Top court upholds religious divorce agreement
The country'shighest court delivered a landmark ruling Friday upholding a $47,500 award to a Jewish woman whose husband refused for 15 years to grant her a religious divorce.
The case means secular courts have power to rule on breaches of religious promises if people agreed in a civil contract to abide by those promises.
The Supreme Court's ruling is the result of a long-simmering battle overa Montreal woman's quest for damages from her ex-husband, who waited a decade and a half to grant her a "get" — a religious Jewish divorce.
Stephanie Bruker asked the Supreme Court to overturn a ruling by the Quebec Court of Appeal that took away an original award of $47,500 compensation from her ex-husband Jason Marcovitz. The award, granted in 2003 by the Quebec Superior Court, was to compensate Bruker for being unable to remarry or have legitimate children according to Jewish law during those years.
The original trial judge found that their civil agreement was binding, while the Court of Appeal found that because the substance of the obligation was religious, the obligation was a moral one andtherefore unenforceable by the courts.
The Supreme Court, in a ruling supported by seven of the nine judges, essentially agreed with Bruker, reinstating the compensation.
"The consequences to women deprived of a get and loyal to their faith are severe," Madam Justice Rosalie Abella wrote on behalf of the court.
"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."
The pair married in 1969 and agreed to a civil divorce in 1980. In that civil agreement, they said they would appear before rabbinical authorities to obtain a religious get.Marcovitz didn't show and refused for 15 years to grant his ex-wife a get.
Bruker told Maclean's magazine that she believed he was motivated by spite. "Men who do this usually have a lot of hate toward women," she said. "He didn't give me the get because of hate."
Marcovitz, for his part, argues he refused the get because he said Bruker was harassing him and trying to turn their children against him.
He argued further 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.
Justice Abella disagreed: "I am also persuaded that … 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."
Justice Marie Deschamps, writing in dissent, took the opposite view.
"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."