Like most secular countries Canada has certain civil requirements that have to be met for either a marriage or a divorce to be approved. Laws and acts have been implemented that guarantee visitation, custody, alimony, and child support. In the majority of cases the system works in a fair and impartial manner.
Each provincial government is free to tinker with the laws, within the framework set forth by the federal government. They can set the standards concerning who can perform marriages, what the fees for the services cost, and what exactly constitutes a wedding ceremony.
They can also dictate how divorce court orders are enforced. If a parent is negligent in fulfilling his or her requirements under the terms of the divorce agreement, it is the province that imposes penalties. Lack of child support, failure to comply with custody, and visitation orders, and alimony are all under the jurisdiction of provincial law.
Canada is a pluralistic society, with many people following many religions. Most, if not all, religions have their own rules concerning marriage and divorce. In the case of marriages the routine is usually straightforward. As long as the person performing the marriage is a member of a clergy recognised by the provincial government as a legitimate faith they are legally able to carry out a marriage ceremony.
Where things start to become more complex is when one party wishes to dissolve the union. Different religions have different laws governing the dissolution of a marriage; some of which contravene federal and provincial law especially concerning the rights of women and children.
In North America we are accustomed to women (and men) being entitled to certain rights when a marriage dissolves. If one partner has been supported by the other, they are entitled to a continuation of that support. If the partner has been abandoned or has removed the children from an unsuitable environment they are entitled to support payments to assist in their upbringing.
But what is true in secular law may not hold true in religious law. Which explains the furor that has greeted the decision of Ontario’s government to give arbitration status to the traditional Muslim code of law: Sharia Although Ontario already gives such standing to Jewish and Christian law, the decision to give equal standing to Muslims has been greeted with dissent.
Demonstrators in countries all over the world gathered in front of Canadian consulates to protest. In Ontario’s capital city, Toronto, 300 people gathered to listen to speakers compare Liberal premier Dalton McGuinty to the Taliban and other reactionary Islamic groups. Among the protesters were women who have fled from societies where Sharia Law is the only code followed, and they fear for the loss of their newfound freedoms.
Pointing to clauses that allow for the stoning of a woman found guilty of adultery, or the marriage of girls as young as eight years old, they claim there is nothing positive about taking this step. Even the promise that Ontario secular law will have the final say in all matters does nothing to reassure them.
They point to the fact that so many Muslim women are new immigrants who do not speak the language and have little understanding of their rights. It is feared this will lead them to comply with what ever rulings are handed out by the religious council deciding their case, no matter how much they suffer for it.
They also point to how the Orthodox Jewish system has been used against women in the past, to prevent them from getting a civil divorce. Under Jewish law a woman must be granted a religious divorce or she will not be able to remarry and any future children will be considered illegitimate. Men have coerced women into not applying for alimony and child support by threatening not to give them a religious divorce.
To a devoutly religious person these sorts of threats are very powerful. If carried out they will make her an outcast in her own community. It’s all very well for us to say, they’d be better off leaving that behind, but that’s imposing our values on them.
Catholics, who wish to continue on in their belief, but wish to seek an end to their marriage and be free to remarry and have children, must seek an annulment of the original marriage. Otherwise, they will be considered still married in the eyes of their God.
We who are secular may not understand decisions that are based around faith, but we need to respect other people’s rights to believe as they wish. The conundrum becomes how to do this while simultaneously ensuring that individual rights that are guaranteed by our secular laws are respected.
The government can not very well say that they will only allow some religious groups rights while denying others the same privileges. They either grant arbitration rights to all, or rescind those that are already in place. Ironically the granting of arbitration rights to religious bodies allows the government to exercise control over their decisions, and will offer women more protection from religious law than when these tribunals act in an unofficial capacity.
In an article in today’s “Globe and Mail” Susan Drummond, professor of family and comparative law at Osgoode Hall Law School at Canada’s York University, explains how Canadian law has created safeguards for women who want to remain faithful to their religions, and still receive fair treatment.
In order for the dissolution of a marriage to be legal in Canada it has to be agreed to by a civil court. If either spouse has placed restraints on the other prohibitive to a religious remarriage, the affected party is allowed to request the judge preventing the other from litigating on any issue pertaining to the divorce.
Let’s say that a husband is refusing to grant a religious divorce to his wife, thus prohibiting her from remarrying, unless she surrenders her rights to alimony and child support. She can turn around and sue him for astronomical amounts of the same, and he will not be able to contest it as long as he prevents her from obtaining a religious remarriage.
Of course, the problem still remains for those women who are ignorant of Canadian secular law. If they don’t know the option exists for them, they aren’t going to use it. For this system to work there have to be safeguards in effect that will ensure all women are aware of their rights when they enter family court.
A simple way of doing this is by making all religious divorce proceedings file complete transcripts of their cases with the family court that will be dealing with the secular trial. This will give the judge an opportunity to ensure that there have been no contraventions of secular law.
As it stands right now there is no regulation of Sharia Law in terms of divorce, yet it is currently in use in many mosques throughout Ontario. This means that there are an unknown number of women being treated in exactly the manner the protesters fear will come about if this new legislation is enacted.
Unfortunately people seem to be reacting in a knee jerk fashion to something, not understanding the true nature of what is being attempted. This act will ensure that all faith-based decisions will have to adhere to the letter of secular law. It is not going to allow anybody the right to turn back the clock on women’s rights, if anything it will take steps to ensure even more protection.
We live in a secular country, which recognises the diversity of beliefs amongst its peoples. There is nothing wrong with allowing people to base their lives around their faith, if they so desire, as long as secular law is strictly adhered to as well. We need to ask, if there is no fuss about Catholics and Jews being allowed that right, why the turmoil over Muslims?
If we are as pluralistic a society as we say we are, shouldn’t we apply the same standards to everybody?