Dispute Resolution Process
Dārul Qaḍā’ Canada
Dārul Qaḍā’ Canada resolves disputes by conciliation, mediation and arbitration. Only civil (non-criminal) family and other disputes are handled by Dārul Qaḍā’. In general the arbitration procedure adopted is consistent with Government of Ontario, Arbitration Act 1991. The awards are always based on natural justice as per Islāmic Aḥmadīyya Jurisprudence (fiqha).
The dispute resolution is processed when both parties submit a written signed request for dispute resolution to Naẓim Dārul Qaḍā’ Canada. Both parties are asked to sign an arbitration agreement as an affidavit, in which they agree to the rules and regulations of Aḥmadīyya Muslim Jamā‘at (AMJ) Dārul Qaḍā’ Canada with an irrevocable request to conduct arbitration between the parties on a specific dispute existing between them. In the same affidavit both parties authorize Dārul Qaḍā’ Canada to appoint a suitable Arbitrator for arbitration.
The “Family Arbitration” introduced by the Ontario government in 2008 specifies that every mediator-arbitrator practicing family arbitration should obtain training as specified by Ministry of Attorney General of Ontario Canada. Therefore, our Qadī are now trained as per ‘law of the land’ to conduct family dispute resolution. The procedure explained here is identical to the procedure adopted by International Aḥmadīyya Muslim Jamā‘at through Department of Dārul Qaḍā’ with some additional controls specific to family arbitration in Canada.
AMJ Dārul Qaḍā’ achieves Family Dispute Resolution process in two steps. The first step is negotiation and the second step is mediation-arbitration. This two step procedure has existed in the Aḥmadīyya Muslim Jamā‘at since its inception, while Ontario Government of Canada has introduced the similar two step procedure in 2008 to settle family disputes. Naẓim Dārul Qaḍā’ oversees the first step of negotiation, which is conducted by two Ḥakamain (conciliators). In case negotiation efforts are not successful, the appointed Qadī acting as mediator-arbitrator issues Qaḍā’ decision as an award or as an agreement after a detailed mediation-arbitration procedure. Aḥmadīyya Jurisprudence in Family Arbitration provides to the spouses some benefits which are not covered by the Family Law Act of Canada and are always specifically demanded by the parties in their applications e.g., Haq Mahr.
The arbitration awards issued by AMJ Dārul Qaḍā’ Canada are of course not enforceable currently by the Ontario Courts and fall under third party decisions. (Family Law Act, R.S.O. 1990, c.F.3, s.59.2 (1), (2) )
All the services provided by AMJ Dārul Qaḍā’ Canada for family and other dispute resolutions are voluntary and free of cost. Majority of community members prefer to opt for community family dispute resolution services.
Canadian Ahmadi Muslims are governed by two different sets of regulations.
First set is the Aḥmadīyya Islāmic jurisprudence, which is based on general guidance of the Holy Qur’ān and Ḥadīth. We being Muslims are to obey these Islāmic regulations.
Second set is the Canadian Provincial and Federal Regulations which are ‘Laws of the Land.’ We being Canadians are to obey these regulations as advised by the Holy Qur’ān (Al-Nisa 4:60).
AMJ Dārul Qaḍā’ will never make a resolution which contravenes with either sets of regulations. The fact is that majority of family laws of land are based on the guidance provided by the Holy Qur’ān. The Holy Qur’ān provides block guidance, while the secular system provides details and how to apply variables in the light of this guidance. The net result being that “natural justice” is provided by both systems together. The secular system is highly detail oriented and extremely helpful in dealing with variables.
The types of cases which are accepted by Dārul Qaḍā’ Canada for dispute resolution, are:
- Khula‘- Divorce request by a wife.
- Settlement of Islāmic Divorce Rights.
- Settlement of Financial disputes.
- The types of cases, which are not accepted by Dārul Qaḍā’ Canada for dispute resolution, are:
- All those cases, which fall under the jurisdiction of Police.
- All those cases, which are criminal in nature.
- All those cases, which were settled or are still in process by any third party.
- All those cases, in which parties fail to, sign the Arbitration Agreement, voluntarily.
- All those cases, in which any party is not a certified member of Aḥmadīyya Muslim Jamā‘at.
- All those cases in which any party is under moral disciplinary action by the Jamā‘at.
- All those cases which are being heard in any Canadian Court.
Steps involved in processing of a Dispute Resolution
1. Acceptance of an Application
The initial hand written, dated and signed application by any party can be submitted on a piece of paper, written legibly in English or Urdu. This application should give the nature of the case and claims by the applicant. All the facts and claims should be written briefly in this application.
The application can be addressed to National Amīr of Aḥmadīyya Muslim Jamā‘at Canada, or Naẓim Dārul Qaḍā’ Canada or Sadr National Qaḍā’ Board Canada. The applications are to be sent by post to “AMJ Canada 10610 Jane Street, Maple, ON, L6A 3A2”
Applicants should always provide the following essential information, in their applications.
Date of the application
Name of the applicant, with Jamā‘at Code Number
Address of the applicant
Home, mobile telephone and fax number
Email address of the applicant (if available)
Sometimes, Dārul Qaḍā’ receives such applications in which no contact information or date is provided by the applicant.
Naẓim Dārul Qaḍā’ will confirm receipt of the application by mail. An application proforma will be sent to the applicant, to be filled in, signed and returned.
Upon receipt of the filled proforma from the applicant, a copy of the original hand written application of the applicant will be sent to the respondent for Jawab Da‘waa or response. A similar response proforma is also sent to the respondent to be completed. Upon receipt of the completed proforma from the respondent, Naẓim Dārul Qaḍā’ will check the documents submitted by both parties. If all documents required by Dārul Qaḍā’ are complete from both parties, processing of the case will be initiated.
2. Appointment of a Qadī Awwal as Mediator- Arbitrator
Naẓim Dārul Qaḍā’ is authorized to appoint a suitable Qadī to act as mediator-arbitrator to arbitrate the dispute and transfer the case file to the appointed Qadī for inquiry process.
The Qadī will contact the parties through their contact telephone numbers provided by both in the proforma. If correct contacts are not provided by the parties, the information exchange may not flow between the parties and the Qadī. This will delay the processing and the parties will be responsible for this delay.
3. Confirmation of the Qadī by the Parties
During the first meeting of the parties with the Qadī, the parties will be required to confirm acceptance, in writing, of the appointment of the Qadī. This will confirm that parties have full trust in the Qadī appointed by Naẓim Dārul Qaḍā’ Canada and there is no bias against him by the parties.
4. Appointment of a Representative
If one of the Parties is living outside Canada and cannot present oneself before the Qadī during the hearing of the case, this party should appoint a Representative or Mukhtār by filling in the form provided with the proforma. The Representative should be a resident of Canada, so that he can present himself before the Qadī during the hearing of the case. The party can request Naẓim Dārul Qaḍā’ Canada for help in finding a suitable Representative within Canada, if the party is unable to find one.
5. Appointment of a
Ḥakam (in Khula’ cases only)
In Khula‘ case either party is required to nominate its Ḥakam. This is a requirement of the Holy Qur’ān (Al-Nisa 4:36). A proforma is sent to the applicant and to the respondent, which is to be filled by the parties. If Ḥakam is needed and is not appointed by any party, the case processing will be delayed. The function of the two Ḥakamain is to make an effort to reconcile the dispute by negotiation, between husband and wife. The appointed Ḥakam should be resident of Canada and should be capable of contacting the Naẓim Dārul Qaḍā’ Canada during the dispute negotiation for obtaining advice and guidelines for negotiation.
6. Processing of the case
If parties are cooperative, a case may take, 2 to 6 months to complete. Delays in a case depend upon the parties, how fast they can submit evidence to prove their claims. The onus of the proof is on the claimant. If any claim cannot be proven by the claimant, it may be dropped by the appointed Qadī.
Once the Qadī has completed the process of the inquiry he will either issue an award or an agreement called Memorandum of Understanding to be signed by the parties. He will return the case file with his award to Naẓim Dārul Qaḍā’.
Naẓim Dārul Qaḍā’ will send the award, to the parties, within 15 days of receipt from the Qadī. As parties are entitled to appeal; Qaḍā’ Office will wait for 30 days (within Canada) and 45 days (outside Canada) to hear any response from the parties. If no appeal is received from any party, the case will be sent to the office of Umur ‘Amma Canada, for implementation.
To further save the time, parties are advised to send information specifying their decision as to whether they intend to appeal the award or not, by return post. In case both parties inform the office, that both are not going to submit any appeal, the award will be forwarded for implementation, without any further delay.
The parties may inform the Qadī, during the final meeting, that they accept the award by him and request a speedy implementation and further confirm that no one will submit any appeal. Qadī will get their signatures for the acceptance of award and will inform Naẓim Dārul Qaḍā’ so that implementation may be done with speed.
If any party wants to submit an appeal, the party should inform Naẓim Dārul Qaḍā’ Canada and request for ‘guidelines for submission of an appeal’. These guidelines should be read by the party and followed while writing an appeal.