Don't Throw Out my Baby! Why Dalton McGuinty was Wrong to Reject Religious Arbitration
| Author | Eli Walker |
| Pages | 97-108 |
97 APPEAL VOLUME 11 2006
DON’T THROW OUT MY BABY!
WHY DALTON MCGUINTY WAS WRONG
TO REJECT RELIGIOUS ARBITRATION
Eli Walker
On September 11, 2005, Ontario Premier Dalton McGuinty informed
the Canadian Press that his government would act to remove the
arbitration of family law disputes from the operation of the province’s
1
McGuinty said religious arbitration could not be part
of a cohesive multicultural society and from that point forward there
would be “one law for all Ontarians”.
2
In so doing, McGuinty sought
to end debate on whether Ontario should continue to accept binding
arbitration of family law disputes. This debate was sparked by
publicity surrounding a new Islamic tribunal in Toronto that proposed
to arbitrate Muslim family disputes on faith-based principles.
McGuinty’s choice rejected the recommendations made by former
Ontario Attorney General Marion Boyd, whom he had commissioned
to examine the issue, and did so by relying on either (1) classic liberal
conceptions of absolute shared citizenship, or (2) feminist critiques of
multiculturalism. The former justification is offensiv e to some of
Canada’s founding principles. The latter, while a valid criticism of
private arbitration of family disputes, should have led the premier to
implement the Boyd Report. Instead, he intends to throw out the
baby with the bath water.
1
S.O. 1991, c. 17.
2
“McGuinty rules out use of sharia law in Ontario” CTV News (12
September 2005), online: CTV.ca
217_26/?hub=TopStories>.
98 APPEAL VOLUME 11 2006
The Baby: Why Arbitration of Family Disputes Is
Good
Binding arbitration of family disputes has been available in Ontario
since the nineteenth century.
3
It is enabled by government legislation
that compels the courts, with some exceptions, to enforce the
decisions of private arbitrators on application by the “winning” party.
Arbitrators are appointed by the disputing parties in an arbitration
agreement, w hich functions like a private contract. In 1992, Ontario
adopted the new Arbitration Act to further limit the courts’ discretion
to refuse or vary awards.
4
A “losing” party has a statutory right to
appeal, but it may be waived. A losing party also has a right to seek to
invalidate an award on the rules of contract law or on application for
judicial review, but the latter option is limited. In family disputes,
judicial review will likely only arise because of a breach of procedural
fairness,
5
or because the award engages the courts’ common law parens
patriae jurisdiction to interfere for the best interests of children.
6
There are two justifications for binding arbitration of family disputes:
efficiency and freedom of choice. Boyd reports that arbitration and
other alternative dispute mechanisms “offer some relief for court
backlogs that [are] causing family disputes to drag on over time, thus
exacerbating the conflicts”.
7
Indeed, as recently as September 2004,
current Ontario Attorney General Michael Bryant called arbitration
3
Marion Boyd, “Dispute Resolution in Family Law: Protecting Choice,
Promoting Inclusion” (20 December 2004), online: Ontario Ministry of
the Attorney General
at 11.
4
Boyd, supra note 3 at 11.
5
Hercus v. Hercus, [2001] OJ No. 534 (S.C.) at paras. 77, 130 and 135.
6
Duguay v. Thompson-Duguay, [2000] OJ No. 1541 (S.C.) at paras. 31-32.
7
Boyd, supra note 3 at 34.
APPEAL VOLUME 11 2006 99
“the invaluable way in which we’re achieving justice in the province”.
8
So binding arbitration provides an alternative venue for speedier
resolution of family disputes. This usually means fewer costs for the
parties involved and always means less cost for the justice system.
The stronger justification is freedom of choice. Arbitration offers
citizens the benefit of resolving disputes away from the formal
courtroom environment, with an arbitrator of their choice and, within
limits, according to the principles they choose.
9
To a cultural minority,
arbitration is of additional utility because they can use it to resolve
family disputes according to their own values, which may differ in
important respects from those held by the dominant community. So
long as these intra-group resolutions do not violate baseline rights
guaranteed by individual Canadian citizenship, this flexibility creates
what Will Kymlicka envisioned as multicultural citizenship, and may
provide a minority community with better resolutions to family
disputes than are available to them in a court system that is generally
blind to cultural differences.
Kymlicka largely agrees with classic liberalism on the importance of
the liberty for each person to pursue their own individual good and
the resulting just society.
10
However, he adds, a just society may
require that members of minority communities be able to exercise
group-specific rights in addition to their individual citizenship rights.
11
This is because (1) one’s culture provides context for de termining
one’s good, and its exercise is therefore a basic source of self-
actualization and fulfillment;
12
and (2) the laws and policies of the
dominant culture, even if applied equally, will often be experienced
8
John Jaffey, “AG Promises Family Law Update to Reflect Changing
Society” The Lawyers Weekly 24: 19 (24 September 2004).
9
Supra, note 1, s. 32(1) of the Arbitration Act allows arbitrations to be run
according to rules of law designated by the parties.
10
Will Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights
(Oxford, Clarendon Press, 1995) at 80-82.
11
Ibid. at 96-97.
12
Ibid. at 106-107.
100 APPEAL VOLUME 11 2006
negatively by minorities.
13
For instance, intestate succession in
Ontario follows rules set out in the Succession Law Reform Ac t that
distribute the estate in a hierarchy.
14
Some aspects of this, like
favouring independent children over independent parents, are
arbitrary choices that reflect the dominant culture’s presumption of
the nuclear family as the basic social unit. When a minority
community does not share this presumption they may experience
intestacy as a restriction on their liberty to exercise their culture. Thus
Kymlicka’s just society might defer to the minority community on
certain intestacy laws.
Of course, some of Ontario’s intestacy laws are policy-driven choices
directed at reducing the feminization of poverty by ensuring that
spouses have priority rights to the deceased’s estate. Deference that
sacrificed these rights at the altar of minority group rights would be
undesirable because it would amount to a step backward in ensuring
women’s equal capacity to pursue their good. It would also therefore
be a violation of the primacy of individual rights that underlies
Kymlicka’s theory of the just society.
So, in my view, arbitration may be beneficial to family law in Ontario
because (1) it is more efficient for both citizens and the justice system,
(2) it provides citizens with greater freedom of choice in how they
resolve family disputes and (3) it may allow minority groups to
exercise their cultural values in the resolution of family disputes, so
long as they do not violate individual rights.
The Bath Water: Why Arbitration of Family
Disputes Causes Problems
Kymlicka’s theory does not go unassailed. Its critics argue that the
reality of stat e-sanctioned group rights in a multicultural society is (1)
balkanization of ethnicities, cultures and religious groups and (2) the
hidden oppression of women within patriarchal minority cultures and
religions.
15
The paucity of McGuinty’s statements leaves the
13
Ibid. at 108-109.
14
R.S.O. 1990, c. S.26, ss. 44-47.
15
Ayelet Shachar, “Religion, State, and the Problem of Gender: New
Modes of Citizenship and Governance in Diverse Societies” (2005) 50
APPEAL VOLUME 11 2006 101
impression that he has rejected family arbitration out of a fear that
recognition of group rights will lead to entrenched legal pluralism and
erosion of a cohesive civil society. But Canada’s very foundation is
legal pluralism. It is a compromise founded on federalism: a regional
legal pluralism specifically intended, among other things, to
accommodate a cultural and religious minority: French Canadians.
16
Further, although we tend to ignore this, Aboriginal title in Canada is
premised on the pre-existing authority of Aboriginal systems of law.
17
Outside of rights ceded through treaty, Aboriginal legal systems
continue to operate in concurrence with Canadian law.
18
First Nations
are also subject to a distinct legal regime under the Indian Act. Finally,
religious arbitration of family disputes has carried on in Ontario for
some time and the province is not, as a result, a haven of ethnic
ghettoes and internecine dispute.
19
Thus it would be absurd to reject religious arbitration of family
disputes in fear of legal pluralism, and I cannot imagine McGuinty did
so. It is far more likely that he rejec ted arbitration on the basis of the
feminist critique of multiculturalism. Supporting this inference, on
September 8, 2005, three days before McGuinty’s announcement,
Attorney General Michael Bryant wrote: “there will be no binding
McGill L.J. 49. Shachar also notes civic-republicanism and
ethnoculturalism as other critiques of multiculturalism but these theories
have not, I think, played a role in the arbitration debate.
16
Reference re: Secession of Quebec, [1998] 2 S.C.R. 217 at paras. 43-44.
17
18
See Connolly v. Woolrich (1867), 11 L.C. Jur. 197, 17 R.J.R.Q. 75 (C.S.
Que.), where the Court found that a marriage between a white man and
Cree woman conducted in accordance with Cree law was binding on the
parties under Quebec law.
19
Boyd, supra note 3 at 55-61. Boyd notes in particular the Toronto
Jewish community’s Beis Din arbitration tribunals, the Ismaili Muslim
National Conciliation and Arbitration Board, and the El Noor Mosque in
Toronto. All have been arbitrating since before the 1992 enactment of the
present Arbitration Act.
102 APPEAL VOLUME 11 2006
family arbitration in Ontario that uses a set of rules or laws that
discriminate against women”.
20
Ayelet Shachar and Natasha Bakht, employing the feminist critique in
separate papers, argue that women in minority communities are the
frequently unheard victims of state efforts to accommodate group
rights, and of minority group efforts to express their cultural values.
21
This problem frequently plays out in family law because (1) the
continuing public/private divide encourages state regulation to keep
out of much of what occurs in the family and (2) minority groups, like
everybody, feel the shape and management of the family is an
important locus of cultural expression.
22
Thus family arbitration, a nd
particularly faith-based arbitration, is a model example of minority
cultures seeking to exercise greater control over family law because it
is a major venue for expression of their values, while the state is prone
to accommodate because the family is st ill the “private” sphere, albeit
to a lesser extent than in the past.
Because minority communities frequently retain more patriarchal
values than wider Canadian society, the critique continues, and
women in minority communities who resolve family disputes through
arbitration will be robbed of the benefits of legal reforms available in
the courts, such as mandated divisions of ma trimonial property and
statutory guarantees of spousal and child support.
23
They may also be
denied the benefits of screening for abuse that (ideally) takes place
when family disputes enter the legal system.
20
Michael Bryant, “Statement by Attorney General on the Arbitration Act,
1991” (8 September 2005), online: Ontario Ministry of the Attorney
General
8-arb1991.asp>.
21
Shachar, supra note 15 at para. 6. See also Natasha Bakht, “Arbitration,
Religion and Family Law: Private Justice on the Backs of Women” (March
2005) online: National Association of Women and the Law
22
Bakht, supra note 21 at 39.
23
Shachar, supra note 15 at para. 22. Bakht at 40.
APPEAL VOLUME 11 2006 103
These women are unlikely to protest this unequal treatment because
(1) they are unable to claim their individual rights due to language,
culture and socioeconomic barriers, (2) they fear abuse and alienation
from their community, or (3) they are unwilling to claim these rights
because they do not wish to undermine their minority culture.
24
Thus
the effect of allowing family arbitration is to further marginalize the
very women who were meant to enjoy greater fulfillment and self-
actualization via enhanced freedom of choice and cultural expression.
The freedom of the minority community begets a cultural prison for
the minority woman—no doubt a step backward in Canada’s efforts
to ensure substantive equality.
Bakht also argues that secular women from the dominant community
are similarly vulnerable to the disadvantages of private arbitration.
25
Although not subject to faith-based arbitration, these women may
find systemic gender discrimination influences arbitration to a greater
extent than the courts because arbitration lac ks statutory standards
and procedures. And while not subject to the same barriers of
language, culture and threatened alienation, they may be similarly
likely to accept unjust arbitral awards if they are abused or do not
have the socioeconomic resources to do otherwise. In this way family
arbitration may pose the same threats to women from the dominant
community as it does to women from minority communities.
Keep the Baby, Toss Most of the Bath Water: The
Boyd Report
Despite these critiques, the Boyd Report concluded that Ontario
should attempt to retain the benefits of arbitration. In my view this
conclusion reflects a realistic appraisal of Ontario’s options and a
conviction that there is an acceptable balance to be found between
the benefits and dangers of private arbitration.
The key question is whether private resolutions of family disputes
should be upheld by the courts and, if so, under what conditions. It is
not about whether or not private resolutions to family disputes should
take place. Critics acknowledge that even abolishing binding family
arbitration will not stop individuals, particularly those in religious
24
Bakht, supra note 21 at 41, 64-65.
25
Bakht, supra note 21 at 63.
104 APPEAL VOLUME 11 2006
minority communities, from resolving disputes by private contract
and faith-based tribunals.
26
A comparative study indicates that
Muslims in Britain, polled in 1989, were twice as likely to resolve
family disputes in faith-based tribunals even though the decisions held
no legal authority in the courts.
27
Granted, ending binding arbitration
will almost surely eliminate its use amongst secular Ontarians who will
see little incentive to undertake a process the courts will disregard. But
for members of a religious community, the decisions of a faith-based
tribunal will continue to carry substantial authority on the basis of
community, culture and religion. The feminist critique’s primary
concern in private arbitration is vulnerable women, those who are
unable or unwilling to seek judicial remedy of their unjust treatment,
and who will continue to abide by the private resolution of family
disputes in faith-based tribunals after binding arbitration is gone.
A second point is that the critique relies on the assertion that the
benefits of Kymlicka-style accommodation are theoretical while the
actual effect of accommodation is the oppression of women.
However this has yet to be established. Boyd did not find any
evidence to suggest that women are being syste matically discriminated
against in family arbitration, faith-based or not.
28
Bakht is correct to
argue that this conclusion does not mean that discrimination is not
happening.
29
It is quite likely that some women are unable or unwilling
to appeal arbitral decisions, apply for judicial review or come forward
about unjust treatment. It is equally plausible that some women are
unaware that this treatment is unjust relative to their individual rights.
Nevertheless, in this total absence of evidence it would be rash to
26
Bakht, supra note 21 at 65. See also Jean-Francois Gaudreault-DesBiens,
“The Limits of Private Justice?: The Problems of State Recognition of
Arbitral Awards in Family and Personal Status Disputes in Ontario”
(2005) 16:1 World Arbitration and Mediation Report 23.
27
Pascale Fournier, The Reception of Muslim Family Law in Western Liberal
States (30 September 2004), online: Canadian Council of Muslim Women
25.
28
Boyd, supra note 3 at 133.
29
Bakht, supra note 21 at 57.
APPEAL VOLUME 11 2006 105
eliminate the benefits of arbitration without first trying to quantify
and remedy its likely weaknesses.
So the practical result of prohibiting family arbitration in Ontario will
be (1) loss of the benefits of efficiency, freedom of choice a nd
multicultural accommodation, (2) continued use of private resolutions
of family disputes by at-risk women in minority communities and, (3)
the only ostensible benefit, the virtual elimination of arbitration
amongst at-risk secular women—all on the basis of a reasonable
suspicion of unverifiable injustice.
By contrast, implementing the Boyd Report would allow the existing
benefits of binding arbitration to c ontinue while alleviating some of
the problems of unregulated private arbitration. Boyd’s
recommendations propose to do this in three ways: (1) better
oversight of family arbitration, (2) more avenues for the courts to
interfere with or revoke arbitral awards and (3) more opportunities for
women to opt out of arbitration.
First, Boyd recommends making private arbitration of family law a
regulated arena. She suggests the formati on of a self-regulating
industry much like a provincial bar association.
30
She would require
that, in every insta nce, arbitrators certify in writing that they have
screened the parties for abuse.
31
All arbitrators would also be required
to maintain written records of arbitral awards and to submit
summaries, free of identifying information, to a branch of the
provincial government or, upon its formation, to the self-regulating
professional association.
32
Over time, these records would constitute
actual evidence that could be used to conduc t real policy research into
the incidence of unjust treatment and appropriate responses. Ideally,
in the event that evidence shows a particular arbitrator or tribunal is
systematically discriminating against women, or they refuse to submit
records, the professional association could remove their license to
30
Boyd, supra note 3 at 135-136. Recommendation 14.
31
Boyd, supra note 3 at 136. Recommendations 18 and 19.
32
Boyd, supra note 3 at 140-141. Recommendations 38, 39 and 41.
Additionally, in Recommendation 20, Boyd suggests that a court could set
aside an award if the required documents for the arbitration were not
maintained; at 137.
106 APPEAL VOLUME 11 2006
practice. This would result in legal sanctions were the impugned
tribunal to continue to practice—an option not available against faith-
based tribunals if binding arbitration is prohibited altogether.
Second, Boyd recommends increasing the courts’ avenues to interfere
with arbitral awards. Boyd recommends that arbitral awards be
included in the class of domestic contracts the courts may vary under
the protections of s. 56(4) of the Family Law Act.
33
This
recommendation would effectively add three grounds to the existing
bases for judicial review: if a party to the arbitration is receiving social
assistance, if a party fails to disclose assets or liabilities, or if a party
does not understand the nature and consequences of the arbitration.
34
Classifying arbitration awards under s. 56(4) would also make them
subject to the courts’ right to review the validity and fairness of
domestic contracts.
35
Third, Boyd makes suggestions aimed at improving the prospects that
at-risk women would either opt out of arbitration or exercise their
rights to appeal and judicial review. Boyd recommends t hat an
arbitration award be invalid without prior signed certificates of
independent legal advice or signed waivers of independent legal
advice.
36
She also recommends that arbitration agreements that form
part of a marriage contract must be reconfirmed in writing at the
actual time of the dispute but before arbitration begins.
37
Conclusion
Of course problems remain. A self-regulating professional association
is unlikely to gain powers of coercion over arbitrators for quite some
time. Women may continue to experience injustice while the
government gathers and analyzes factual evidence. Expanded judicial
review does not mean vulnerable women will be any more
empowered to exercise the option. Boyd’s recommendat ions continue
33
R.S.O. 1990, c. F.3.
34
Boyd, supra note 3 at 133-134. Recommendations 3 and 8.
35
36
Boyd, supra note 3 at 134 and 137. Recommendations 9(b) and 21 to 24.
37
Boyd, supra note 3 at 134. Recommendation 5.
APPEAL VOLUME 11 2006 107
to allow parties to entirely waive their rights to appeal and
independent legal advice. However, some of these shortfalls are
Boyd’s concessions to the benefits of efficiency in arbitration. Were
McGuinty so inclined, he could strengthen the recommendations, at
some cost to efficiency, for greater protections against the risk of
injustice. He could make independent legal advice mandatory and
eliminate the ability to waive appeals on questions of law.
Unfortunately, women made vulnerable by the intersection of
disadvantage in gender, class, religion and language will continue to be
exposed to the risk that they may be treated unjustly in private
arbitration. The Boyd recommendations can only address this
peripherally. But the truth is these same women will be exposed to
this risk even if arbitration is prohibited, and the injustice is unlikely to
register in any public record. By regulating private arbitration of family
disputes, faith-based or otherwise, Ontario can gain a better
understanding of whether systemic discrimination is occurring and
address the problem without a needless sacrifice of the flexibility of
arbitration. There is a balance to be found here.
Postscript
On F ebruary 14, 2006, several months after I set this argument out,
the Ontario legislature passed the Family Statute Law Amendment Act
38
to give effect to McGuinty’s promise that there would be one law for
all Ontarians. Instead of prohibiting family arbitration altogether, the
Act implements all the safeguards of the Boyd Report I highlighted
above, including mandatory certificates of independent legal advice
and an unconditional right to appeal.
Despite this invigoration of judicial and policy oversight of family
arbitration, the Act nonetheless mandates in ss. 1(2) and 5(10) that
family arbitration must be conducted exclusively in accordance with
the law of Ontario to have any legal effect, thus banning faith-based
arbitration. This seems unnecessarily parochial and destined for
challenge under the Canadian Charter of Rights and Freedoms.
39
38
S.O. 2006, c. 1.
39
Part I of the Constitution Act, 1982, being Schedule B to the Canada Act
1982 (U.K.), 1982, c. 11.
108 APPEAL VOLUME 11 2006
As Tarek Fatah of the Muslim Canadian Congress asserted after the
amendments were passed, it may be tha t the nascent Islamic Tribunal
that sparked the debate was indeed an attempt by Islamic
fundamentalists to make headway via Canadian multiculturalism.
40
And clearly it is not desirable to facilitate hermetic mini-theocracies
within Canada. But McGuinty’s blunt response of total prohibition
ignores the examples of success Boyd found in the Jewish Beis Din,
the Ismaili Muslim National Conciliation and Arbitration Board, and
the El Noor Mosque in Toronto.
41
It also remains the case that at-risk
women in minority communities will continue to feel the authority of
faith-based tribunals, whether they are part of the province’s
arbitration regime or not.
In my view it would still be best to make these bodies subject to the
newly enacted powers of judicial and policy oversight. Even if Tarek
Fatah is right about the influence of fundamentalist Islam, are not the
new powers of judicial oversight a better remedy than no oversight at
all? And is this manifestation of Islam so complete ly insidious that its
control demands a total ban on all faith-based arbitration? In the
context of the Charter it is arguable this blanket prohibition is not a
demonstrably justifiable and reasonable limit on freedom of religion
under s.1. Although there is a rational connection between the ban on
religious arbitration and the protection of at-risk women in minority
communities, the prohibition is not a minimal impairment of the
religious freedom in question. As such I question whether it is not
sure to draw Charter challenge from those communities who were
arbitrating on faith-based principles prior to the controversy.
40
Lee Greenberg, “Ontario Bans Religious Arbitration, Legal Since 91”
CanWest News Service (15 February 2006), online: Canadian Jewish
Congress.
41
See Shachar, supra note 15.
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