Where Jewish husband had agreed in writing with his Jewish wife, that immediately after their Quebec civil divorce, the husband would grant release from marriage under Jewish Law where he delayed doing so for fifteen years, Supreme Court of Canada upheld award to wife of damages for breach of contract as supported by balance of interests in favor of public order and lack of countervailing religious considerations on husband's part
The parties in this case are Stephanie Brenda Bruker (B), and Jessel Benjamin Marcovitz (M), Canadian citizens who were married in 1969. Civil divorce proceedings were filed in 1980 and three months later, the parties negotiated a Consent to Corollary Relief (CCR). In ¶ 12 of the CCR, both parties agreed to appear right after the civil divorce before the appropriate rabbinical authorities to obtain a Jewish divorce, or get. The civil divorce became final in 1981, when M was 48 and B was 31.
Under Jewish law, a wife cannot obtain a get unless and until her husband voluntarily agrees to give it. Without one, she remains his wife under Jewish law which would not recognize her right to remarry. The husband has an absolute discretion as to whether or not to "release" his wife from the marriage. The process would take place before a Beth Din, or rabbinical court.
For B, an observant Jewish woman in Canada, this presents a paradoxical scenario: under Canadian law, B is free to divorce her husband and remarry irrespective of his consent; under Jewish law, however, B remains married to him until he gives his consent. Jewish law would consider "illegitimate" any children she would have on a purely civil remarriage.
The vast majority of adherents to the Jewish faith condemn this practice of bargaining with the get as unfair. Since the diaspora, however, there is no central Jewish authority to amend the Jewish legal code which governs the get.
In this case, despite B's repeated requests, M consistently refused to provide a get until 15 years had passed, by which time B was almost 47. At this point, B sued for damages in the Quebec courts for breach of ¶ 12 of the CCR agreement. M argued that this agreement to give a get was not valid under Quebec law and that his right to freedom of religion protected him from having to pay civil damages for its breach.
The trial judge held (1) that the CCR was valid and binding and (2) that the civil courts could decide a claim for damages based on a breach of this civil obligation. When M appealed, the Court of Appeal allowed M's appeal. It reasoned that the substance of M's breached obligation was religious in nature. This made M's specified duty purely a "moral" one and thus unenforceable by the civil courts. When B applied to the Supreme Court of Canada, however, it allowed her appeal in a 7 to 2 vote.
The majority opinion then explains its ruling. "There are, ... two issues raised by this case. The first is whether the agreement in the [CCR] to give a get is a valid and binding contractual obligation under Quebec law. If the commitment is legally binding under Quebec law, we must determine whether the husband can rely on his freedom of religion rights to avoid the legal result of failing to comply with a civil 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."
"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."
"[In the majority's 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. ... Such agreements are consistent with public policy, our approach to marriage and divorce, and our commitment to eradicating gender discrimination."
"... Applying ... § 9.1 of the Quebec Charter, any harm to [B'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 honor it."
"This is not, ... 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."
"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 [Canada]. 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."
"This case ... 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 [B] 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. ... " [¶¶ 14 20]
"Based on the expert evidence, [the trial judge] concluded that had [M] sought the get immediately, as he had agreed to do, it would have been granted by the rabbinical court. This meant that [M's] breach of the obligation to appear before the rabbinical authorities was the cause of the damages claimed by [B]. Finding that [M's] failure to grant the get had direct consequences on [B's] life by depriving her "of the opportunity to marry within her [religious] community during this period' [the trial court] ordered a total of $ 47,500 in damages." [¶ 33]
"The fact that ¶ 12 of the [CCR] had religious elements does not thereby immunize it from judicial scrutiny. We are not dealing with judicial review of doctrinal religious principles, such as whether a particular get is valid. Nor are we required to speculate on what the rabbinical court would do. The promise by [M] to remove the religious barriers to remarriage by providing a get was negotiated between two consenting adults, each represented by counsel, as part of a voluntary exchange of commitments intended to have legally enforceable consequences. This puts the obligation appropriately under a judicial microscope." [¶ 47]
"[A respected treatise] explains the difference in enforceability between a moral and civil obligation in the following way: "... A civil obligation is sanctioned by law, which means that the creditor may enforce it in court. In contrast, a moral obligation is outside the legal realm and is not sanctioned by law, and its binding force is based solely on conscience, that is, on remorse."
"The "creditor' of a moral obligation may not seek to enforce it in court, since it can only be performed voluntarily. Moral obligations include the duty to give to charity and the duty to help one's neighbour"which should be distinguished from the civil obligation to assist a person in danger."
"[The majority does] not see the religious aspect of the obligation in ¶ 12 of the [CCR] as a barrier to its civil validity. It is true that a party cannot be compelled to execute a moral duty, but there is nothing in the Civil Code preventing someone from transforming his or her moral obligations into legally valid and binding ones."
"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 complies with the requirements of a contract under the Civil Code of Quebec (C.C.Q.)."
"A contract is defined in Art. 1378, ¶ 1 of the C.C.Q. as "an agreement of wills by which one or several persons obligate themselves to one or several other persons to perform a prestation.'" [¶¶ 50 52]
"[M] argues, however, that, contrary to Articles 1412 and 1413 of the C.C.Q., the "object' of the contractual provision"the attendance of the parties before the rabbinical court to obtain a divorce in accordance with Jewish law to permit remarriage under that law"is against public order because it is a violation of his right to freedom of religion." [¶ 54]
"There are therefore only two limitations on the object of a contract: it cannot be prohibited by law or be contrary to public order. Consistent with the principle of freedom of contract, this offers a wide scope for what is a legally permissible object." [¶ 59]
"What constitutes public order, [cite] is variable: [The content of public order] changes over time, since this concept basically represents certain values at a given point in the evolution of society. Absent any clear indication in the statute, it is the court that assesses whether the provision in question is of public order and determines its concrete effect."
"... [T]here may well be agreements with religious aspects that would be against public order. It will obviously depend in each case on the nature of the undertaking and, in particular, on the extent to which the promise is consistent with our laws, policies, and democratic values. An agreement to resolve a custody dispute in a way that offends a child's best interests, or an agreement that violates our employment laws, for example, will likely be found to be contrary to public order."
"There is no doubt ... however, about [M's] agreement to provide a get. It is consistent with, not contrary to, public order. The 1990 Divorce Act amendments ... contradict the argument that an agreement to grant a get breaches the principle of public order. On the contrary, Parliament manifested a clear intention to encourage the removal of religious barriers to remarriage. Moreover, ... the enforceability of a promise by a husband to provide a get harmonizes with Canada's approach to religious freedom, to equality rights, to divorce and remarriage generally, and has been judicially recognized internationally."
"Accordingly, since the object is not contrary to public order, and since all the other requirements for a valid contract in accordance with Quebec law exist, the contractual obligation contained in [CCR] ¶ 12 is valid and legally binding under Quebec law."
"There remains [M's] argument that he is exonerated by § 3 of the Quebec Charter [on freedom of religion] from the consequences of breaching ¶ 12 of the [CCR]. M asserts that an award of damages would be a violation of his freedom of religion because it would condemn him ex post facto "for abiding by his religion in the first place.'"
"This Court's most recent decision examining the scope of this provision is Syndicat Northcrest v. Amselem, [2004] 2 S. C. R. 551, 2004 S.C.C. 47. Orthodox Jews who owned units in a condominium building in Montréal sought to construct small enclosed structures known as succahs on their balconies for the Jewish festival of Succot. A by law in the declaration of co ownership prohibited them from doing so."
"The test applied by the majority in Amselem examines whether an individual's sincerely held and good faith religious belief is being unjustifiably limited to a non trivial degree. Applying this test to the facts of this case, I see no prima facie infringement of [M's] religious freedom."
"[Query] whether M, in good faith, sincerely believed that granting a get was an act to which he objected as a matter of religious belief or conscience. It is not clear [to the Court] what aspect of his religious beliefs prevented him from providing a get. He never, in fact, offered a religious reason for refusing to provide a get."
"Rather, he said that his refusal was based on the fact that, in his words, "[B] harassed me, she alienated my kids from me, she stole some money from me, she stole some silverware from my mother, she prevented my proper visitation with the kids. Those are the reasons ....'"
"This concession confirms, ... that his refusal to provide the get was based less on religious conviction than on the fact that he was angry at [B]. His religion does not require him to refuse to give [B] a get. The contrary is true. There is no doubt that, at Jewish law, he could refuse to give one, but that is very different from [M] being prevented by a tenet of his religious beliefs from complying with a legal obligation he voluntarily entered into and of which he took the negotiated benefits."
"Even if requiring him to comply with his agreement to give a get can be said to conflict with a sincerely held religious belief and to have non trivial consequences for him, both of which [the Court has] difficulty discerning, such a prima facie infringement does not survive the balancing mandated by this Court's jurisprudence and the Quebec Charter."
"[The majority starts] the balancing analysis with the provenance of this Court's robust interpretation of freedom of religion, R. v. Big M Drug Mart Ltd., [1985] 1 S. C. R. 295, 336 7. "... The essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination.'"
"Notably, [we] also confirmed that religious freedoms were nonetheless subject to limitations when they disproportionately collided with other significant public rights and interests: ... The values that underlie our political and philosophic traditions demand that every individual be free to hold and to manifest whatever beliefs and opinions his or her conscience dictates, provided, inter alia, only that such manifestations do not injure his or her neighbours or their parallel rights to hold and manifest beliefs and opinions of their own. [Id at 346; Emphasis added by Court.]" [¶¶ 61 72]
"[M's] claim must therefore be weighed against the "democratic values, public order and the general well being of the citizens of Québec' stipulated by § 9.1. We thereby enter the complex, nuanced, fact specific territory referred to at the outset of these reasons.
"[M] ... has little to put on the scales. To begin, he freely entered into a valid and binding contractual obligation and now seeks to have it set aside based on ex post facto religious compunctions. In [our] view, it is this attempt to resile from his binding promise, not the enforcement of the obligation, that offends public order."
"But the public policy benefit of preventing individuals from avoiding the usual legal consequences of their contractual breaches, is only one of the factors that weighs against his claim. The significant intrusions into our constitutionally and statutorily articulated commitments to equality, religious freedom and autonomous choice in marriage and divorce that flow from the breach of his legal obligation are what weigh most heavily against him."
"Section 21.1 of the Divorce Act, which gives a court discretionary authority to rebuff a spouse in civil proceedings who obstructs religious remarriage, is a clear indication that it is public policy in this country that such barriers are to be discouraged. ... [T]hese amendments received overwhelming support from the Jewish community, including its more religious elements, reflecting a consensus that the refusal to provide a get was an unwarranted indignity imposed on Jewish women and, to the extent possible, one that should not be countenanced by Canada's legal system."
"We also accept the right of Canadians to decide for themselves whether their marriage has irretrievably broken down and we attempt to facilitate, rather than impede, their ability to continue their lives, including with new families."
"Moreover, under Canadian law, marriage and divorce are available equally to men and women. A get, on the other hand, can only be given under Jewish law by a husband. For those Jewish women whose religious principles prevent them from considering remarriage unless they are able to do so in accordance with Jewish law, the denial of a get is the denial of the right to remarry. ... [Such a] the law has a disparate impact on women."
"There is also support internationally for courts protecting Jewish women from husbands who refuse to provide a religious divorce. The use of damages to compensate someone whose spouse has refused to provide a get was upheld by the European Commission of Human Rights. In D. v. France, 35 Eur. Comm. H. R. D. R. 199, 202 (1983), the husband had been ordered by a French court to pay his ex wife 25,000 francs to compensate her for his refusal to deliver a get. The husband [unsuccessfully] applied to the Commission, arguing that his right to freedom of conscience and religion under the European Convention on Human Rights was violated by this award of damages. ..." [¶¶ 78 83]
"In the United Kingdom, courts have also been willing to attach civil consequences to a husband's refusal to provide a get and have recognized that the inability to remarry within one's religion represents a serious compensable injury. Cf. Brett v. Brett, [1969] 1 All E. R. 1007. ..." [¶ 86]
"American courts, relying primarily on the rationale that obtaining a get is not solely a religious act but one that has the secular purpose of finalizing the dissolution of the marriage, have been willing to order parties to submit to the jurisdiction of the Beth Din. In Avitzur v. Avitzur, 459 N.Y.S.2d 572 (1983) , the New York Court of Appeals found that a clause in a Jewish marriage contract, requiring both parties to appear before the Beth Din upon the breakdown of the marriage for the purposes of obtaining a get was enforceable and did not violate the constitutional prohibition against excessive entanglement between church and state." [¶ 88]
"[M] cannot, therefore, rely on the Quebec Charter to avoid the consequences of failing to implement his legal commitment to provide the get."
"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 interests and values that outweigh [M's] claim that enforcing ¶ 12 of the CCR would interfere with his religious freedom."
"Despite the moribund state of her marriage, [B] remained, between the ages of 31 and 46, [M's] wife under Jewish law, and dramatically restricted in the options available to her in her personal life. 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. Any infringement of [M's] freedom of religion is inconsequential compared to the disproportionate disadvantaging effect on [B's] ability to live her life fully as a Jewish woman in Canada." [¶¶ 91 93]
Citation: Bruker v. Marcovitz, 2007 S. C. C. 54; [2007] S. C. J. No. 54 (Sup. Ct. Can. Dec. 14, 2007).
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