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Reproduced from Lawyers Weekly, Winter 2007 

By Julie Macfarlane

The media debate last Fall over the recognition of Shari'a (Islamic) family arbitration by the Ontario Arbitration Act has had a number of consequences that have some signifi ca nce for the practice of family law in the province. First, it has created the widespread misapprehension – among many members of Ontario 's Muslim communities as well as the wider public – that the Premier “banned” the use of Shari'a processes and procedures. Of course, the Premier has no such powers and the use of Islamic divorce processes continues informally in Ontario 's mosques and Muslim community centres.

Second, the often hysteri ca l tone of the Fall debate has reinforced the alienation felt by some members of our Muslim communities. The impact of 9/11 continues to be experienced by law-abiding Muslims who may feel singled out for hostility and suspicion.. The problem is compounded by the fact that many Westerners associate Shari'a law with criminal law regimes where brutal physi ca l punishments are applied. These factors combined to make the use of the word “Shari'a” in this debate over family dispute resolution almost toxic, even among some Muslims who prefer to use the more accurate expression “Islamic family law”.

Third, Imams and other leaders within the Muslim communities have continued to perform Islamic divorces, but with none of the public scrutiny or oversight that Marion Boyd proposed in her December 2004 Report. Muslims still ask their Imams to perform marriage ceremonies, marriage counseling where they face difficulties and sometimes to conduct divorce hearings, using arbitration or mediation. In this way this problem apparent last Fall – that we know almost nothing about the actual use being made of Islamic family law in Muslim communities, what happens in these processes, how often they occur, what decisions they reach (and whether they discriminate against women, as many fear) or why Muslims chose to use them (and whether such a choice is truly “voluntary” for a Muslim woman) – is further exacerbated.

A three year grant from the Social Science and Humanities Research Council of Canada will, I hope, help to answer some of these questions. With the co-operation of Muslim communities in the Greater Toronto Area. I shall be interviewing participants in Islamic family law processes (with the assistance of interpreters) in order to better understand the relationship between these processes and their faith, culture and values. Rather than evaluating whether Shari'a is “good” or “bad” (inevitably from a culturally relativist perspective), my aim is to enlarge our knowledge and understanding of images of justice that emerge in the process of Islamic family dispute resolution.

As I began initial discussions with Imams and individual arbitrators in August, I learned several signifi ca nt things which were not talked about in last Fall's debate, and which are important for family lawyers to know. One is that many of the couples who seek a Muslim divorce are not married civilly in Canada - so ca nnot go to the court for a divorce. Another is that there have been no appeals to the Family Court from decisions issued by Islamic arbitrators. Of course this fact begs further questions – whether there are cultural pressures against appealing the decision of a religious leader, or a lack of knowledge about the right to appeal that existed under the previous legislation. I have also learned that some of the individuals who go their Imams for divorce have already begun or even completed a civil divorce. These individuals have become discouraged by the legal process and its cost, and return to a more traditional dispute resolution forum for resolution of outstanding matters. Others have obtained a civil divorce but now wish for an Islamic divorce, in order that they may feel that they have met their religious duties.

I am also learning that, just like any other process for resolving family disputes, there is a great diversity in the approach taken and format adopted in different mosques and Islamic centres. One prominent member of the Toronto Muslim community told me “Every Muslim in Canada has their own Shari'a”. Some Imams are clearly more traditional in their approach than others. Some are willing to wade into gender conflict – others are not and advise the parties in such circumstances to see a family lawyer. Most interesting, perhaps, is the frequent assertion that Imams are able via a progressive interpretation of Shari'a to give women rights that they have histori ca lly not enjoyed, and are more fitting to modern times – for example the right (on given grounds) to divorce their husband and not just to be divorced by him, rights to maintenance and support beyond the traditional “iddah” or three month period, and custody determinations in “the best interests of the child.”.

Family lawyers understand very well that practice is often quite different from, and generally far more diverse than, theory. This research project is an effort to enhance our knowledge and understanding of family dispute resolution processes used by Canada 's Muslim communities from the perspective of practice. For more information on this project, or if you are interested in participating, please contact me at juliem@uwindsor.ca .