Shariah Implementation
In Canada

Update on Stage 3 of
The Canadian Society Of Muslims'
Personal/Family Law Campaign

The Government of Ontario has announced that all civil Litigation (with the exception of family law) must go to mediation as a prerequisite to a trial by court. (The Toronto Star, Feb. 4 & 5, 1997) Considering the favourable climate for the Alternate Dispute Resolution (A.D.R.), it seems the courts might be pleased to allow the family law litigants to air their dirty linen in a private mediative/arbitrative setting rather than through open court. However, the parties, by mutual consent, must seek the court's permission to do this. The Canadian Society of Muslims takes note of these developments with a sense of pride that our efforts of Stage 3 of our campaign which was commenced a long time ago (See Executive Summary, Newsletter 1995 issue for background information) are coming to fruition, albeit in a limited way. Reproduced below is the Toronto Star article by Michael Mcateer which provides a background for the following excerpt from the Ontario Lawyers Gazette (Jan/feb 1997) concerning the New ADR legislation. This makes it necessary for the Muslim community to make the most of these new developments. Please see "Conclusion" appearing in the last part of this News Bulletin. 

Muslims seek jurisdiction over family law

by Michael McAteer
Toronto Star, 30 May 1991
 

Canadian Muslims should have their own arbitration boards to allow them to govern themselves according to Islamic law on such issues as marriage and divorce, a national Muslim group says. 

The Islamic arbitration boards would also deal with family problems such as separation, inheritance, child support and maintenance. 

The 160-page report released yesterday by the Canadian Society of Muslims says official recognition by municipal, provincial and federal governments of Islamic arbitration boards would only enhance Canada's cultural richness. 

The report also calls for changes in provincial laws so that Muslims can redirect their educational tax dollars to separate Islamic schools with their own curricula. 

The report says Muslims are free to start their own private educational system but they are not permitted access to their public education taxes to set up their own religious schools. 

Clearly, the report says, this points out that the religious freedom of a great many Canadians, Muslims included, has been "seriously circumscribed and inhibited." 

Other religious groups such as the Associated Hebrew Schools and evangelical groups also seek authority to redirect publicly paid education tax dollars into religious schools. But Roman Catholics are the only religious group in Ontario that now do so. 

Society president Syed Mumtaz Ali told The Star that Islamic arbitration boards would have jurisdiction only over those Muslims who register themselves as wanting to be governed by Muslim law. 

He said there would be built-in safeguards to ensure there was no conflict with secular law. 

Disputes would first go to a secular court that would turn them over to the Islamic arbitration boards for a ruling, and the ruling would then be subject to the approval of a secular court, he said. 

Permitting alternative methods of resolving disputes in matters of family-personal law would provide Muslims with a "way of doing things that reflects fundamental aspects of their sense of justice," the report says. 

The Muslim group says the report, called Oh! Canada! Whose Land, Whose Dream?, was written because the Society believes "many of the political practices, institutions and processes which exist in Canada fall short of the promise and potential that democratic theory has for meeting the social and political needs of a truly multicultural society." [1]

Mere tinkering with the Canadian Constitution will not serve the best interest of Canada or Canadians, the report says. Radical reconstruction is necessary but "such reconstruction must be built upon a thoroughly democratic foundation." 

The report, offered as a "constructive contribution to the debate concerning constitutional issues facing Canada," deals with such subjects as democracy, sovereignty and participation in a multicultural Canada. 

Although Canada prides itself on being a nation in which individuals are free to commit themselves to a religion of their choice without interference from the government, in practice "this is not always the case." 

The report notes that following Divine law is at the heart of what being a Muslim means. That law allows a Muslim to have four wives. 

But Ali, a retired lawyer, told The Star there is no push to amend Canadian law forbidding polygamy. 

Like other Muslims, when I came to Canada as an immigrant and accepted citizenship, I acknowledged that I would be willing to be governed by the fundamental principles of this country," he said. "The practice of monogamy is a fundamental concept of this society." 

Province announces mandatory mediation process

Excerpt from "Ontario Lawyers Gazette" Jan/Feb, 1997.

Mandatory referral to mediation has now been in place in Ottawa for almost a year, and has also been implemented in Toronto since the beginning of June/97. It will be phased in across the province over the next four years. 

The following summary of the announcement of the Ministry of the Attorney General highlights some of the key points: 

1 Civil (non-family) cases will be referred to a three-hour mandatory mediation session. 

2 Mediation must take place after filing of the first statement of defence. 

3 With the approval of the court, litigants can choose a mediator who is not on the roster. 

4 Mediators will be from the private sector. 

5 Mediators will not have to be lawyers to be on the roster. 

6 Mandatory mediation sessions will be three hours long. Sessions can last longer than three hours if all parties agree.

7 If a settlement cannot be reached during mediation, the case continues through the litigation process. 

8 Mediators on the roster will be required to have appropriate training and experience and must be familiar with the civil dispute process. 

9 Mediations are private and confidential between the parties. 

Conclusion

Under these provisions, Muslim litigants (in a Family Law case) will be able to choose non-lawyers from the (private) Muslim community who are well-versed in Muslim Law of marriage, divorce, custody, division of matrimonial property, etc. 

Accordingly, the Canadian Society of Muslims, through its sister organisation, the Muslim Marriage Mediation and Arbitration Service, alhamdu li-Allah, is now offering a needed service to the residents of Ontario.

[Please see this PDF file from the government which proves and discusses more on this. March 12, 2001]

As-Salaamu Alaikum

Syed Mumtaz Ali

[1]To read a nice article entitled 'The Reconstruction of the Constitution and the Case for Muslim Personal Law in Canada, first published in the Journal Institute of Muslim Minority Affairs, Vol. xiii, January 1992, Number 1, by Syed Mumtaz Ali and Anab Whitehouse, click here. For a concise and comprehensive summation of this and other such aspects of the Canadian Society of Muslim's arguments contained in O Canada! Whose Land, Whose Dream? Report for Muslim Personal Law