The Debate over Faith-Based Arbitration: Does it Adequately Protect Women?

Prof. Audrey Macklin

From the Spring/Summer 2006 issue of Nexus.

The use of religious principles in arbitrations of family law matters illustrates the fundamental role of family law in delineating who is inside and who is outside the community according to the community's own norms. Being able to police these boundaries is a basic aspect of cultural self-determination for all communities. This issue presents the basic problem of balancing the rights of minority groups against the rights of individuals as they may be exercised within a minority. In this sense it speaks to the basic tension inherent in multiculturalism.

Marion Boyd, Dispute Resolution in Family Law: Protecting Choice, Promoting Inclusion, December 2004

The controversy over the establishment of Islamic family law arbitration in Ontario, (the so-called 'Shari'a courts') has receded into yesterday's news. The government of Ontario resolved the issue in the autumn of 2005 by introducing legislation confining judicial recognition of family law arbitral awards to those decided according to the law of Ontario or another Canadian jurisdiction, and bringing family arbitrations within the purview of the Family Law Act. Rather than rehearse the debate as it played out in the public discourse, I wish to refract it through another lens that casts the gender dimension in a somewhat different light. My central claim is that faith-based arbitration and its normative driver, multiculturalism, were already nested within a regime of privatised justice that largely insulated financial, custodial and property division from public scrutiny and judicial re-apportionment. I argue that the potential harms arising from the application of Muslim law are not unique to Muslim law or to arbitration, but instead illustrate how a regime of private justice can exacerbate women's vulnerability. Addressing and mitigating the hazards posed to gender equality requires attention to the interface between public justice and a fuller range of private justice options, and not only faith-based arbitration.

 

We have heard loud and clear from those who are seeking greater protections for women. We must constantly move forward to eradicate discrimination, protect the vulnerable, and promote equality. As the Premier re-iterated this week, we will ensure that women's rights are fully protected. We are guided by the values and the rights enshrined in our Charter of Rights and Freedoms. We will ensure that the law of the land in Ontario is not compromised, that there will be no binding family arbitration in Ontario that uses a set of rules or laws that discriminate against women1.

Ontario Attorney General
Michael Bryant,
September 2005

Almost from the outset, the debate over Islamic arbitration crystallized into what could - with mild exaggeration - be characterized as opposing answers to the late Susan Moller Okin's provocative question "Is Multiculturalism Bad for Women?" The casual observer could be forgiven for thinking that the Islamic arbitration initiative represented a novel and unique attempt to erect a separate family justice system for Muslims in Canada. This was simply untrue.
 
Family law in Ontario (as in many other provinces) creates a default regime for support, custody and the division of family assets upon relationship breakdown. However, parties can effectively avoid litigation and opt out of the default provisions by utilizing various forms of alternative dispute resolution (arbitration, mediation, negotiation). In other words, parties can choose their forum and their rules. The parties might choose to be governed by the default regime in Ontario, the laws of another province or country, religious law, or the law of the market, whose central norm dictates that whoever has more bargaining power, wins.

 

The decision by the Ontario government to withhold enforceability to faith-based arbitration does not mean that faith-based arbitration is illegal or that it will not happen. Moreover, the amended law still permits enforcement of domestic contracts that are the product of faith-based mediation or negotiation conducted on the advice of religious authorities. The most likely immediate impact of the government's resolution of the issue is that faith-based arbitration will either go 'underground' or be re-channelled into mediation or negotiation.

With respect to the latter consequence, it is important to acknowledge that as a practical matter, the outcomes of mediated or negotiated settlements are largely insulated from judicial scrutiny (except regarding child support) unless and until a dissatisfied party challenges the settlement in court. Even then, the grounds for judicial intervention are narrow, as revealed by the British Columbia case of Hartshorne v. Hartshorne2.

A majority of the Supreme Court of Canada, reversing two lower court judgments, upheld a pre-nuptial agreement presented by the husband on the eve of the wedding and signed by his future wife on their wedding day. The animating principle of the pre-nuptial agreement was the wholly secular norm of formal equality: the property allocation upon divorce should "leave with each party that which he or she had before the marriage." (para. 65). As is often the case, this principle operated to the detriment of the woman3. Independent legal counsel advised the woman that the agreement was grossly unfair in comparison to her default entitlements under the statutory family law regime in her province. Under the British Columbia Family Relations Act, Mrs. Hartshorne would have benefited from a presumption that she was entitled to a 50% share of the matrimonial home and 50% of family assets acquired after the marriage. By the time the couple separated nine years later, Mrs. Hartshorne's entitlement under the pre-nuptial agreement consisted of approximately 20% of the family assets4.

The Supreme Court of Canada allowed Mr. Hartshorne's appeal and rejected the argument that the prenuptial agreement was unfair, employing a test developed in an earlier case for assessing whether a domestic contract was unfair at the time of distribution. In brief, the Court signalled two indicia of unfairness: lack of genuine consent at the time of contract formation, or a significant disparity between the expectations of the parties about their future circumstances and what actually happened. On the latter point, the majority of the Supreme Court of Canada found that life unfolded roughly the way the parties expected: Mr. Hartshorne continued his law practice and Mrs. Hartshorne stayed home and raised their two children, the second of whom was born after the marriage and had special needs

Although the majority of the Supreme Court overruled both the trial and appellate courts of British Columbia, and despite the dissenting opinion of a minority on the Supreme Court, all judges agreed on the point that Mrs. Hartshorne was not coerced or under duress when she signed the pre-nuptial agreement on her wedding day. Here is what the dissent said about power relations between the couple:

There are indications that the respondent was in a vulnerable position in negotiation - [though] not enough for the agreement to be unconscionable. … The respondent had already been out of the workforce and dependent on the appellant for almost two years and had only ever worked as a lawyer (and before that, an articling student) in the appellant's firm. The agreement was concluded under pressure with the wedding fast approaching. The respondent sought changes to the agreement before execution but was unable to persuade the appellant to agree, except with respect to minor changes, such as the insertion of a clause to the effect that her signature was not voluntary and was at his insistence. These circumstances illustrate the appellant's position of power within the relationship, as well as the respondent's correlative dependence. That she remained at home for the rest of the marriage relationship to take care of the couple's children further illustrates the power dynamics at play. (para. 90).

Importantly, this inequality of bargaining power described by the dissent did not vitiate Mrs. Hartshorne's consent. Indeed, the majority paints the Agreement with the patina of mutuality by describing it as reflective of the "intention of the parties," and admonishes that "if the Respondent truly believed that the Agreement was unacceptable at that time, she should not have signed it." (para. 65). In the result, the Supreme Court of Canada endorses a stark, zero-sum approach to autonomy and consent: If the circumstances do not amount to "duress, coercion or undue influence" in law (which all levels of court and both majority and dissent on the Supreme Court agree they did not), then the context is irrelevant to assessing the fairness of the Agreement, and the irrebuttable presumption is that both parties acted with equal autonomy. Because the Court determined that events in their life together as husband and wife unfolded approximately as anticipated by the pre-nuptial agreement, and because Mrs. Hartshorne was still entitled to spousal and child support, the majority of the Supreme Court of Canada declined to find the agreement unfair.

It is not obvious why negotiation based on the secular norm of rational exploitation of individual bargaining power should be treated as manifestly more consensual or autonomous than negotiation against a background of shared religious principles. In terms of assessing substantive outcomes, consider that in Hartshorne, the Supreme Court upheld a pre-nuptial agreement that led to an 80/20 apportionment of property rather than the default 50/50 split. If a Muslim couple, after employing the services of a religious mediator, enter into an agreement that sanctions an 80/20 division of family assets in favour of the husband, would or should a court (or the court of public opinion) view this any differently?

The particulars of Muslim women's vulnerabilities may diverge from those of Mrs. Hartshorne (a middle-class, secular, legally trained Canadian citizen). Indeed, my point here is not to argue that the outcome in Hartshorne was wrong. Nevertheless, if one assumes that the alternatives to Islamic family law arbitration will necessarily advance the goals of gender equality in the face of structural inequalities of bargaining power, decisions like Hartshorne should sound a cautionary note.

Ultimately, my contention is that framing the question about Islamic arbitration as "Is multiculturalism bad for women?" avoids the equally salient question "Is privatisation bad for women?" I do not believe that this latter question permits of a simple yes or no answer; rather, it invites us to identify the hazards of private justice. In terms of policy, it also encourages us to think creatively about using judicial oversight as a means of bringing institutions of public and private justice into a productive dialogue that will ultimately serve the interests of gender equality, multiculturalism, and autonomy better than the current regime.


1 Statement by Attorney General on Arbitration Act, 1991.
www.attorneygeneral.jus.gov.on.ca/english/news/2005/20050908-arb1991.asp, 8 September 2005, (accessed May 16, 2006).
2 [2004] 1 SCR 550.
3 The agreement gave Mrs. Hartshorne a 3% interest in the matrimonial home per year of marriage, up to a maximum of 49%. (Hartshorne, para. 6)
4 The monetary value of her entitlement was approximately $280,000.