Bruker v. Marcovitz

Bruker v. Marcovitz
Collection
Supreme Court Judgments
Date
2007-12-14
Neutral citation
2007 SCC 54
Report
[2007] 3 SCR 607
Case number
31212
Judges
McLachlin, Beverley; Bastarache, Michel; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Charron, Louise; Rothstein, Marshall
On appeal from
Quebec
Subjects
Constitutional law
Contract
Notes
SCC Case Information: 31212
Decision Content
SUPREME COURT OF CANADA
Citation: Bruker v. Marcovitz, [2007] 3 S.C.R. 607, 2007 SCC 54
Date: 20071214
Docket: 31212
Between:
Stephanie Brenda Bruker
Appellant
and
Jessel (Jason) Benjamin Marcovitz
Respondent
‑ and ‑
Canadian Civil Liberties Association
Intervener
Official English Translation: Reasons of Deschamps J.
Coram: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.
Reasons for Judgment:
(paras. 1 to 100)
Dissenting Reasons:
(paras. 101 to 185)
Abella J. (McLachlin C.J. and Bastarache, Binnie, LeBel, Fish and Rothstein JJ. concurring)
Deschamps J. (Charron J. concurring)
______________________________
Bruker v. Marcovitz, [2007] 3 S.C.R. 607, 2007 SCC 54
Stephanie Brenda Bruker Appellant
v.
Jessel (Jason) Benjamin Marcovitz Respondent
and
Canadian Civil Liberties Association Intervener
Indexed as: Bruker v. Marcovitz
Neutral citation: 2007 SCC 54.
File No.: 31212.
2006: December 5; 2007: December 14.
Present: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.
on appeal from the court of appeal for quebec
Contracts — Validity — Breach — Agreement with religious aspect — Husband refusing to provide wife with Jewish religious divorce after civil divorce despite agreement to do so — Action in damages against husband for breach of contract — Whether matter justiciable — Whether agreement satisfies all requirements to make it valid and binding under Quebec law — Whether husband can rely on freedom of religion to avoid legal consequences of failing to comply with agreement — Civil Code of Québec, S.Q. 1991, c. 64, arts. 1373, 1385, 1412, 1413 — Charter of human rights and freedoms, R.S.Q., c. C‑12, ss. 3, 9.1.
Human rights — Freedom of conscience and religion — Agreement with religious aspect — Jewish religious divorce or “get” — Husband refusing to provide wife with Jewish religious divorce after civil divorce despite agreement to do so — Action in damages against husband for breach of contract — Whether husband entitled to immunity from damages for his breach of contract by invoking freedom of religion — Charter of human rights and freedoms, R.S.Q., c. C‑12, ss. 3, 9.1.
The parties were married in 1969. Divorce proceedings were commenced in 1980 and three months later, the parties negotiated a Consent to Corollary Relief. Clause 12 of the agreement stated that the parties agreed to appear before the rabbinical authorities to obtain a Jewish divorce, or get, immediately upon the granting of the divorce. The civil divorce became final in 1981, when the husband, M, was 48 and the wife, B, was 31.
A wife cannot obtain a get unless her husband agrees to give it. Without one, she remains his wife and is unable to remarry under Jewish law. In this case, despite the wife’s repeated requests, the husband consistently refused to provide a get for 15 years, by which time the wife was almost 47. The wife sought damages for breach of the agreement. The husband argued that his agreement to give a get was not valid under Quebec law and that he was protected by his right to freedom of religion from having to pay damages for its breach.
The trial judge found that the agreement was valid and binding and that a claim for damages based on a breach of this civil obligation was within the domain of the civil courts. The Court of Appeal allowed the husband’s appeal. It found that because the substance of the obligation was religious in nature, the obligation was a moral one and was therefore unenforceable by the courts.
Held (Deschamps and Charron JJ. dissenting): The appeal should be allowed.
Per McLachlin C.J. and Bastarache, Binnie, LeBel, Fish, Abella and Rothstein JJ.: The fact that a dispute has a religious aspect does not by itself make it non‑justiciable. Recognizing the enforceability by civil courts of agreements to discourage religious barriers to remarriage, addresses the gender discrimination those barriers may represent and alleviates the effects they may have on extracting unfair concessions in a civil divorce. This harmonizes with Canada’s approach to equality rights, to divorce and remarriage generally, to religious freedom, and is consistent with the approach taken by other democracies. [41] [63]
Clause 12 of the agreement satisfies all requirements under the Civil Code to make it valid and binding under Quebec law. The promise by the husband to provide a get was part of a voluntary exchange of commitments intended to have legally enforceable consequences, negotiated between two consenting adults, each represented by counsel. The Court is not asked to determine doctrinal religious issues, and there is nothing in the Civil Code preventing someone from transforming his or her moral obligations into legally valid and binding ones. [16] [20] [47] [51]
Nor is the husband entitled to immunity from damages for his unilateral contractual breach by invoking his freedom of religion under s. 3 of the Quebec Charter of human rights and freedoms. The claim to religious freedom must be balanced and reconciled with countervailing rights, values, and harm, including the extent to which it is compatible with Canada’s fundamental values. Determining when such a claim must yield to a more pressing public interest is a complex, nuanced, fact‑specific exercise. [2] [77]
In this case, the husband’s claim does not survive the balancing mandated by the Quebec Charter and this Court’s jurisprudence. Any impairment to the husband’s religious freedom is significantly outweighed by the harm both to the wife personally and to the public’s interest in protecting fundamental values such as equality rights and autonomous choice in marriage and divorce. These, as well as the public benefit in enforcing valid and binding contractual obligations, are among the interests that outweigh the husband’s claim. [17] [70] [92]
There is no reason to interfere with the trial judge’s award for damages, interest and additional indemnity. [97‑99]
Per Deschamps and Charron JJ. (dissenting): In Canadian law, a court is not barred from considering a question of a religious nature, provided that the claim is based on the violation of a rule recognized in positive law. The role of a court asked to resolve a private dispute relating to religion is limited to identifying the point at which rights converge so as to ensure respect for freedom of religion. The courts can play this role only if they remain neutral where religious precepts are concerned. The principle of non‑intervention in religious practices makes it possible to avoid situations in which the courts have to decide between various religious rules or between rules of secular law and religious rules. In the instant case, the wife, B, has not argued that her civil rights were infringed by a civil standard derived from positive law. Under Canadian and Quebec law, she could remarry and any children born of this new union would have had the same civil rights as “legitimate” children. Only her religious rights are in issue, and only as a result of religious rules. Thus, the ground for B’s claim for compensation conflicts with gains that are dear to civil society, and her claim places the courts in conflict with the laws they are responsible for enforcing. 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. [102] [122‑132]
It can be seen from an overview of the general approach taken by foreign courts with respect to religion and the legal mechanisms used to deal with gets that some of the solutions adopted are already available to Quebec and Canadian litigants, but that others are not because the rules are different in Canada. The decisions of each country’s courts are based on mechanisms proper to that country and establish no principle of public law that would justify Canadian courts altering their approach. In Canada, the get issue is governed by internal private law rules. [154‑155]
The clause in issue is found in a corollary relief agreement incorporated into a decree that orders the parties to comply with their undertakings. The inclusion in the corollary relief agreement of an undertaking to appear before the rabbinical authorities has the effect neither of making this undertaking a right or obligation provided for in the Divorce Act or the Civil Code of Québec, nor of making it relief corollary to the divorce. If clause 12 can serve as the basis for a separate action, it must be regarded as an autonomous clause and must satisfy the requirements of Quebec civil law. In the instant case, the clause in question cannot, legally, be characterized as a contract. It is a purely moral undertaking. Neither the undertaking to consent to a religious divorce nor the religious divorce itself has civil consequences. Since the parties did not envisage a juridical operation, it must be concluded that one of the essential elements of contract formation — the object (art. 1412 C.C.Q.) — is missing. [157‑161] [174] [180]
Even if this moral undertaking had been actionable, the assessment of damages would have required the court to implement a rule of religious law that is not within its jurisdiction and that violates the secular law it is constitutionally responsible for applying. The damages claimed by B are based on her observance of specific religious precepts. Freedom of religion is not recognized as a means of forcing another person to perform a religious act. Nor can the civil courts be used to sanction the failure to perform such an act. B’s argument, if it were accepted, would require recognition of a legal situation that is contrary to the rules of Canadian and Quebec family law, and to sanction the religious law would be to impose a rule that is inconsistent with the rights the secular courts are otherwise responsible for enforcing. [178‑180]
Cases Cited
By Abella J.
Referred to: Syndicat Northcrest v. Amselem, [2004] 2 S.C.R. 551, 2004 SCC 47; McCaw v. United Church of Canada (1991), 4 O.R. (3d) 481; Lindenburger v. United Church of Canada (1985), 10 O.A.C. 191; Nathoo v. Nathoo, [1996] B.C.J. No. 2720 (QL); Amlani v. Hirani (2000), 194 D.L.R. (4th) 543, 2000 BCSC 1653; M. (N.M.) v. M. (N.S.) (2004), 26 B.C.L.R. (4th) 80, 2004 BCSC 346; Lakeside Colony of Hutterian Brethren v. Hofer, [1992] 3 S.C.R. 165; Re Morris and Morris (1973), 42 D.L.R. (3d) 550; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Young v. Young, [1993] 4 S.C.R. 3; P. (D.) v. S. (C.), [1993] 4 S.C.R. 141; B. (R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315; Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825; Multani v. Commission scolaire Marguerite‑Bourgeoys, [2006] 1 S.C.R. 256, 2006 SCC 6; H.C. 292/83, Temple Mount Faithful v. Jerusalem District Police Commander, 38(2) P.D. 449; Christian Education South Africa v. Minister of Education (2000), 10 B. Const. L.R. 1051; Aubry v. Éditions Vice‑Versa inc., [1998] 1 S.C.R. 591; D. v. France, Application No. 10180/82, December 6, 1983, D.R. 35, p. 199; Trib. civ. Seine, February 22, 1957, Gaz. Pal. 1957.1.246; Civ. 2e, December 13, 1972, D. 1973.493; Brett v. Brett, [1969] 1 All E.R. 1007; In the Marriage of Shulsinger (1977), 13 A.L.R. 537; In the Marriage of Steinmetz (1980), 6 F.L.R. 554; Avitzur v. Avitzur, 459 N.Y.S.2d 572 (1983); Waxstein v. Waxstein, 395 N.Y.S.2d 877 (1976), aff’d 394 N.Y.S.2d 253 (1977); Rubin v. Rubin, 348 N.Y.S.2d 61 (1973); Minkin v. Minkin, 434 A.2d 665 (1981); Jane Doe v. John Doe, Jerusalem Fam. Ct., No. 19270/03, December 21, 2004; H.C. 6751/04, Sabag v. Supreme Rabbinical Court of Appeals, 59(4) P.D. 817.
By Deschamps J. (dissenting)
Congrégation des témoins de Jéhovah de St‑Jérôme‑Lafontaine v. Lafontaine (Village), [2004] 2 S.C.R. 650, 2004 SCC 48; Haig v. Canada (Chief Electoral Officer), [1993] 2 S.C.R. 995; Re Morris and Morris (1973), 42 D.L.R. (3d) 550; Nathoo v. Nathoo, [1996] B.C.J. No. 2720 (QL); Amlani v. Hirani (2000), 194 D.L.R. (4th) 543, 2000 BCSC 1653; M. (N.M.) v. M. (N.S.) (2004), 26 B.C.L.R. (4th) 80, 2004 BCSC 346; Kaddoura v. Hammoud (1998), 168 D.L.R. (4th) 503; Despatie v. Tremblay (1921), 47 B.R. 305; Ukrainian Greek Orthodox Church of Canada v. Trustees of the Ukrainian Greek Orthodox Cathedral of St. Mary the Protectress, [1940] S.C.R. 586; Ouaknine v. Elbilia, [1981] C.S. 32; Lakeside Colony of Hutterian Brethren v. Hofer, [1992] 3 S.C.R. 165; Syndicat Northcrest v. Amselem, [2004] 2 S.C.R. 551, 2004 SCC 47; Ouellette v. Gingras, [1972] C.A. 247; Curé et marguilliers de l’œuvre et fabrique de la paroisse de St‑Zacharie v. Morin, [1968] C.S. 615; Mathys v. Demers, [1968] C.S. 172; Bergeron v. Proulx, [1967] C.S. 579; Civ. 2e, April 21, 1982, Bull. civ. II, No. 62; Civ. 2e, June 5, 1985, J.C.P. 1987.II.20728; Civ. 2e, June 15, 1988, Bull. civ. II, No. 146; Civ. 2e, November 21, 1990, D. 1991.434; R. (S.B.) v. Governors of Denbigh High School, [2007] 1 A.C. 100, [2006] UKHL 15; Brett v. Brett, [1969] 1 All E.R. 1007; Leskun v. Leskun, [2006] 1 S.C.R. 920, 2006 SCC 25; Serbian Eastern Orthodox Diocese for the United States of America and Canada v. Milivojevich, 426 U.S. 696 (1976); Schwartz v. Schwartz, 583 N.Y.S.2d 716 (1992); Giahn v. Giahn, N.Y. Sup. Ct., April 13, 2000, unreported; Avitzur v. Avitzur, 459 N.Y.S.2d 572 (1983); Segal v. Segal, 650 A.2d 996 (1994); H.C. 292/83, Temple Mount Faithful v. Jerusalem District Police Commander, 38(2) P.D. 449; Cr. A. 112/50, Yosifof v. Attorney-General, 5 P.D. 481; Jane Doe v. John Doe, Jerusalem Fam. Ct., No. 19270/03, December 21, 2004; Frame v. Smith, [1987] 2 S.C.R. 99; Christiaenssens v. Rigault, [2006] Q.J. No. 5765 (QL), 2006 QCCA 853.
Statutes and Regulations Cited
Act respecting the implementation of the reform of the Civil Code, S.Q. 1992, c. 57, s. 9.
Canadian Charter of Rights and Freedoms, s. 2 .
Canadian Multiculturalism Act, R.S.C. 1985, c. 24 (4th Supp .).
Charter of human rights and freedoms, R.S.Q., c. C‑12, ss. 3, 9.1.
Civil Code of Lower Canada, arts. 982, 983, 984.
Civil Code of Québec, S.Q. 1991, c. 64, arts. 1373, 1378, 1385, 1410, 1412, 1413, 1607, 1618, 1619.
Divorce Act, R.S.C. 1985, c. 3 (2nd Supp .), ss. 15.1 , 15.2 , 16 , 21.1 .
Foundations of Law Act, 1980, 5740‑1980, 34 L.S.I. 181 (1979‑80), s. 1.
N.Y. Domestic Relations Law § 253 (Consol. 1990).
United States Constitution, First Amendment.
Treaties and Other International Instruments
Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 221, art. 9.
Authors Cited
Agostini, Éric. Observation sous Civ. 2e, 5 juin 1985, J.C.P. 1987.II.20728.
Agostini, Éric. Observation sous Civ. 2e, 21 novembre 1990, D. 1991.434.
Atlan, Gabrielle. Les Juifs et le divorce: Droit, histoire et sociologie du divorce religieux. New York: Peter Lang, 2002.
Barbier, Pierre. “Le problème du ‘Gueth’”, Gaz. Pal. 1987.484.
Barnett, Adrienne. “Getting a ‘Get’ — The Limits of Law’s Authority?: N. v. N. (Jurisdiction: Pre‑Nuptial Agreement) [1999] 2 F.L.R. 745” (2000), 8 Fem. Legal Stud. 241.
Baudouin et Jobin: Les obligations, 6e éd. par Pierre-Gabriel Jobin avec la collaboration de Nathalie Vézina. Cowansville, Qué.: Yvon Blais, 2005.
Benjamin, Ben. “Judaism and the Laws of Divorce”, [2001] UCL Jurisprudence Rev. 177.
Bleich, J. David. “Jewish Divorce: Judicial Misconceptions and Possible Means of Civil Enforcement” (1984), 16 Conn. L. Rev. 201.
Brierley, John E. C., and Roderick A. Macdonald. Quebec Civil Law: An Introduction to Quebec Private Law. Toronto: Emond Montgomery, 1993.
Canada. House of Commons. House of Commons Debates, vol. VI, 2nd Sess., 34th Parl., February 15, 1990, pp. 8375‑77.
Canada. House of Commons. House of Commons Debates, vol. VIII, 2nd Sess., 34th Parl., May 4, 1990, pp. 11033‑34.
Capell, Heather Lynn. “After the Glass Has Shattered: A Comparative Analysis of Orthodox Jewish Divorce in the United States and Israel” (1998), 33 Tex. Int’l L.J. 331.
Chigier, M. “Ruminations Over the Agunah Problem” (1981), 4 Jewish L. Ann. 207.
Comparato, Fábio Konder. Essai d’analyse dualiste de l’obligation en droit privé. Paris: Dalloz, 1964.
de Naurois, Louis. Observation sous Trib. civ. Metz, 27 avril 1955, Trib. civ. Grenoble, 7 mai 1958, Paris 1re, 4 février 1959, J.C.P. 1960.II.11632.
Einhorn, Talia. “Jewish Divorce in the International Arena”, in Jürgen Basedow et al., eds., Private Law in the International Arena: From National Conflict Rules Towards Harmonization and Unification: Liber Amicorum Kurt Siehr. The Hague: T.M.C. Asser, 2000, 135.
Freeman, M. D. A. “Jews and the Law of Divorce in England” (1981), 4 Jewish L. Ann. 276.
Glenn, H. Patrick. “Where Heavens Meet: The Compelling of Religious Divorces” (1980), 28 Am. J. Comp. L. 1.
Greenawalt, Kent. “Religious Law and Civil Law: Using Secular Law to Assure Observance of Practices with Religious Significance” (1998), 71 S. Cal. L. Rev. 781.
Karim, Vincent. Les obligations, 2e éd. Montréal: Wilson & Lafleur, 2002.
Lapidoth, Ruth. “Freedom of Religion and of Conscience in Israel” (1998), 47 Cath. U. L. Rev. 441.
Larroumet, Christian. Note sous Civ. 2e, 13 décembre 1972, D. 1973.493.
Lluelles, Didier, et Benoît Moore. Droit des obligations. Montréal: Thémis, 2006.
Meislin, Bernard J. “Pursuit of the Wife’s Right to a ‘Get’ in United States and Canadian Courts” (1981), 4 Jewish L. Ann. 250.
Ogilvie, M. H. Religious Institutions and the Law in Canada, 2nd ed. Toronto: Irwin Law, 2003.
Pineau, Jean. “Theory of Obligations”, in Reform of the Civil Code, vol. 2A, Obligations. Texts written for the Barreau du Québec and the Chambre des notaires du Québec. Translated by Susan Altschul. Montréal: Barreau du Québec, 1993.
Private Law Dictionary and Bilingual Lexicons: Obligations. Editorial Committee: France Allard et al. Cowansville, Qué.: Yvon Blais, 2003.
Québec. Assemblée nationale. Journal des débats: Commissions parlementaires, 3e sess., 32e lég., 16 décembre 1982, p. B‑11609.
Québec. Ministère de la Justice. Commentaires du ministre de la Justice — Le Code civil du Québec: Un mouvement de société, t. I. Québec: Publications du Québec, 1993.
Riskin, Shlomo. A Jewish Woman’s Right to Divorce: A Halakhic History and a Solution for the Agunah. Jersey City, New Jersey: KTAV Publishing, 2006.
Shachar, Ayelet. Multicultural Jurisdictions: Cultural Differences and Women’s Rights. Cambridge: Cambridge University Press, 2001.
Shifman, Pinhas. “Family Law in Israel: The Struggle Between Religious and Secular Law” (1990), 24 Isr. L. Rev. 537.
Sossin, Lorne. Boundaries of Judicial Review: The Law of Justiciability in Canada. Scarborough, Ont.: Carswell, 1999.
Washofsky, Mark. “The Recalcitrant Husband: The Problem of Definition” (1981), 4 Jewish L. Ann. 144.
APPEAL from a judgment of the Quebec Court of Appeal (Hilton, Dutil and Bich JJ.A.), [2005] R.J.Q. 2482, 259 D.L.R. (4th) 55, [2005] R.D.F. 714, 36 C.C.L.T. (3d) 14, 31 R.F.L. (6th) 265, [2005] Q.J. No. 13563 (QL), 2005 QCCA 835, reversing a decision of Mass J., [2003] R.J.Q. 1189 (sub nom. S.B.B. v. J.BE.M.), [2003] R.D.F. 342, [2003] Q.J. No. 2896 (QL) (sub nom. S.B.B. v. J.B.M.). Appeal allowed, Deschamps and Charron JJ. dissenting.
Alan M. Stein, William Brock, David Stolow and Brandon Wiener, for the appellant.
Anne‑France Goldwater and Marie‑Hélène Dubé, for the respondent.
Andrew K. Lokan and Jeff Larry, for the intervener.
The judgment of McLachlin C.J. and Bastarache, Binnie, LeBel, Fish, Abella and Rothstein JJ. was delivered by
[1] Abella J. — Canada rightly prides itself on its evolutionary tolerance for diversity and pluralism. This journey has included a growing appreciation for multiculturalism, including the recognition that ethnic, religious or cultural differences will be acknowledged and respected. Endorsed in legal instruments ranging from the statutory protections found in human rights codes to their constitutional enshrinement in the Canadian Charter of Rights and Freedoms , the right to integrate into Canada’s mainstream based on and notwithstanding these differences has become a defining part of our national character.
[2] The right to have differences protected, however, does not mean that those differences are always hegemonic. Not all differences are compatible with Canada’s fundamental values and, accordingly, not all barriers to their expression are arbitrary. Determining when the assertion of a right based on difference must yield to a more pressing public interest is a complex, nuanced, fact-specific exercise that defies bright- line application. It is, at the same time, a delicate necessity for protecting the evolutionary integrity of both multiculturalism and public confidence in its importance.
Background
[3] A get is a Jewish divorce. Only a husband can give one. A wife cannot obtain a get unless her husband agrees to give it. Under Jewish law, he does so by “releasing” his wife from the marriage and authorizing her to remarry. The process takes place before three rabbis in what is known as a beth din, or rabbinical court.
[4] The husband must voluntarily give the get and the wife consent to receive it. When he does not, she is without religious recourse, retaining the status of his wife and unable to remarry until he decides, in his absolute discretion, to divorce her. She is known as an agunah or “chained wife”. Any children she would have on civil remarriage would be considered “illegitimate” under Jewish law.
[5] For an observant Jewish woman in Canada, this presents a dichotomous scenario: under Canadian law, she is free to divorce her husband regardless of his consent; under Jewish law, however, she remains married to him unless he gives his
consent. This means that while she can remarry under Canadian law, she is prevented from remarrying in accordance with her religion. The inability to do so, for many Jewish women, results in the loss of their ability to remarry at all.
[6] The vast majority of Jewish husbands freely give their wives a get. Those who do not, however, represent a long-standing source of concern and frustration in Jewish communities (Talia Einhorn, “Jewish Divorce in the International Arena”, in J. Basedow et al., eds., Private Law in the International Arena: From National Conflict Rules Towards Harmonization and Unification: Liber Amicorum Kurt Siehr (2000), 135; H. Patrick Glenn, “Where Heavens Meet: The Compelling of Religious Divorces” (1980), 28 Am. J. Comp. L. 1; M. D. A. Freeman, “Jews and the Law of Divorce in England” (1981), 4 Jewish L. Ann. 276; Bernard J. Meislin, “Pursuit of the Wife’s Right to a ‘Get’ in United States and Canadian Courts” (1981), 4 Jewish L. Ann. 250; Mark Washofsky, “The Recalcitrant Husband: The Problem of Definition” (1981), 4 Jewish L. Ann. 144; M. Chigier, “Ruminations Over the Agunah Problem” (1981), 4 Jewish L. Ann. 207; Shlomo Riskin, A Jewish Woman’s Right to Divorce: A Halakhic History and a Solution for the Agunah (2006); Ayelet Shachar, Multicultural Jurisdictions: Cultural Differences and Women’s Rights (2001); and J. David Bleich, “Jewish Divorce: Judicial Misconceptions and Possible Means of Civil Enforcement” (1984), 16 Conn. L. Rev. 201).
[7] In response to these concerns, after consultation with the leaders of 50 religious groups in Canada and with the specific agreement of the Roman Catholic, Presbyterian and Anglican churches, in 1990 the then Minister of Justice, Doug Lewis, introduced amendments to the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp .), Bill C-61, giving a court discretionary authority to prevent a spouse from obtaining relief under the Act if that spouse refused to remove a barrier to religious remarriage (s. 21.1 ). At second reading, the Minister outlined the motivation for these amendments, explaining:
The bill before us today is an amendment to the Divorce Act which would provide 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. Where the court is satisfied that the spouse who refuses to remove the barrier has genuine grounds of a religious or conscientious nature for doing so, it need not exercise its discretion to grant the remedy provided for in this legislation.
. . . A spouse should not be able to refuse to participate in a Jewish religious divorce — called a Get — in order to obtain concessions in a civil divorce. The Get should not be used as a bargaining tool for child custody and access or monetary support.
. . . I am concerned about protecting the integrity of the Divorce Act and preventing persons from avoiding the application of the principles contained in the act. For example, a wife may feel compelled to agree to custody arrangements which are not truly in the best interests of a couple’s child in order to obtain a Get.
I want to take a few minutes to describe briefly the dilemma certain Jewish persons face because of their religious divorce procedures. In the Jewish religion divorce is accomplished by the delivery of a Get from the husband and its acceptance by the wife in the presence of a Rabbinical Court. According to the Jewish religious traditions, the procedure cannot be changed. Without a Get, a Jewish woman cannot remarry in her own faith. Children of a subsequent civil marriage suffer religious disabilities. While difficult remarriage within the Jewish faith for a man in the same circumstances is not impossible.
. . .
. . . the government is moving where it can and where it is brought to the government’s attention to eliminate sexism and gender bias in the law. . . .
. . .
It is the case that in some religions, the Roman Catholic, Greek Orthodox and Islam, annulment or divorce may proceed more easily and faster if the couple agree.
However, in all these cases, the authority to grant the annulment or divorce rests with the religious tribunal, not the couple.
An un-co-operative spouse may delay a decision, but ultimately he or she cannot prevent the religious tribunal from rendering its decision.
In these religions, the spouse initiating the action can ask the religious authorities to deal with this problem.
The Jewish spouse does not have that recourse.
(House of Commons Debates, vol. VI, 2nd Sess., 34th Parl., February 15, 1990, at pp. 8375-77)
[8] At third reading of these amendments, Kim Campbell, who succeeded Mr. Lewis as Minister of Justice, confirmed the policy rationale for this legislative initiative:
The purpose of this bill is to assist Jewish citizens whose spouses are withholding a religious divorce, which is called a get, in order to obtain concessions in a civil divorce. . . .
. . .
The consequences to women deprived of a get and loyal to their faith are severe. They may not remarry within their faith, even though civilly divorced. If they do remarry, children from a second civil marriage are considered illegitimate and restricted from practising their religion. Such consequences to a religious person leave them open to blackmail from the spouse withholding the get. For example, the spouse could say, “Give up your claim for support or custody of the children and I will offer the get.” Even those not contemplating a second marriage find it uncomfortable to be considered married within their religion to someone they have divorced civilly.
The vast majority of adherents to the Jewish faith condemn as unfair this practice of bargaining with the get. Yet they are powerless to amend the situation. Persuasion by rabbis has often proved ineffective. Since the dispersion of the Jews there is no central Jewish authority to amend the Jewish legal code, . . . which governs the get. Nor is there any modern-day authority within rabbinical courts to enforce the offer and receipt of gets. Full support for Bill C-61 was expressed by major Jewish organizations who attended the hearings before the legislative committee. Representatives of the three Parties praised the bill and quickly passed two minor technical amendments.
. . .
As well, the Toronto Board of Orthodox Rabbis . . . endorsed the legislation and the two amendments.
. . .
[Translation]
Bill C-61 will enable Canada’s Jewish community to preserve its traditions without destabilizing models of family life. It also ensures that the principles of the Divorce Act with respect to alimony and custody are applied equally to all Canadians.
(House of Commons Debates, vol. VIII, 2nd Sess., 34th Parl., May 4, 1990, at pp. 11033-34)
[9] For many years, civil courts have attempted to remedy, or compensate for, the husband’s recalcitrance in refusing to provide a get to his wife. They are often faced with assertions by the husband that such interventions are a violation of his freedom of religion.
[10] This is one such case. The husband and wife, each represented by counsel, voluntarily negotiated and signed a “Consent to Corollary Relief” in order to settle their matrimonial disputes. One of the commitments made in the agreement was that they would attend before the rabbinical court to obtain a get.
[11] The husband refused to do so for 15 years, challenging the very validity of the agreement he freely made, claiming that its religious aspect rendered it unenforceable under Quebec law, and arguing that he was entitled to be shielded by his right to freedom of religion from the consequences of refusing to comply with his commitment.
[12] The wife, on the other hand, asserted that the agreement to attend and obtain a get was part of the trade-offs negotiated by the parties (they signed mutual releases) and was consistent with Quebec law and values. She sought a remedy in the form of damages to compensate her for the husband’s extended non-compliance. She did not seek an order of specific performance directing him to appear before the rabbis.
[13] There are, therefore, two issues raised by this case. The first is whether the agreement in the Consent to give a get is a valid and binding contractual obligation under Quebec law. This first question involves examining the relevant provisions and principles of the Civil Code of Québec, S.Q. 1991, c. 64.
[14] If the commitment is a legally binding one under Quebec law, we must determine whether the husband can rely on freedom of religion to avoid the legal consequences of failing to comply with a lawful agreement. This inquiry takes place within the boundaries set by the provisions and principles of the Quebec Charter of human rights and freedoms, R.S.Q., c. C-12, where the claim of the husband to religious freedom is balanced against the claim of the wife that acceding to the husband’s argument is disproportionately harmful to her personally, and, more generally, to democratic values and Quebec’s best interests.
[15] The judicial role in balancing and reconciling competing interests and values when freedom of religion is raised, is one that protects the tolerance Quebec endorsed in the Quebec Charter. Section 9.1 states that in exercising their fundamental freedoms and rights — including freedom of religion — persons “shall maintain a proper regard for democratic values, public order and the general well-being of the citizens of Québec”. This provision is a legislative direction that the courts are to protect the rights of Quebec’s citizens in a way that is balanced and reconciled with other public values.
[16] In my view, an agreement between spouses to take the necessary steps to permit each other to remarry in accordance with their own religions, constitutes a valid and binding contractual obligation under Quebec law. As the comments of the former Ministers of Justice reveal, such agreements are consistent with public policy, our approach to marriage and divorce, and our commitment to eradicating gender discrimination.
[17] I am also persuaded that, applying the balancing mandated by s. 9.1 of the Quebec Charter, any harm to the husband’s religious freedom in requiring him to pay damages for unilaterally breaching his commitment, is significantly outweighed by the harm caused by his unilateral decision not to honour it.
[18] This is not, as implied by the dissent, an unwarranted secular trespass into religious fields, nor does it amount to judicial sanction of the vagaries of an individual’s religion. In deciding cases involving freedom of religion, the courts cannot ignore religion. To determine whether a particular claim to freedom of religion is entitled to
protection, a court must 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.
[19] Mediating these highly personal claims to religious rights with the wider public interest is a task that has been assigned to the courts by legislatures across the country. It is a well-accepted function carried out for decades by human rights commissions under federal and provincial statutes and, for 25 years, by judges under the Canadian Charter of Rights and Freedoms , to ensure that members of the Canadian public are not arbitrarily disadvantaged by their religion.
[20] This case fits comfortably in that tradition. It represents yet another case in which the claim to religious protection is balanced against competing interests. The Court is not asked to endorse or apply a religious norm. It is asked to exercise its responsibility, conferred by the Quebec Charter, to determine whether the husband is entitled to succeed in his argument that requiring him to pay damages for the breach of a legally binding agreement violates his freedom of religion. No new principle emerges from the result in this case. Courts are routinely asked whether a contract is valid. And the inquiry under the Quebec Charter is the application of a classic and cautious balancing that courts are required to undertake in determining whether a particular claim to religious freedom is sustainable, one case at a time, attempting always to be respectful of the complexity, sensitivity, and individuality inherent in these issues.
Prior Proceedings
[21] Stephanie Bruker married Jason Marcovitz on July 27, 1969. Although their degrees of observance differ, both consider themselves to be religious Jews.
[22] Mr. Marcovitz was previously married and had granted his first wife a get.
[23] Divorce proceedings were commenced by Ms. Bruker in 1980. She was 31 and Mr. Marcovitz was 48. An agreement on corollary matters was negotiated with the assistance of separate legal counsel and signed by both of them three months later. This “Consent to Corollary Relief” included terms regarding the custody of their two children, child support payments, and lump sum spousal support.
[24] Paragraph 12 of the Consent stated that the parties agreed to appear before the rabbinical authorities to obtain a get immediately upon the granting of the Decree Nisi. A Decree Nisi was granted on October 23, 1980. Among other provisions, it ordered the parties to comply with the Consent. A Decree Absolute was granted on February 9, 1981.
[25] Despite Ms. Bruker’s repeated requests, both personally and through various rabbis, Mr. Marcovitz consistently refused to provide a get for 15 years.
[26] Not surprisingly, the relationship between the parties deteriorated as Mr. Marcovitz’s refusals continued. In July 1989, nine years after the Decree Nisi, Ms. Bruker began proceedings for breach of the Consent, initially claiming damages in the amount of $500,000 for her inability to remarry and for being prevented from having children who would be considered “legitimate” under Jewish law.
[27] Mr. Marcovitz, in response, argued that Ms. Bruker had repudiated the Consent by continually seeking increases in child support payments, and complained that he saw his two daughters irregularly. He also questioned Ms. Bruker’s devotion to the Jewish faith.
[28] In 1990, pursuant to s. 21.1 of the Divorce Act , Ms. Bruker filed an affidavit confirming that, despite her formal requests, Mr. Marcovitz had not given her a get. As a result, when Mr. Marcovitz brought motions in November 1995 seeking to quash the
affidavit and to have his obligation to pay child support retroactively rescinded, Marcelin J. declined to hear the motions and ordered that the matters be put over to December 6, 1995.
[29] On December 5, 1995, Mr. Marcovitz appeared before the rabbinical court of Montréal and agreed to deliver the get. He was 63 and Ms. Bruker was almost 47. In 1996, Ms. Bruker substantially increased the amount of damages she was seeking.
[30] Ms. Bruker did not remarry or have any other children.
[31] At trial, Mass J. held that once Mr. Marcovitz signed a civil agreement, the obligation to appear before the rabbinical authorities for the purpose of obtaining a get “moved into the realm of the civil courts” ([2003] R.J.Q. 1189, at para. 19). He found that as a civil contract, notwithstanding that its purpose was partly to compel religious obligations, the Consent was valid and binding and that pursuant to Paragraph 12, Mr. Marcovitz had “a clear and unequivocal civil law obligation to appear ‘immediately’ before the Rabbinical authorities” (para. 19). As he noted:
The pith and essence of what is being asked for in this case is not religious. . . . [T]he case is an assessment of damages stemming from a factual situation which involves Jewish parties and Jewish institutions — but principles of Jewish law do not have to be examined in depth. [para. 30]
[32] In his view, a claim for damages based on a breach of a civil obligation, even one with religious aspects, remains within the domain of the civil courts.
[33] Based on the expert evidence, Mass J. concluded that had Mr. Marcovitz sought the get immediately, as he had agreed to do, it would have been granted by the rabbinical court. This meant that the breach of the obligation to appear before the rabbinical authorities was the cause of the damages claimed by Ms. Bruker. Finding that the failure of Mr. Marcovitz to grant the get had direct consequences on Ms. Bruker’s life by depriving her “of the opportunity to marry within her community during this period” (para. 35), Mass J. ordered a total of $47,500 in damages: $2,500 for each of the 15 years between the Decree Nisi and the get, and $10,000 for Ms. Bruker’s inability to have children considered “legitimate” under Jewish law.
[34] I digress to address an issue raised in the dissent. Initially, Mr. Marcovitz challenged the constitutionality of s. 21.1 of the Divorce Act . In agreeing not to pursue his constitutional challenge, Mr. Marcovitz agreed to a court order which contained the following authorizations:
[6] AUTHORIZES that [Mr. Marcovitz] may argue the question of justiciability in his case as if s. 21.1 of the Divorce Act did not exist.
[7] AUTHORIZES that [Ms. Bruker] may argue the question of credibility as to the circumstances in which the ghet was given, with reference to s. 21.1 of the Divorce Act .
It is not the case, as suggested by the dissent, that the parties agreed not to refer to this section. What they agreed to was that Mr. Marcovitz could argue “justiciability” without reference to this section. Ms. Bruker was explicitly authorized to refer to it when arguing about the circumstances surrounding the get. Moreover, Mr. Marcovitz’s factum deals expressly with s. 21.1 in tw