Archive/File: orgs/canadian/canada/justice/ethnocultural-groups/ecg-007-01
Last-Modified: 1997/01/29
Source: Department of Justice Canada

7.2.3 Accounting for Cultural Diversity in Family Courts

The general problem of accommodating differences between
strongly engrained cultural and religious practices and
Canadian law is dealt with in the chapter on accommodating
diversity. There are several family law issues of this type,
including accommodating cultural prescriptions regarding
child custody with regard to the "best interests of the chi
d" principle; recognition of customary marriage and divorce;
and polygamy.

Apart from specific points of law, there is the general
question of how the courts might deal with these issues. It
is important in a pluralistic society that the justice
system, at least as much as all other societal institutions,
develop the capacity to accommodate the ever-changing
diversity of Canadian society. As Raj Anand points out,
where individuals are rejected by the dominant group, or
perceive themselves to be rejected, there is increased
potential for conflict with the dominant group.<215> By
showing respect for diversity, and by showing visible and
genuine efforts to accommodate the cultural values of
ethnocultural minorities, the courts can contribute to
social harmony and national unity and help to achieve the
multicultural objectives of Canada with authority and
dignity within the justice system.

As discussed above, this could be a particularly difficult
task in the area of family law in view of the extent to
which the family is considered isolated from the public
domain. There are no template answers to the general problem
of sensitivity in family law to the multicultural reality of
Canada. The Canadian legal system must deal with many
different ethnic cultures, as is evident from the results of
the "Clients Study." Integration into Canadian society is
the process which defines much of the reality for ethnic
groups. Change is omnipresent. Integration is a complex and
multifaceted process. There will be many variations in
customs, and degrees of adherence to traditional ways among
groups. Within ethnic groups, there will be many variations
in customs and degrees of adherence to traditional ways
between the genders, age groups, class groupings, and ethnic
or regional groupings from countries of origin. While, there
are no templates, there are two possible general approaches_
cross-cultural sensitization and community-based advice for
the judiciary.

7.2.4 Cross-Cultural Sensitization

Cross-cultural sensitization is a crucial element in family
law as well as criminal law. Sensitization programs for all
justice system personnel, developed on the basis of
carefully researched areas where cultural values and
practices conflict with Canadian statute law and case law
should be developed. Further, these should be developed and
tested in terms of approaches and methodologies in adult
education to assure the most effective possible results with
regard to changing attitudes and beliefs; to increase
knowledge about minority groups; and to reduce the frequency
of complaints of bias by those who seek the protection of
the justice system or are brought before it as accused.

7.2.5 A Mechanism for Community-based Advice for the
Judiciary

From the aboriginal justice field, there is the experience
of elders' panels and community justice committees. These
knowledgable and respected members of a community are able
to provide special insights and information to a judge to
allow her or him to make decisions that take into account
relevant knowledge of the culture or other special
circumstances involved. By making available to the presiding
judge such knowledge and insights not normally or readily
available to "outsiders," the courts can help to achieve
more culturally sensitive treatment of minorities. The
strength of the community becomes a resource which the
justice system calls upon to deal sensitively, and in a
culturally appropriate way, with matters which are
complicated interlacings of social and legal problems.

In urban settings, ethnocultural communities made up of
immigrants and the descendants of immigrants, also possess
the resources to deal with justice-related problems.
Communities do not dissipate in a process of assimilation
over time. Rather, ethnic communities are formed in the host
society as they develop mechanisms to adapt to the new
society. In a classic statement, Glazer and Moynihan wrote:

But as the groups were transformed by influences in American
society ... they were recreated as something new, but still
identifiable groups .... The ethnic group in American
society became not a survival from the age of mass
immigration but a new social form.<216>

Judges may need more information than strict legal knowledge
pertaining to a case<217> in order to properly understand
the facts and circumstances about the
customs and the social patterns of ethnocultural groups.
Within the adversarial

framework of the Canadian legal system, and given the
limitations of ability,
experience, preparation time, etc., affecting counsel, the
quality of justice may be
enhanced by the availability of some structured process by
which judges could,
through the mechanism of "judicial notice," consult with
people in the relevant communities. This could be as an arm
of the court or a non-governmental organization in the
justice field such as a public legal information
organization which would make the appropriate community
contacts at the discretion of the judge. There could be a
pilot project to examine the efficacy of this idea,
following some preliminary developmental work on its
feasibility and acceptability within the Judiciary.

Well-intentioned efforts to promote the recognition of
minority cultures in the Canadian social fabric, and genuine
attempts by the justice system to deal with ethnic diversity
in a sensitive and respectful manner must guard against the
possible unintended consequence of ghettoizing minority
groups. The Windsor Roundtable report cautions against the
inappropriate use of ethnic factors to support
discriminatory attitudes and practices, relating to gender
bias for example, that might be detrimental to large
segments of certain ethnic groups.<218> Finally, several
studies carried out by<219> or sponsored by<220> the
Department of Justice Canada express concerns that
maintaining cultural differences may prevent some members of
ethnocultural groups from learning about, and enjoying the
full range of rights and protection of the Canadian justice
system.<221>

7.3 Family Law Issues

One particularly important issue is-the need for more
information and support for immigrant and ethnocultural
minority women concerning separation, divorce, matrimonial
property, child custody, and related matters. Legal
information should be available in many languages with
respect to these matters. Information on separation and
immigration regulations should also be available in various
nonofficial languages. There are reports that many recent
women immigrants are afraid they will be deported from
Canada if they separate from their husbands. Partly because
of their lack of information about the law, there is a
danger that women and their children would remain in abusive
and possibly life-threatening situations. Access to the law
is a particularly difficult problem for many immigrant and
ethnocultural minority women. Such information and summary
legal advice should be made available through the efforts of
ethnocultural organizations, provincial legal aid
organizations, and public legal information agencies.

Some issues and potential factors inhibiting access to the
protection of the law have been identified. More
consultation and research should be carried out. However,
given the need to assist victims of family violence, the
appropriate next step would be developing projects to
provide the service, taking into account all that is
currently known about the factors inhibiting women from
seeking the protection of the justice system. Action-
oriented research could be carried out in the context of
pilot projects in order to refine our knowledge and modify
and improve approaches.

7.4 Foreign Domestic Workers

Domestic workers, who are typically female, may face many of
the same problems with respect to physical and sexual abuse
as spouses because of the dependency relationship which may
exist with their employer.<222> It would appear that they
face the same types of barriers accessing the protection of
the justice system.

One reported barrier is inadequate knowledge of their rights
under Canadian law, with respect to immigration law, labour
standards, and laws regarding physical and sexual abuse.
Public legal information programs should attempt to identify
and address the legal information needs of these women, and
the most appropriate means for delivering legal information
to them.
Like many immigrant women in need of the protection of the
law, domestic workers may distrust the justice system, and
their problems may remain hidden because of their reluctance
to seek protection. This mistrust applies equally to
mainstream intermediaries providing services and
information. The problems may be compounded for women with
language difficulties. A victim may be reluctant to tell her
story through a translator who is also a member of the
community because she is afraid the information will not
remain confidential and, as a consequence, the community
will disapprove or the employer will- become aware of the
complaint.

These concerns may apply equally to spouses experiencing
abuse. To effectively address domestic worker and spousal
abuse issues, it is important to determine the mix of legal
information, the availabilit,v of complaint mechanisms
within the community, and the link between community
organizations and elements of the mainstream justice and
social services systems.

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