Family Arbitration by Religious Principles
Family award by religious principles in Ontario: void
Since 30 April 2007 an Ontario family award made under religious principles has no legal effect at all, while the same tribunal’s award on money is enforced. The ban did not end the practice. It removed supervision, the written award, independent advice and appeal. The bill replaces the ban with recognition under the control of the court.
Grounds
Ontario strips every family award made under religious principles of legal effect.
Arbitration Act, 1991, s. 2.2, enacted by the Family Statute Law Amendment Act, 2006 (Bill 27, royal assent 23 February 2006), in force 30 April 2007: a family arbitration conducted other than exclusively under the law of Ontario or another Canadian jurisdiction has no legal effect.
Federal law and the Supreme Court enforce the same religious obligation that Ontario voids.
Divorce Act, s. 21.1 (2) and (3): barriers to remarriage “within the deponent’s religion”, with the power to strike the pleadings of the spouse who keeps the barrier. Bruker v. Marcovitz, 2007 SCC 54: a religious undertaking enforced as a contract, with damages.
Ontario trusts a religious officiant to create a marriage and denies the religious body any part in its division.
Marriage Act, s. 20.1 (1): registration of a person “ordained or appointed according to the rites and usages of the religious body to which the person belongs”.
The award of a religious tribunal on money is enforced. Its award on the support of a child is void.
Section 2.2 reaches family arbitration only; commercial, estate and other arbitration under the Arbitration Act, 1991 is untouched.
The ban voided earlier awards and kept earlier agreements of one kind only.
The Family Statute Law Amendment Act, 2006 preserves earlier paternity agreements and no earlier family award. Testimony before the Standing Committee on General Government, 17 January 2006: a spousal support award made years before “is now void”.
The review Ontario commissioned found no bar in the Charter and warned that a ban drives the practice underground.
Dispute Resolution in Family Law: Protecting Choice, Promoting Inclusion, 20 December 2004: “the Review did not conclude that the Charter prohibits the use of arbitration for resolving disputes about family law and inheritance”; a ban “would drive the practice of religious arbitration underground, leaving vulnerable women and children with no recourse under Ontario law”.
Recognition only on conditions no party can waive, and only after the court confirms the award.
Arbitration Act, 1991: terms that cannot be waived; no arbitration where there is violence; written agreement with independent legal advice; written award and record; confirmation by the court; a register and annual report; neutrality among faiths. Family Law Act, ss. 33 (4), 51 and 55 (2): the protections of domestic contracts extended to these agreements. Review after five years. Charter, ss. 2 (a) and 27.