There are significant differences between some cultural or religious family law and the civil family laws in Canada. It is important for women to know about these differences before they make any decisions about how they want to organize their intimate relationships or how they want to resolve the issues that arise when those relationships end.
These differences are of critical importance especially to women whose partners are abusive, because often the abuser will hold the cultural or religious law up as the one that must be followed, even when it does not respect the equality rights of women or follow the laws of Canada.
1) Any women whose partner is pressuring her to use religious or cultural laws to establish or end their relationship needs to get legal advice from a lawyer who understands her religion or culture but who is also well versed in federal and provincial family law, so they can provide advice that will protect the woman’s interests under the civil law of Ontario and Canada.
2) Many fundamentalist religions do not respect the equality of women, so obligations under marriage and requirements after separation may not reflect the wife’s rights as understood under federal and provincial civil laws. Canadian laws, including family laws, must uphold the equality provisions set out in the Canadian Charter of Rights and Freedoms.
3) Religious and cultural family laws are private and not open to public review or accountable to the public. Disagreements within those laws cannot usually be taken to civil courts. By contrast, despite the many problems with provincial and federal family laws, they are a matter of public record, are reviewed and revised regularly by government, and outcomes can be appealed.
4) In Ontario, anyone engaging in arbitration of a family law dispute must follow provincial and federal law. On Ontario, the most important law in this respect is the Arbitration Act, which sets out clear rules for how family law arbitrations must be conducted. Even if the arbitrator is a religious leader, they must meet the requirements of Ontario’s laws and must use only Ontario family laws (Family Law Act, Children’s Law Reform Act) and the federal Divorce Act in their arbitration. If they do not, the outcome of the arbitration will have no legal authority.
5) Religious and cultural family law have power and authority only within their own religion or culture. People who use religious or cultural laws within their family cannot turn to Canadian or Ontario civil law to assist if they are unhappy with the outcome.
6) Some religions do not permit marriage between two people of the same sex, but same-sex marriage has been legal under Canadian civil law since 2005.
7) Some religions do not set a minimum age for marriage (for example, the Fundamentalist Church of Jesus Christ of Latter-Day Saints (FLDS) permits marriage of girls as young as 12). Provincial and territorial laws across Canada set a minimum age at which people can marry. In Ontario, both people must be at least 18 years old; people between 16 and 18 can marry if the parents of both provide written consent.
8) Some religious groups (most notably, some Muslims and the FLDS) permit polygamy, in which one man can have multiple wives. Bigamy and polygamy are both criminal offences in Canada, although they are seldom prosecuted. Regardless of the criminal consequences of entering into a polygamous marriage in Canada, any woman who does so may not be able to claim such rights as an equal division of family property or spousal support if that marriage ends. Her marriage would not be recognized under Canadian law, so she would not be able to get a civil divorce if the marriage came to an end. Nonetheless, within her religion or culture, the marriage would be seen as valid.
9) Some religions require the people to obtain a religious divorce if they wish to remarry within their religion. This divorce is completely separate from a civil divorce, which the people can obtain by following Canada’s Divorce Act. Some abusive men refuse to grant their former wife a religious divorce as a way to maintain power and control over her. This means she cannot have a religious marriage and, if she marries someone in a civil ceremony, her children may be considered illegitimate within her religious community. (For example, see: “What is a Jewish divorce?“)
10) In some religions, only the husband can initiate a termination to the marriage; but under Canada’s Divorce Act, either the husband or wife can move to end the marriage.
11) Muslim marriages often include a form of domestic contract called a mahr, in which the husband promises to provide his wife with something (money, property, jewelry) if the marriage comes to an end. Even though they are a form of religious contract, mahrs are now generally upheld by Canadian courts, as long as they are written in accordance with the provincial/territorial requirements for a domestic contract. In Ontario, a domestic contract has to be in writing, signed by both people and witnessed. The two people must have provided full financial disclosure to one another, and there cannot have been any coercion or duress to force ether person to sign the contract. While not required by law, both people should seek independent legal advice before entering into a domestic contract, whether that is a cohabitation agreement, a marriage contract or a separation agreement.
12) Only provincial family laws ensure that the value of property acquired during a marriage is shared equally between the two spouses if the marriage comes to an end. In other words, if a woman were to enter into a religious or cultural marriage that was not recognized under Canadian family laws, she might not be able to make a claim for an equal share of the value of the family property.
13) Some fundamentalist religions give the father presumptive rights to guardianship of the children, while granting the mother the right to care for the children when they are young. For example, in some Muslim communities, the mother has the right to the care of daughters until they are 9 years old and sons until they are 7. Canadian family laws deem both parents to have equal custodial rights, with decisions about care of and decision making about children made using the best interests of the child test. Ontario’s Children’s Law Reform Act sets this test out at section 24(2).
14) If a woman is married to a man from a country that follows fundamentalist religious laws, and if he takes the children to that country, she is likely to have difficulty bringing them back to Canada without his consent, regardless of any custody order in Canada. Few of those countries have signed the Hague Convention, which assists in finding and returning children when they have been improperly removed from the country where they were habitually resident, and many of them have laws requiring the father to consent to the children being taken out of the country. (For more information, see: “What can a woman do if she is afraid her ex-husband might take their children out of Canada?“)
As you can see, there are a number of ways a woman with an abusive partner who subscribes to a fundamentalist religion may be vulnerable to manipulation of the legal rights to which she is entitled under Canadian laws. If you are working with a woman in such a situation, it is imperative that you assist her in finding expert legal representation.