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Canadian Court - Jewish Divorce

By Jeremy Morley

The Supreme Court of Canada made a rare foray into the religious forum yesterday, coming to the aid of a 48-year-old Jewish woman whose estranged husband had stubbornly refused for 15 years to grant her a religious release from their marriage.

A 7-2 court majority said that judges must tread warily when they adjudicate religious matters, but that it would be wrong to shy away when a bedrock Canadian principle - such as gender equality - is jeopardized.

The court awarded $47,500 to the plaintiff, Stephanie Bruker, on the basis that her right to remarry and have more children within her faith was unfairly curtailed by her vindictive ex-husband, Jason Marcovitz.

Writing for the majority, Madam Justice Rosalie Abella said that courts are empowered to referee religious disputes provided they "take into account the particular religion, the particular religious right, and the particular personal and public consequences - including the religious consequences - of enforcing that right."

However, two dissenting judges - Madam Justice Marie Deschamps and Madam Justice Louise Charron - issued a dire warning that by intruding into religion, the decision will drag the courts into potentially explosive cases where they have no place.

"The courts may not use their secular power to penalize a refusal to consent to a 'get,' failure to pay the Islamic mahr [dowry], refusal to raise children in a particular faith, refusal to wear the veil, failure to observe religious holidays, etc.," they said. "It has taken the Canadian state centuries to reach the still precarious balance we now have."

Married on July 27, 1969, Ms. Bruker and Mr. Marcovitz of Montreal signed an agreement setting out how they would settle matrimonial disputes if their marriage broke down. It included a commitment to attend a rabbinical court in order to obtain a get.

However, when they did split up in 1980, Mr. Marcovitz, 65, refused to adhere to the agreement he had signed. He also disparaged his wife's devotion to her religion and accused her of restricting his access to his daughters. He said the courts could not intrude into the dispute without violating his religious freedom guaranteed under the Quebec Charter of Human Rights and Freedoms.

Lawyers for Ms. Bruker countered that the agreement was an enforceable contract. They sought monetary damages on the basis that Ms. Bruker had been unable to remarry and any children she might have would not be seen as "legitimate" within her faith.

In 1995, Mr. Marcovitz relented, agreeing to grant a get. But it was too late. By this time, Ms. Bruker was 46, unmarried and past child-bearing age.

"This represented an unjustified and severe impairment of her ability to live her life in accordance with this country's values and her Jewish beliefs," Judge Abella wrote for the majority. "Any infringement of Mr. Marcovitz's freedom of religion is inconsequential, compared to the disproportionate disadvantaging effect on Ms. Bruker's ability to live her life fully as a Jewish woman in Canada."

Judge Abella said that the matrimonial agreement the couple signed was akin to a binding contract. Only a male can consent to a get, she added, and the Jewish community generally disapproves of a man who refuses to grant one.

But Judge Deschamps noted in her dissenting reasons that, under both Canadian and Quebec law, nothing prevented Ms. Bruker from remarrying if she chose to do so.

"Only her religious rights are in issue, and only as a result of religious rules," she said. "Where religion is concerned, the state leaves it to individuals to make their own choices. It is not up to the state to promote a religious norm. This is left to religious authorities ... In short, contract law cannot be relied on to enforce religious undertakings."

Source: Globe & Mail, December 15, 2007

Full post as published by International Family Law on December 16, 2007 (boomark / email).