The Ontario debate, 2003–2006

Ontario never had a sharia court, and no Islamic tribunal was ever granted authority there. What happened was narrower, and more interesting than the argument it produced: a general 1991 statute let private parties arbitrate civil disputes under rules of law they chose; in 2003 a Muslim organisation announced it would use that statute for family matters; a government review recommended keeping religious arbitration under safeguards; and in September 2005 the Premier instead ended binding religious family arbitration for every faith. The Act that followed is still the law, and it is short: an Ontario family arbitration has legal effect only if it was conducted exclusively under the law of Ontario or of another Canadian jurisdiction.

The law before 2003

The Arbitration Act, 1991 is a general statute. It lets parties to a civil dispute agree to have it decided privately by an arbitrator instead of by a judge, and it gives the resulting award the backing of the court: an award can be enforced on application under the Act, and set aside only on narrow grounds such as a defect in the agreement or a denial of a fair hearing.

Two provisions did the work that later became controversial. Section 31 required an arbitral tribunal to decide a dispute "in accordance with law, including equity". Section 32(1) then said what law: "In deciding a dispute, an arbitral tribunal shall apply the rules of law designated by the parties or, if none are designated, the rules of law it considers appropriate in the circumstances." The parties chose. Nothing in the Act said the rules they chose had to be Canadian.

Nor did the Act carve family matters out. A separating couple could agree to arbitrate property and support, designate the rules to be applied, and have the award enforced. That was the general law of Ontario for every resident of the province from the Act's commencement, and communities used it: Jewish beth din, Ismaili conciliation and arbitration boards and other religious bodies were arbitrating civil and family disputes under the same statute long before 2003.

The proposal, October 2003

In October 2003 the Islamic Institute of Civil Justice, an organisation founded by the Toronto lawyer Syed Mumtaz Ali, announced that it would establish a darul qada — a tribunal to arbitrate family and civil disputes between consenting Muslims according to Islamic personal law, using the Arbitration Act, 1991.

What was proposed had four hard limits, all of them inherent in the statute being relied on. It could act only where both parties agreed in advance to arbitrate. It had no criminal jurisdiction whatsoever — criminal law in Canada is federal and is the Criminal Code, and no arbitration agreement can touch it. It could not bind anyone who did not sign. And its awards were reviewable by the Superior Court on the grounds the Act sets out.

Much of the coverage that followed described the institute as having been granted a power. It had not been granted anything. No minister approved it, no statute named it, and it held exactly the authority any two Ontarians already had to appoint an arbitrator of their choosing. The announcement was an announcement, not a decision of the province.

The strongest opposition came from within Muslim communities. The Canadian Council of Muslim Women campaigned publicly against the proposal, as did the No Religious Arbitration Coalition, on the ground that a woman under family and community pressure cannot meaningfully consent to a private forum, and that the very informality that made arbitration attractive was what would leave her without the protections a court supplies.

The Boyd Report, December 2004

In June 2004 the Ontario government asked Marion Boyd — Attorney General of Ontario from 1993 to 1995, and before that Minister Responsible for Women's Issues — to review the use of private arbitration in family and inheritance matters and its effect on vulnerable people. She was commissioned by the Attorney General, Michael Bryant, and the Minister Responsible for Women's Issues, Sandra Pupatello, and reported in December 2004 in Dispute Resolution in Family Law: Protecting Choice, Promoting Inclusion.

The report recommended that arbitration continue to be available for family and inheritance disputes, including arbitration conducted according to religious principles, subject to a substantial set of safeguards — forty-six recommendations in all. Its reasoning was practical rather than theological: prohibiting religious arbitration would not stop religious dispute resolution, it would move it out of the reach of the law entirely, where none of the protections apply and no court can be asked to look at it. Regulation kept a judge within reach.

The safeguards it proposed are worth setting out, because they are the part of the report that survived — most of them are now statutory, attached to family arbitration under any body of law.

• Independent legal advice for each party before signing an arbitration agreement.
• Arbitration agreements and awards in writing, with reasons recorded.
• Screening of the parties separately for domestic violence and power imbalance.
• Training for arbitrators, including in the law of family arbitration and in identifying coercion.
• A record of the arbitration kept and available.
• No agreement in advance to arbitrate a dispute that has not yet arisen.
• Rights of appeal and judicial review preserved rather than waived.
• Public legal education so that people know what they are agreeing to.

The decision, September 2005

On 11 September 2005 Premier Dalton McGuinty told the Canadian Press: "There will be no Shariah law in Ontario. There will be no religious arbitration in Ontario. There will be one law for all Ontarians."

The decision went well beyond both the proposal and the report. It did not restrict itself to Islamic arbitration: it ended binding religious family arbitration in Ontario for every faith at once. Jewish and Christian bodies that had been arbitrating family disputes under the 1991 Act for years lost the same power on the same day, which is why some of the sharpest criticism of the announcement came from communities that had never been part of the argument.

Quebec had spoken earlier. On 26 May 2005 the National Assembly adopted unanimously, across party lines, a motion moved by the member Fatima Houda-Pepin opposing the establishment in Quebec and in Canada of so-called Islamic courts. The motion changed no law and did not need to. Article 2639 of the Civil Code of Quebec already provided that disputes over the status and capacity of persons, family matters and other matters of public order may not be submitted to arbitration at all. What the motion denounced had never been legally possible in Quebec in the first place.

The law since 2006

The Family Statute Law Amendment Act, 2006 received Royal Assent on 23 February 2006. Its operative amendments to the Arbitration Act, 1991 and the Family Law Act were proclaimed in force on 30 April 2007. A regulation made under the Arbitration Act, O. Reg. 134/07 (Family Arbitration), supplied the operating requirements. Those amendments did four things.

First, it created a defined thing called a family arbitration. Section 1 of the Arbitration Act, 1991 — and section 51 of the Family Law Act in the same terms — now define it as an arbitration that "(a) deals with matters that could be dealt with in a marriage contract, separation agreement, cohabitation agreement or paternity agreement under Part IV of the Family Law Act, and (b) is conducted exclusively in accordance with the law of Ontario or of another Canadian jurisdiction". The second limb is the whole of the change: applicable law became part of the definition.

Second, it stated the consequence, and stated it flatly. Section 2.2(1) of the Arbitration Act — repeated word for word at section 59.2(1) of the Family Law Act — provides that where a decision on such a matter is made by a third person "in a process that is not conducted exclusively in accordance with the law of Ontario or of another Canadian jurisdiction", then "(a) the process is not a family arbitration; and (b) the decision is not a family arbitration award and has no legal effect." It is not made an offence, and nobody is prohibited from anything. The decision simply does not count.

Third, it removed the parties' choice of law in family matters. Section 32(1), which had let the parties designate the rules of law to be applied, no longer applies to a family arbitration: section 32(3) says so, and section 32(4) requires the tribunal to apply the substantive law of Ontario, or that of another Canadian jurisdiction if the parties expressly designate it. Section 3 was amended so that the parties cannot contract out of those provisions.

Fourth, it wrapped family arbitration in the protections of domestic contract law. A family arbitration agreement became a domestic contract under section 51 of the Family Law Act, and new Part IV.1 attached conditions: no binding agreement to arbitrate a family dispute before it has arisen (section 59.4); an award is unenforceable unless the agreement was in writing in accordance with the regulations and each party received independent legal advice before making it, certified by the advising lawyer (section 59.6); and any agreement to vary or exclude those protections is "without effect" (section 59.3). The regulation added arbitrator training and separate screening of the parties for power imbalance and domestic violence — the Boyd Report's safeguards, enacted over a narrower field than she had proposed.

What the Act did not do is as important as what it did, and the legislature wrote it into the same sections. Section 2.2(2) of the Arbitration Act and section 59.2(2) of the Family Law Act each provide: "Nothing in this section restricts a person's right to obtain advice from another person." Religious guidance was expressly preserved. What was withdrawn was enforceability, in one field.

• It applies to every religion equally — nothing in the amendments names Islam, or any faith.
• It applies to family arbitration only. Commercial and other civil arbitration under section 32(1) still lets the parties designate the rules of law to be applied, religious rules included.
• It does not touch mediation, conciliation or counselling — only binding arbitration.
• It is Ontario law. Other provinces have their own arbitration and family statutes, and the answer elsewhere is not automatically the same.

Where that leaves things

For a Muslim family in Ontario today the position is clear enough to act on. An imam, a mosque council or a fiqh panel may be asked for religious guidance on a marriage, a divorce or an estate, and the statute itself protects that. What none of them can do is make a decision that binds anyone in law about family property, spousal or child support, or children. Take the same dispute to a family arbitrator and the arbitrator must apply Ontario law, whatever either party's convictions.

That is a limit on one route, not on the objective. The instruments that actually carry Islamic obligations into Canadian legal effect were never arbitration, and were untouched by any of this: a will that sets out the fixed shares as express fractions; a marriage contract dealing with mahr, drafted to the Family Law Act's Part IV standard; beneficiary designations and the way property is held. Those are ordinary Canadian instruments, they are enforceable, and their content is yours to decide. The keystone page of this section sets out how each of them works.

One qualification on geography. Everything above is the law of Ontario. The provinces legislate separately on arbitration, family property and wills, and a family in Alberta or British Columbia is not governed by the Family Statute Law Amendment Act, 2006 at all. If the question is what may be arbitrated where you live, it is a question for a family lawyer in your province.