations under religious law. Again, we stress that these funds should be used to improve the justice system – public funds should not be used to fund any religious materials – who will monitor the content and quality of these materials?

· Legal aid still appears to be unavailable to the parties if private arbitration is used.

Ms Boyd heard from the proponents of the use of religious arbitration that they are exercising their right to religious freedom. CCMW believes that the rights of the person, in this instance the rights of women, under the Canadian Charter of Rights and Freedoms must be considered first and foremost as they protect the fundamental rights of the individual. These rights include equal treatment before the law. Ms. Boyd also heard the following: “Major objection to the use of religiously based arbitration of family law is the inherent inequity between men and women in most religious contexts and the resulting imbalance of power between them when a dispute arises.”

We are believing women who are committed to our faith and 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 and other Canadian laws. To respond to our members’ concerns CCMW has already begun work on developing a primer for Muslim women comparing Muslim family law with Canadian laws to ensure that Muslim women have the information they need to make informed choices and decisions about their lives.

In her report Ms. Boyd states, “...the many years of hard work which have entrenched equality rights in Canada could be undone...to the detriment of women, children and other vulnerable people.” Yet, if implemented, Ms. Boyd’s recommendations will have a negative impact on some of the most vulnerable people in the country. According to a recent report released by CCMW, based on the 2001 Census, Muslim women are among the poorest women in Canada. They are underemployed despite high levels of education and tend to work part-time in low-paying jobs. They have a higher rate of unemployment and a lower rate of labour force participation compared to all women. A higher proportion of Muslim women who work outside the home have pre-school and school-age children. Compared to other women twice as many Muslim women remain separated; fewer of them are divorced – probably because of cultural and economic pressures. Marriage breakdown among Muslim women aged 18-24 is higher than their peers. The full report, entitled Muslim Women: Beyond the Perceptions is available on our website at http://www.ccmw.com/publications/Muslim Women_Beyond the Perceptions.pdf. Other studies conducted by our organization demonstrate an acutely low rate of civic participation among Muslim women. Relegating them to a separate, private religious arbitration system, away from the province’s civil laws, will only exacerbate their level of disadvantage.

We believe the time is ripe for a serious public dialogue on the challenges of balancing women’s equality rights with religious and cultural rights. CCMW will hold a symposium on the theme of Muslim Women in the Justice System: Gender, Religion and Pluralism this spring. We would be pleased to invite you to the symposium as details become available and would encourage your policy staff to attend this crucial event before formulating your response to Ms. Boyd’s report. We intend to present a more detailed analysis of and response to Ms. Boyd’s report at this public forum.

We recognize that members of all faith groups rely on their families and religious communities to mediate and settle disputes. Most family law disputes are resolved outside the courts and in contentious situations, mediation and arbitration by a third party might be sought, without going to a religious court or tribunal. 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.

Mr. Premier and Mr. Bryant, we urge you to reject the application of religious laws under the Arbitration Act.

Alia Hogben
Executive Director
Canadian Council of Muslim Women

cc:        The Honourable Sandra Pupatello
            John Tory
            Howard Hampton
            Peter Kormos
            Marilyn Churley
            Joseph Tascona

McGuinty Calls For Sharis Review

Toronto - Premier Dalton McGuinty has asked two of his senior cabinet ministers to review the use of sharia law to settle civil disputes in Ontario.

Sharia is based on the Koran, the holy scripture for followers of
Islam.

Under Ontario's current arbitration rules, some civil disputes
-including divorce -can be resolved by a sharia tribunal.

McGuinty said he wants to ensure that there is a balance between the traditions of different communities and the rights of all Canadians.

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