Monday, January 07, 2008

Religious Divorce and Legal Obligation: Supreme Court of Canada Balances Competing Interests under Quebec Charter

Much has been written in the national press regarding the Supreme Court of Canada’s December 14, 2007 judgment in Bruker v. Marcovitz. By a 7-2 majority the Court ruled that a Jewish man from Quebec must pay his ex-wife damages of $47,500 to compensate her for losses arising from his refusal to provide her with a Jewish Divorce, or "Get," as he had contractually agreed.

While important, the decision does not necessarily constitute a wholly groundbreaking ruling, as frequently has been suggested in the press, in the area of Canadian religious or gender rights.

Rather, the Supreme Court’s ruling has established certain limited parameters, of particular precedence in Quebec, within which a moral obligation in the realm of religion may be given full contractual force within that Province. More broadly, perhaps, the ruling also establishes a framework for judicial consideration of competing religious and civil interests in matters arising under the Quebec Charter of Rights and Freedoms.

The parties, Stephanie Bruker and Jessel Marcovitz were married in 1969. Prior to the finalization of their civil divorce proceedings in 1981, the parties negotiated an agreement that contained a provision stating that upon the civil divorce being granted, Marcovitz woud take the necessary steps to obtain a Get.

Despite the clause in the Agreement, for 14 years after the civil divorce, Marcovitz refused to provide a Get. Bruker brought an action for damages arising out of Marcovitz’ breach of the Agreement and specifically for “damages to bodily, moral or material injury which is an immediate and direct consequence of the debtor’s default”.

The Court's judgment commences with a comprehensive survey of religious divorce and the parliamentary intent surrounding a 1990 amendment to Canada's Divorce Act that added s.21.1. It was this legislative amendment to the Divorce Act that made the groundbreaking advancement in religious (and certain accompanying gender) barriers in Canada by providing a legal recourse to persons affected by barriers a former spouse erects to the remarriage or the other. A refusal to provide a get would clearly be such an obstacle.

In religions including Roman Catholicism, Greek Orthodox and Islam, a religious tribunal is empowered to grant a religious divorce or annulment. While the consent of both spouses will make the process faster and easier, the ultimate decision to grant the religious divorce or annulment rests solely with the religious tribunal and cannot be unilaterally prevented by one of the spouses.

In Judaism, by contrast, according to religious law governing Jewish divorce the husband alone must voluntarily present his wife with a divorce document called a Get.

Without this document, the wife is not permitted to remarry within her faith and any children she bears, even through a civil remarriage will not be considered legitimate within the faith.

The necessity for the husband’s voluntariness creates a potential for resistance and “blackmail” scenarios, where for example, a husband could insist that his spouse refrain from seeking spousal support and/or custody in exchange for obtaining a Get.

In response to this problem, in 1990 an amendment was introduced to the Divorce Act with the intention of “provid[ing] a court with discretionary powers to preclude a spouse from obtaining relief or proceeding under the Divorce Act where that spouse refuses to remove a barrier to religious remarriage and where the power to remove the barrier to religious remarriage lies solely with that person”. Accordingly, section 21.1 of the Divorce Act, empowers a Court to refuse relief under the Act to a person who is refusing to remove a religious barrier, such as a Get.

Justice Abella summarized the distinct issues of Bruker v. Marcovitz as follows:

  1. Whether an agreement to give a get is a valid and binding contractual obligation under Quebec law, specifically with reference to the Quebec Civil Code; and
  2. Whether the husband can rely on the religious protections of the Quebec Charter of Rights and Freedoms to avoid the legal consequences of failing to comply with a lawful agreement

In analysis of the first issue, the majority examined the requirements of a valid contract under the Quebec Civil Code. In so doing, they also explored Marcovitz’ argument that the “object” of the contract was against public order because it restricted his exercise of fundamental freedom, including freedom of religion. In considering the Code’s relevant articles, and on consideration of the parliamentary intent in the 1990 amendments to the Divorce Act, the majority concluded that paragraph 12 of the parties’ agreement was not against public order and that in fact, Marcovitz' promise to obtain a Get “harmonizes with Canada’s approach to religious freedom, to equality rights, to divorce and remarriage generally”.

One particularly interesting aspect of this judgment, was its conclusion as to whether one could contract a moral obligation. Through analysis of the Quebec Civil Code, Justice Abella concluded that a moral obligation can, in fact, be transformed into a legal obligation.

She explained her reasoning through the following example: “Giving money to charity, for example, could be characterized as a moral and, therefore, legally unenforceable obligation. But if an individual enters into a contract with a particular charity agreeing to make a donation, the obligation may well become a valid and binding one if it compels with the requirements of contract under the C.C.Q. If it does, it is transformed from a moral obligation to a civil one enforceable by the Court”. Accordingly, after an analysis of the relevant articles of the Quebec Civil Code, the majority concludes that the parties’ agreement satisfied all requirements of a valid contract.

In analysis of the second issue, the Supreme Court relied on the previous case law, Marcovitz' actions, and case law from other jurisdictions in assessing whether an award of damages for breach of the contract infringed on Marcovitz’ right to religious freedom under Quebec’s Charter.

The majority considered that Canadian Court’s have previously stated that religious freedom is not without limitations, specifically in reference to the exercise of that freedom causing harm to others. It pointed out that s.9.1 of the Quebec Charter specifically provides for a “balancing of competing rights and values” to guide the Court in determining these limitations. Marcovitz’ actions, including his lack of religious justification for denying Bruker the Get, were also weighed in this analysis.

Finally, the majority considered how other jurisdictions have handled religious freedom with reference to religious divorces. Noted with emphasis was a case from Israel in which a judge awarded monetary damages to a woman in similar circumstances to Bruker’s. In his judgment the Judge stated that the subject matter of the damages is the long years of “loneliness and mental distress that were imposed on her by her husband” and are not applicable to the religious laws pertaining to Gets, which he confirmed were within the jurisdiction of the Rabbinical Court.

Based on these factors, the majority concluded that, “The Public Interest in protecting equality rights, the dignity of Jewish women in their independent ability to divorce and remarry, as well as the public benefit in enforcing valid and binding contractual obligations, are among the interest and values that outweigh Mr. Marcovitz’ claim that enforcing paragraph 12 of the Consent would interfere with his religious freedom.”

Accordingly, Ms. Bruker’s appeal was allowed and damages were awarded in her favour.

- Annie Noa Kenet, Toronto

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EMPLOYMENT LAWCIVIL LITIGATIONWILLS AND ESTATESFAMILY LAW & DIVORCE

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