Irreconcilable Differences: Family Alternative Dispute Resolution for Canadian Muslims

Date of Award

Fall 2021

Publication Type

Thesis

Keywords

Family alternative dispute resolution

Supervisor

J. Cappucci

Supervisor

J. Noronha

Rights

info:eu-repo/semantics/openAccess

Abstract

Muslim families seeking to resolve private disputes in accordance with their religious values and in compliance with Canadian law face multifaceted access to justice issues. They are burdened with duplicative responsibilities trying to simultaneously meet their obligations towards religious and secular legal systems. Islamic law urges Muslim minorities to obey the laws of the land in a non-Muslim state; however, it also urges them to facilitate dispute-resolution mechanisms to reconcile governing law and religious practices.

Islamic marriage and divorce laws do not always align with federal and provincial family legislation. Unlike Canadian law, Islamic divorce proceedings requires the husband the intervention of a Muslim judge. They also prescribe substantive obligations and rights for divorcees comparable to the corollary relief provided by provincial family law statutes. The absence of religious quasi-judicial dispute resolution mechanisms pose barriers to Muslims: (1) obtaining a religious divorce or annulment, and (2) acquiring subsequent relief, such as financial settlements and custody, in accordance with religious beliefs. In addition to the doctrinal analyses of secular and religious theories of adjudication and alternative dispute resolution (ADR), this thesis employs a qualitative method narrating the experiences of 20 Canadian imams with family dispute resolution. To respond to these overlapping barriers, the thesis analyzes forms of Islamic legal authority to: (1) grant religious divorce or annulment, and (2) mediate or arbitrate corollary relief applying religious laws in domestic contracts and arbitral awards.

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