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.

Gotta Get a Get: Supreme Court Comments on Enforceability of Religious Marriage Contracts and Orders

Justice Nathan Smith of the Supreme Court of British Columbia has issued his judgment in Stav v. Stav, a case commenting on the enforceability of the obligations set out in a religious marriage agreement.

Background

The background to this decision is important, as the family involved has been engaged in litigation going back quite a few years. The parties were married in Israel in 1995, having signed a ketubah, a Jewish prenuptial agreement. Among other things, the ketubah contained a requirement that the husband pay $139,000 to the wife in the event of their divorce.

The parties eventually separated and were divorced in August 2011, following a trial. Among other things, the trial order allowed the wife to move back to Israel with the children.

The husband successfully appealed the trial order, and in April 2012 an order was made requiring the wife to return the children to British Columbia . The husband was awarded his costs of the trial and the appeal, amounting to some $70,000.

The wife neither paid the husband's costs nor returned the children to BC. The husband began a court proceeding in Israel to enforce the appeal order, which lead to the mother and children returning to BC in November 2012. At the same time, the wife commenced a proceedings in a rabbinical court, seeking a get, a Jewish religious divorce.

The husband consented to the get in October 2013. However, in May 2013 the rabbinical court awarded the wife $96,000 based on the payment required in the ketubah.

In June 2103, the wife started an action in British Columbia to enforce the judgment of the rabbinical court, and use the judgment to offset her obligation to pay the husband's costs of the trial and appeal.

The wife's action was heard by summary trial in January 2014, and it this decision which is the subject of this post.

Decision

The first hurdle with the court had to address was the status of the rabbinical order in Canada. Orders of foreign courts, religious or secular, have no automatic standing in Canada unless there is a reciprocity agreement between Canada and the other country. Support orders, for example, are the subject of reciprocal agreements between Canada, the United Kingdom, Australia, the United States and a number of other countries that allow our orders to filed in their courts for enforcement and vice versa.

If no reciprocity agreement applies, the court must determine whether it ought to recognize (and therefore enforce) the foreign order. Here is how Justice Smith summarized the law on this point, citing a 2003 case from the Supreme Court of Canada, Beals v. Saldanha (important bits in bold):

"[13] In considering whether to recognize a foreign judgment, the Court must first determine if the foreign court has a real and substantial connection to the action or the parties. If that test is satisfied, defences are generally limited to fraud, denial of natural justice, or public policy."

Although the proceedings in the rabbinical court clearly had a "real and substantial" connection to the parties, and indeed they both agreed the court could grant their divorce, the religious nature of the ketubah raises issues about public policy. We live in a secular society and the rules of the Divorce Act and the Family Law Act take precedence over religious laws.

However, the ketubah is not only a religious document it is an agreement, a contract which may sometimes be enforced by the civil courts. The judge then quote from another Supreme Court of Canada decision, Morris v Morris, decided in 1973, for this proposition:

"[20] ... That the contract is deeply affected by religious considerations is not determinative of the issue. That is the beginning and not the end of the matter. Some contracts rooted in the religion of a particular faith may indeed be contrary to public policy. Others may not. Our task is to determine whether the rights and obligations flowing from the marriage contract — specifically, the husband's obligation to give and the wife's right to receive a Get — are contrary to public policy."

In other words, a religious contract may be enforced as a civil contract, although provisions that offend public policy, like a provision that someone receive a certain number of animals, pay an outrageously high sum of money or have automatic custody of the children, will not be enforced.

Justice Smith was not provided with Canadian cases about the enforcement of ketubot, but did find a case addressing mahr, a payment owed to a wife upon marriage, like dower, under Islamic law. The judge quoted a 1998 case out of Ontario, Kaddoura v. Hammoud:

"[23] ... The Mahr and the extent to which it obligates a husband to make payment to his wife is essentially and fundamentally an Islamic religious matter. Because Mahr is a religious matter, the resolution of any dispute relating to it or the consequences of failing to honour the obligation are also religious in their content and context. … 

"In my view, to determine what the rights and obligations of Sam and Manira are in relation to the undertaking of Mahr in their Islamic marriage ceremony would necessarily lead the Court into the 'religious thicket', a place that the courts cannot safely and should not go."

In another case, Delvarani v. Delvarani, a 2012 from the British Columbia Supreme Court, the court examined the status of a "written religious marriage certificate agreement" requiring the husband to provide the wife with the following upon separation:

1. a copy of the Quran;
2. a crystal sugar stick;
3. a bunch of narcissuses; and,
4. 3,000 gold coins.

Considering that the parties separated within six years of their marriage, the court held, as cited by Justice Smith in Stav, that:

"I am simply not prepared to accept that [the husband] would have agreed to such an amount, nor would it have been a fair agreement as contemplated by the [Family Relations Act]. This is so particularly in light of the very short marriage and the fact that there is really no connection whatsoever between the amount of money to be paid, the length of marriage, the need or dependency of [the wife], or the ability of [the husband] to pay that amount."

However, these considerations are somewhat beside the point, interesting though they are, as the wife in this case never raised the issue of the ketubah at the 2011 trial, even though that trial dealt with the financial issues arising from the breakdown of the parties' marriage. This raises the issue of action estoppel: should the wife be prevented from suing on the ketubah now, because she had the opportunity to raise the payment owing under the ketubah at trial and failed to do so?

The judge drew the test to determine action estoppel from a 2011 decision of the Court of Appeal, Re: Cliffs Over Maple Bay (comments in square brackets in Stav):

"[36] ... 1. There must be a final decision of a court of competent jurisdiction in the prior action [the requirement of 'finality']; 

"2. The parties to the subsequent litigation must have been parties to or in privy with the parties to the prior action [the requirement of 'mutuality']; 

"3. The cause of action and the prior action must not be separate and distinct; and 

"4. The basis of the cause of action and the subsequent action was argued or could have been argued in the prior action if the parties had exercised reasonable diligence."

Sounds kind of like the situation in Stav, doesn't it? The judge thought so:

"[37] In my view, all of those requirements are satisfied here. The family law proceeding that was commenced in this jurisdiction and went to trial ... was intended to resolve all issues, including financial issues between these parties arising from the divorce, to the extent such matters were within the jurisdiction of this court. Both parties were resident in British Columbia at the time of the trial and judgment. The claim under the ketubah did not involve physical assets outside the jurisdiction. It was a purely monetary claim allegedly flowing from the marriage and its breakdown. It was a claim that could and should have been advanced at the time."

And the wife was left with yet another set of costs to pay. Ultimately, the issue in this case was decided on the question of action estoppel, however the judge's survey on the treatment of religious contracts and obligations in family law matters makes this case worthy of a second read.

My thanks to the ineffable Agnes Huang for bringing this case to my attention.

New Blog on Shari'a Law in America

I've just learned of an interesting new blog, Shari'a Index, which digests significant American court cases addressing Islamic law, features a collection of links to case law, and offers case commentaries on diverse subjects including Muslim finance and the enforceability of Muslim marriage contracts. Although the blog is just getting started, it's already worth a visit.