Supreme Court upholds ruling in Jewish divorce case

Elizabeth Thompson, The Gazette

Published: Friday, December 14, 2007

In a 7-2 decision Friday morning, the Supreme Court of Canada upheld a $47,500 award to a Jewish woman whose ex-husband had refused to grant her a religious divorce while she was still capable of having children.

The Quebec Court of Appeal had overturned the original ruling.

The case centred on a Jewish couple from Montreal who were married in 1969 and who divorced under Canadian law in 1980. However, Stephanie Bruker sued her ex-husband Jessel Marcovitz after he refused for 15 years to agree to give her a get or religious divorce before rabbinical authorities. Bruker argued that without the get she was prohibited from marrying again in the Jewish faith or having more children.

Marcovitz finally provided Bruker a get in 1995 when she was almost 47 years old.

At the core of the case was the question of whether religious obligations should be enforceable in Canada's courts.

The first judge who heard the case found that the case was justiciable in civil courts, that Marcovitz had breached his contractual obligations and awarded Bruker $47,500. However, the Quebec Court of Appeal overturned the ruling, saying the obligation to grant Bruker a get was a religious one and was not a matter for the courts.

Supreme Court Justice Rosalie Abella ruled that "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."

Abella ruled 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.

 Abella said that the consequences for Bruker of not being granted the get were much greater than the impact on Marcovitz's freedom of religion..

"Despite the moribund state of her marriage. Ms. Bruker remained, between the ages of 31 and 46, Mr. Marcovitz's wife under Jewish law and dramatically restricted in the options available to her in her personal life. This represents 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 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."


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