11 April 2014

The Status of Religious Family Law Orders in Canada

I've just received an email from a colleague in British Columbia. She writes:
I have recently come across a number of cases in my work that I wanted to get your insight on, if you have the time or interest. ... 
I have been working with a number of Muslim families. ... I have had one situation where a husband ordered the wife and mother to return to Iran, so that the divorce could happen in Iran. In another case, the father went to Iran and obtained a divorce ... and then returned to Canada to register it with the Supreme Court. 
Because I like to figure things out, I did some research and discovered that there is a significant financial and time advantage for Muslim men if they can obtain a divorce in a Muslim country rather than in Canada. It seems that the issues of child support, spousal support, custody, and property division are significantly skewed to favour males in Muslim countries. They only have to register the divorce in Canada, and, under comity, they have effectively stripped away all these rights for Muslim women and children living in Canada. Further, if the Muslim woman obtains a civil divorce in Canada, but not a religious divorce, when she travels back to her country of origin, she can be arrested as an adulteress and, even in 2014, may be subjected to stoning. ...
This does happen every now and then, and although orthodox Islam is just as misogynistic as orthodox Judaism and orthodox Christianity, the orthodoxy is more tangibly problematic in countries like Iran and Libya that have adopted various species of Shari'a law — Islamic law — as the law of the state. This creates a number of alarming problems for women in those countries, as Shari'a law gives husbands a substantial degree of control over their wives and children. Men, for example, are often presumed to be entitled to custody of the children after separation. Men may also direct that their wives and children not leave the country, directions that the state will often enforce.

As a result, there have been times in my practice when I’ve warned certain clients whose relationships seemed to be in trouble against taking that family trip back to their country of origin. Often the real purpose of the trip is as my colleague describes. The federal government maintains a surprisingly useful country report website for people planning on travelling. If you click on the country, then the “Laws & Culture” tab, you can get a good snapshot of the laws of that country. Here’s part of the entry for Iran:
Canadian women married to Iranian nationals who register their marriage with the Iranian authorities automatically become Iranian citizens and are deemed to be Iranian citizens according to Iranian law, even if they travel to Iran on a Canadian passport with an Iranian visa. Iranian immigration authorities often impound Canadian passports, particularly those of women who intend to reside in Iran. Women who are considered to be Iranian by marriage must have their husband's permission to travel and to leave Iran, even if they intend to use their Canadian passport. 
Here's part of the entry for Libya:
Child custody decisions are based on Islamic law. It is extremely difficult for a Canadian woman, even if she is a Muslim, to obtain custody of her children through a court decision, unless she decides to stay in Libya. Regardless of parental marital status, children of Libyan fathers acquire Libyan citizenship at birth, and must enter and leave Libya on Libyan passports. Canadian mothers require their husband’s permission to take their Libyan children outside the country.
Interesting and useful information. Not every country under Shari'a law applies the law with its full rigour; not every country under Shari'a law has adopted all principles of Shari'a law. Check before you travel.

Now although the doctrine of comity is important, it is not a suicide pact. Comity requires respect for the decisions of foreign courts but not blind deference. In general, the courts of Canada will respect foreign orders in family law matters, but that respect is subject to considerations like these:
  1. Was the foreign court required too consider the best interests of children when making an order about their care? 
  2. Did the person against whom the order was made have notice of the hearing? 
  3. Did he or she have the full right to ask and answer? 
  4. Is the order contrary to public policy? 
The first and last points are particularly important. It is generally contrary to public policy, for example, to grant sole custody on the basis of religious principles rather than a consideration of the best interests of the children. For the same reason, Canadian courts rarely enforce the punitive terms of religious marriage agreements.

I think my colleague was right to identify this problem and this concern. In my view, the advice that must be given to women in fragile relationships who are planning a trip to a country governed by Shari'a law is to rethink the trip and consider the potential consequences. However, should the family, or just the husband, go and return with an order, that’s not necessarily the end of it. Women on the receiving end of such orders should be encouraged to make a fresh application for custody or guardianship, child support and spousal support on their return to Canada where the foreign order is unfair or prejudicial to their interests.

I am not a scholar of Islamic law, and welcome comments offering other perspectives.