Equal rights for Muslims

When Ontario Premier Dalton McGuinty told the media in September that his government would ban faith-based arbitration, his statement quelled protests by a loud anti-FBA lobby that had campaigned against proposals by some Muslims to bring their private family law arbitration system under government regulation and judicial review through the Arbitration Act.

McGuinty’s statement was widely interpreted as a disavowal of a government-commissioned report by Marion Boyd, a former Attorney General in the NDP government of the early 1990s, which had endorsed the Muslim proposals. Boyd recommended strengthening the legislation to improve arbitration procedures and ensure that parties consenting to arbitration were fully informed of their legal options.

On November 15, the government introduced its response to the Muslim proposals and Boyd’s report. Bill 27, the “Family Statute Law Amendment Act, 2005”, implements virtually all of Boyd’s major proposals. If it is adopted:

- Private arbitration will remain an option in Ontario for resolving family law issues such as separation, child custody and inheritance without the need for expensive and public litigation in the courts.
- All family arbitration agreements will become domestic contracts under the Family Law Act, with its provisions to protect vulnerable parties such as women and children. Child protection legislation will be amended along the same lines.
- Arbitrators will be trained and certified in dispute resolution and required to inquire into such matters as power imbalances, domestic violence and child abuse, and to report any such evidence.

These measures implement key recommendations in Boyd’s report, and appear, to me at least, to correspond generally to what most Muslim proponents of family law arbitration were seeking.

The proposed legislation states that all arbitration processes and agreements, to be legally recognized and enforceable, must be consistent with Ontario and Canadian law.

However, contrary to McGuinty’s earlier pledge, Bill 27 would not ban “faith-based arbitration” as such. There is nothing in the legislation that would bar the use of arbitrators – including priests, rabbis or immans – who claim to invoke faith-based principles in their interpretation of the law, provided such arbitrators undergo the required legal training and certification.

This, of course, is the same approach long applied to judges, who are not required to abandon their religious beliefs, if any, when they apply the law. It is also the approach advocated by most of the pro-arbitration Muslims consulted by Marion Boyd when she prepared her report.

There has been little reaction to Bill 27 so far by either the Muslim community or by the critics of FBA, many of whom waged a noisy, misleading and frankly Islamophobic campaign over the past two years against “sharia law”.

Strangely, the introduction of the bill was barely reported in the media. Few people in Ontario appear to be aware of it.

Bill 27 has yet to go through the legislative committee process and final adoption, and we don't know what additional regulations might be imposed by McGuinty’s cabinet. Until then, the fight for equal arbitration rights for Muslims is far from over.