Women Rights & Muslim

Family Law
Canadian Council of Muslim
Women
February 16, 2010
Presented by Fauzya Talib, CCMW Board
Member
to the Council of Women, Ottawa

Outline

Muslim Laws and Womens Rights

Religious Arbitration
Family Law Act
Muslim Family Law
Muslim Laws in Canada

Muslim Laws and Womens Rights

Muslims are guided by the Quran and the Hadith

Quran considers women as spiritually equal to men even taking care to
specifically include women in passages dealing with spiritual duties and
rewards. E.g. Chapter 33, Verse 35: God has prepared great forgiveness
and reward for both men and women who surrender to Him, for both men
and women who believe, for both men and women who obey; also
highlighted in the Quran are good and kind relations between husband and
wife. (Primer, p. 4)
Hadith (sayings or anecdotes of the Prophet), are a kind of secondary
scripture. Hadith maintains respect for womens spirituality and for malefemale relations. E.g. men are promised a special reward for bringing up
daughters, and men are urged to properly maintain their family.
What is sharia?
The commandments or laws of God are known as sharia, the ideal path of life
intended by God. Around the world, Muslims are not of one opinion about the

laws of Sharia.
What about Muslim law?

Disagreement among Muslims concerning the correct approach to the law and the
position of women within it.
Theres no one codified Muslim law.
Muslim law is a large body of work built up by many dedicated scholars through the
centuries.
There are various schools of thought, and each has its own interpretations and rules.
Even scholars within the same school may disagree on the exact details of the law.

Muslim Laws and Womens Rights

Main schools of Muslim jurisprudence

Four Sunnite schools of jurisprudence - Hanafite, Malikite,
Shafiite and Hanbalite - and one main Shiite school, the Jafari.
Each has its own interpretations and rules, and there is a
variety of legal opinions among the different schools.
At times, scholars even within the same school disagree on the
exact details of the law.
Religious and legal authority
Legal authority in Islam does not belong to any one person or
organization.
The believers themselves choose the persons they think to be the
most knowledgeable and pious to give them advice about the law.
According to the Sunnites, this is counsel only, which can be rejected
by a sincere conscience and mind.
Literally meaning selection, takhayyur as a legal concept perhaps
best translated as eclecticism. It recognizes that individual Muslims
may follow the legal interpretation of any school of law or, indeed, of
any individual scholars within those schools.
Under the principle of takhayyur, Muslims are not bound to the
schools of law they were born into or that predominate in the regions
where they live.
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Muslim Laws and Womens Rights

Reformists vs traditionalists

Reformists believe that Muslim laws regarding social

intercourse are meant to be constantly reinterpreted
according to time and place so that they continue to
reflect basic values in different kinds of societies.
Reformists point out that the term used for law is fiqh,
or understanding, indicating that it is a product of the
human mind and therefore fallible. This fallible human
understanding of Gods law, according to the reformists,
is meant to be constantly questioned and revised.
Traditionalists regard the rules of the traditional laws as
fixed. They are likely to equate their understanding of
law with sharia, the ideal path of life intended by God.
In the view of traditionalists, the laws are a timeless
reflection of an ideal and divinely ordained pattern of
social relations.
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Religious Arbitration - Background

Oct 2003 debate arose around a clause in the Arbitration Act,

stating that other laws, notably religious laws may be applied in
arbitration settlements; this opened debate on the application of
religious laws in family matters in Ontario
Issue: instead of being restricted to the resolution of commercial
disputes, the door was opened for any laws from any country or any
religion and for any purpose.
Public outcry from Canadian and international faith-based
organizations, feminists groups, community groups, researchers and
media
Premier of Ontario, Dalton McGuinty appointed Ms. Marion Boyd
(former Attorney General under the provincial NDP government) to
review the Arbitration Act and the impact arbitration may have on
people who may be vulnerable, including women, persons with
disabilities and the elderly
Also tasked with reviewing religious-based arbitration
Ms. Boyd met with numerous groups who were either proponents or
opponents of the issue before submitting a report of her findings in
2004
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Religious Arbitration - Proponents

Among the proponents of the use of religious based arbitration
were some Muslim organizations, primarily the Islamic Institute
for Civil Justice who proposed the use of Sharia/Muslim Family law
in Ontario.
What this meant was the Act would permit private, legally
binding arbitration to settle issues that affected the personal
status of people such as wills, inheritance, marriage, remarriage,
marriage contracts, divorce, maintenance, custody and
maintenance of children, and guardianship.
Proponents argued that religious-based arbitration was enshrined
under the Canadian Charter - right to practice ones religion; that
this was a form of accommodating the needs of religious
minorities within a multicultural society; private arbitration would
relieve the backlog of courts; private arbitration was a matter of
choice; informal mediation was already taking place and it would
be better to have these recognized and legitimized by the
Arbitration Act; that confidentiality was emphasized especially for
women who do not want their problems made public.
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Religious Arbitration - Opponents

Opponents to Religious-based Arbitration argued that over the
past 30 years there had been progress in separating the JudeoChristian values from the Family Law regime, to basing these
laws on human rights principles; that use of private arbitration
would privatize family law by creating a parallel system of law,
allowing the religious, cultural and political elites to decide on the
applicable law, with the option to circumvent Canadian family
law. The Family Law Act has values stated in its Preamble, while
the Arbitration Act has no underlying principles about the family.
Canadian Council of Muslim Women along with several other
womens organizations stated that family issues should be a
matter of public law; that any implementation of religious laws
would be harmful for many women and children especially
considering the prevalent conservative interpretation of Muslim
Family Law as applied to women; that Religious laws were based
on a patriarchal model of the family and not on equal partnership
of the family.

Religious Arbitration CCMW Concerns

Several concerns, among them were:
As a newer immigrants, Muslims are searching for markers to identify themselves
as a faith group and the use of Sharia/Muslim Family Law was being used as one
such marker. Concerns this raised were:

Some Muslim women may be persuaded to use the Muslim family law option out of deference
to their religious beliefs, rather than seeking protection under the law of the land;
that several new sets of laws might be applied to Muslims demarcating what it is to be
Muslim. Problematic as Muslim law is not monolithic, nor simple, nor applied consistently
across the world.
Religion would be used as a "coercive" force instead of a enhancement to our lives.
Privately arbitrated decisions were legally binding, and while the right of appeal existed, it
was almost impossible to exercise it without incurring tremendous personal and financial
hardship.
Optional use was being eroded by some who were saying that not following Sharia/Muslim
Family Law was tantamount to heresy-apostasy.

Using the extreme, and inaccurate argument that this is the right of religious
freedom makes other Canadians and politicians wary of any analysis and
resolution of the issue
Using Multiculturalism is a false argument as it misuses the policy which was
never meant to take away the equality rights of a group such as those of Muslim
women.
Instead of addressing the issues resulting from inefficiencies and ineffectiveness
of the federal/provincial court system the government was allowing the growth of
privatization of the legal system and the lowering of some of the safeguards. The
necessary improvements to the courts had to be challenged by the concerted
efforts of all Canadians without reference to anyones religious or cultural beliefs.
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Religious Arbitration vs Canadian Law

CCMW maintained that Canadas Laws provided Womens
Equality Rights:
In Canada, the Canadian Charter of Rights and Freedoms
specifically addresses equality rights.
Canada is also a signatory of the Convention on the
Elimination of all Forms of Discrimination Against Women
(CEDAW) and of the International Convention on Civil and
Political Rights (ICCPR). Both these documents provide
equality-rights protection for women which take precedence
over the right to religious freedom.
Case Law:
Case law, or court decisions, further addresses the issues of
womens rights. Public court decisions are required to conform
with the Canadian Charter of Rights and Freedoms.
Court decisions are a matter of public record and can be
appealed to a higher court.
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Religious Arbitration Rallying Our

Efforts

CCMW with the help of many others groups created a coalition

and though there were many differences amongst us, all pulled
together for the same principles. The coalition was very powerful
in mobilizing the various communities and in influencing the
politicians. Prominent Canadians agreed to a joint letter which
was published in the Globe and Mail on Saturday Sept 10/06 and
we understand this letter had an impact on the Premier.
There were many politicians, at both the federal and provincial
level who became allies. We also received huge support from
international partners such as Women Living Under Muslims
Laws and are most grateful to Rights and Democracy for bringing
these lawyers, scholars and activists to Canada.
The YWCA website has the Joint Declaration signed by
organizations and individuals. The Steering Committee of the
coalition led much of the work.
CCMW maintains deep gratitude to many, including the Council
of Women for their collaboration on this issue which affected all
women.

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Religious Arbitration - Outcome

Boyd Report made public in December 2004; included 46

recommendations, not requirements, but even these do not protect or
safeguard any rights.
The Ontario Institute of Dispute Resolution, Ontario Association for
Family Mediation and the Family Mediation Canada, wrote to the Premier
that Boyds recommendations would not protect vulnerable people.
In Sept 2005, the Premier of Ontario publically announced there would
be no religious laws used in arbitration and that one law will be applied
to all citizens and that is Ontario and Canadian law.
Ontario introduced Bill 27 (Fall 2005) which received royal assent in
March 06. Law amends a number of other legislations and the changes
include:

Family arbitration agreement has to be in writing.

Each party must receive independent legal advice before entering an agreement.
The right to appeal cannot be waived.
No one can be committed in advance to arbitration.
The agreement has to consider the best interests of the children.
There is to be regulation for family law arbitrators and they must undergo training.
Arbitrators must keep records and submit reports to the Attorney General.
Funds are to be provided for public education and outreach.
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Arbitration Act for Family Matters

Issues and Concerns:
1.Once the process of arbitration starts, the person cannot withdraw from the
process.
2. The arbitrator can be anyone, and does not require any training, legal or
otherwise.
3. The arbitration agreement [award] is legally binding and can only be
overturned via a court challenge.
4.Past experiences have demonstrated that the courts tend to defer to the
arbitrators decision and rarely have any cases been overturned.
5. The costs - financial, time and emotional - of a court challenge are enormous
and few can proceed to this step.
6. The problematic section which stated that other laws could be applied was
specifically related to a commercial dispute between Ontario and an American
State.
7. Till now, no other province allowed its Arbitration Act to be used in family
matters, for example, Quebec states that families are of great value to
society and therefore cannot be subject to private legal agreements.
8. NDP which revised the Act in 1991, has made a public statement that the
Arbitration Act should not be used in family matters. The Conservatives agree
with the Premiers decision of No Religious Arbitration in family matters.
9.The main objection is that the nature of the private agreement, outside the
civil court system, does not lend itself to having the government intrude in
such agreements.
10.Another concern is that a parallel system of law is introduced in family
matters which deflects from the civil court system which has public scrutiny.
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Family Law Act

1. In the last 30 years, this law has undergone major
changes, from having elements of Judeo-Christian
values, to a law reflecting a human rights paradigm,
with values of equality and shared responsibility of both
parents.
2. It is specific for the family with a preamble of values.
3. The Act is open to public scrutiny and can be revised
via a democratic process.
4. It is flexible and can accommodate individual
preferences.
5. CCMW and other organizations are asking that the
government review the Act as it is about 15 years old
and all legislation should have a review process. There
are some issues which have arisen in the last few years
and it is important for a review.
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Muslim Laws in Canada

Canadian Muslim communities are relatively new and diverse.
Fragmentation into many groups with different backgrounds
and practices precludes the development of a generally
recognized set of laws to which everyone can refer.
Fluid situation in which a very wide range of views about
Islam and its laws is being articulated and debated.
Relying on Muslim laws may be more perilous in Canada than
in most Muslim countries.
In Muslim countries, there are defined laws laid down by
governments, and it is therefore possible to have a good idea
of what rules will be applied to a particular case. In Canada,
however, one may be faced with unfamiliar standards and
rules.
If Muslim laws are to be used, important to know about the
kind of law to be applied - reformed law or the traditional law
of one school or another.
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Muslim Laws in Canada Education and

Awareness
With this in mind, CCMW has continued efforts to strength education and
to build awareness among Muslims, non-Muslims, Community
Leaders, Service Providers and others:
Research and Publications on Muslim and Canadian Family Law:
Muslim & Canadian Family Laws: A Comparative Primer (Oct 2006)
A Series of Six Booklets: Domestic Contracts, Marriage, Divorce, Custody and Child
Support, Family Property and Spousal Support, and, Inheritance

Information Sessions for Social Service Providers, the Legal

Community and the general population on Muslim and Canadian
Family Laws as they pertain to the same subjects mentioned.
Family Law Education for Women (FLEW) on-line in 11 different
languages, Plain language legal information on womens rights under
Ontario family law re: Alternative Dispute Resolution and Family Law ;
Child Protection and Family Law ; Child Support;
Criminal and Family Law ; Child Custody and Access ;
Domestic Contracts ; Family Law Arbitration ; Family Law Issues for
Immigrant, Refugee and Non-Status Women ; Finding Help with your
Family Law Problem ; How Property is Divided in Family Law ; Marriage
and Divorce ; Spousal Support ; hardcopies could also be ordered.
Marriage Contract orientation and training to Muslim community in
Spring.
CCMW Website: www.ccmw.com
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Conclusion
What questions do you have?

Thank-you!
Contact:
CCMW: [email protected]
Fauzya Talib: [email protected]
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