That ruling would be illegal. If the father is an unfit parent under Canadian law, giving him custody is illegal. Even if the mother abided by the ruling, a Canadian court would not enforce it.
I wouldn’t worry about custody matters. The courts will only respect arbitration findings in disputes which are completely private, between the parties, not in any dispute that has a publid dimension, or that affects a third party. Custody disputes are between a father and a mother, but they affect the child, so they can’t go to binding arbitration.
As Truth Seeker said, enforceable arbitrations are largely confined to disputes over property and money - mostly commercial disputes. There’s nothign to stop the parties using a private arbitration/conciliation service to settle the propety/financial/custody aspects of a marriage break-up, but the courts don’t accept the result as binding. They may attach considerable weight to it, depending on the circumstances, but they’re not bound by it.
My guess is that most of the binding arbitrations which emerge from this procedure will be in commercial disputes - say, between an Islamic bank or fiancier and its customers. Both parties might prefer to have a dispute of that kind litigated before an Islamic tribunal, because it (presumably) is already familiar with the principles of Islamic banking. Or it could deal with the breakdown of a relationship between two Muslim business partners. These are the kind of cases in which the London Beit Din produces rulings which the courts accept. (Not the Islamic banking cases, of course.) The London Beit Din also grants divorces, but the English civil courts pay its divorce decrees no attention whatsoever.
As others have commented, this proposal is essentially a form of private arbitration, which is a well-recognised method of settling disputes in Canadian law. However, arbitrations are not completely unregulated - each province has a statute setting out the legal scope and limitations of private arbitrations. The Ontario Arbitration Act is a typical example, and speaks to some of the concerns raised by some of the posters.
The starting point is that an arbitration agreement is just that: an agreement between the parties (see s. 1), and therefore subject to all the normal rules for a valid contract. Undue influence and duress have long been held to be grounds to set aside a contract.
As well, there are limitations placed on the parties’ freedom of contract. They can define their own arbitration system and contract out of some parts of the Act, but there are also parts of the Act that are mandatory. Section 3 provides that the parties cannot contract out of the general duty to treat the parties equally and fairly (s. 19), nor exclude the jurisdiction of the courts to review the agreement.
Some of the posters have raised the concern that Sharia law gives women lesser legal rights than men, and gives the evidence of men greater weight than the evidence of women. I don’t know if that is in fact the case, but if so, I think it would pose problems for the validity of a Sharia arbitration under the Act, which emphasises the equal treatment of the parties at several points. Section 19, which the parties cannot contract out of, reads:
This basic requirement of equality and fairness is referred to in several other provisions. For example, s. 6, para. 3 preserves the right of the courts to intervene “To prevent unequal or unfair treatment of parties to arbitration agreements.” Section 15(1) gives the courts the power to remove an arbitrator who does not conduct the arbitration “in accordance with section 19 (equality and fairness).”
Given this emphasis in the Act, an arbitration that treats women unequally with men would be subject to being overturned by the courts.
And that leads to the second point: parties who go to arbitration cannot exclude the jurisdiction of the courts to review the award on the request of one of the parties. This key right is set out at s. 46:
Ground 5 speaks directly to one of the concerns that some of the posters have raised: I doubt very much that the Ontario courts would hold that divorce or child custody and access are fit subjects for binding arbitration. Grounds 6 and 8 again speak to the concerns about equality. Ground 6 does so directly. Ground 8 does so indirectly, by making bias a ground to set aside the award. An arbitrator who automatically gave more weight to the man’s word than to the woman’s would be biased.
As always, this is meant simply to comment on a matter of public interest and discussion. It’s not meant for legal advice. If you want legal advice about an arbitration, talk to a lawyer in your jurisdiction.