Religion, State, Gender Equality & Damages for Court Order Breach

A Commentary on Bruker v. Marcovitz

[1] The author argues that the Supreme Court of Canada has embroiled the state in the affairs of religion in a manner that not only portends more extensive violations of religious freedom but in the process also strikes a blow against gender equality. The religion issue should not have arisen in the first place. A prior Supreme Court of Canada decision negated damages for court order violations; the Supreme Court of Canada appears to have disregarded that precedent in this case. The case could have been decided only upon the basis of the breach of contract without bringing religion and the male-female dialectic into the mix.

INTRODUCTION

In its recent decision of Bruker v. Marcovitz, the Supreme Court of Canada has waded into a murky and potent admixture of crucial issues:

• religious autonomy versus state intervention;
• gender equality; and
• the inclination of a court to ignore its own precedent in order to reach an outcome deemed to be socially desirable.

In the majority decision penned by Justice Rosalie S. Abella, the court punished Mr. Marcovitz because he disobeyed a court order, entered into on consent, that required him to attend before a Bet Din (a rabbinical court) for the purpose of completing the “Get” (Jewish bill of divorce) ceremony. In order to punish him in a manner that placed damages into the hands of his former spouse as opposed into state coffers (as would be the situation if he were found in contempt), the court had to ignore its own precedent of Frame v. Smith[2] and questionably to characterize the case as a “breach of contract”. In reality, the case should not have been characterized as “breach of contract”; on the contrary, it is truly a case where a litigant failed to abide by a consent court order. A further disquieting complication in Justice Abella’s decision might have been the injection of gender issues that one might want to test by asking whether the result of this appeal would be the same if the genders of the parties had been reversed.

Should the state in any way supervise the civil consequences of an ex-spouse’s failure to fulfill a religious commitment, albeit a commitment that was undertaken within the civil context?

Religious Autonomy Versus State Intervention

Where a dispute between a divorcing couple encompasses apparent religious conflict, what is the proper role of the secular court? Although some have described the giving of a “Get” as something separate from religion, there can be no mistaking that the act is not secular but decidedly religious in nature. The giving of the Get is essentially a religious commitment that is governed by Jewish law and practice.[3] Should the court enforce through damages an activity that is essentially a religious matter? Should secular law strive to remedy perceived disadvantages suffered by Jewish women under Jewish law? Should the Jewish community welcome the intervention of the secular court in its affairs or will such intervention constitute the proverbial “thin wedge”?

Gender Equality and Gender Bias

Not only does this troubling case raise issues of religious freedom, but it also has frighteningly dangerous implications with respect to fair treatment between women and men. Justice Abella appears to demand equality of treatment for Jewish women but a review of her reasons reveals a most unfortunate generalized undertone of vilification of men. Would the decision have been different if the man were the aggrieved party? A careful reading of Abella J.’s reasons leaves one with the distinct impression that a man would not have succeeded on similar facts. The court appears to sanction one law for women and another one for men. Such gender bias must surely be contrary to basic equality principles under the Canadian Charter of Rights and Freedoms.

Breach of Contract invoked to avoid a Supreme Court of Canada precedent

If a matrimonial litigant violates a consent court order, should the court award damages for what the Supreme Court of Canada has characterized as “breach of contract”? Was there truly a breach of contract in the Bruker v. Marcovitz case? Or, did the court take an intellectually compromised approach in order to avoid its own precedent in Frame v. Smith[4] where the court held that damages were not available for breach of a court order? Why was it necessary to examine section 21.1 of the Divorce Act[5] if the case were simply one of breach of contract?

THE FACTS

The parties married on July 27, 1969 and cohabited for about ten years. The Quebec Superior Court granted a decree nisi of divorce on October 23, 1980. To their credit, the parties entered into a settlement. Attached to the divorce decree was a “Consent to Corollary Relief” dated contemporaneously[6] with the decree nisi. Paragraph 12 of that consent was at the heart of this case. It stated:

The parties appear before the Rabbinical authorities in the City and District of Montreal for the purpose of obtaining the traditional religious Get, immediately upon a Decree Nisi of Divorce being granted.

In July 1989, some eight years after the decree nisi, yet prior to the enactment of section 21.1 of the Divorce Act, Ms Bruker commenced an action against Mr. Marcovitz for damages for “breach of the Consent”.[7] Mr. Marcovitz brought a child support variation application in November 1995. On December 5, 1995, he attended before the rabbinical court and gave the Get. Ms Bruker continued with her damages action and it came to trial in 2003. Justice Mass approached the case as one of a contract whose terms had been breached, albeit the term in issue was of a religious nature. His Honour awarded damages of $47,500 on account of Marcovitz’s having deprived Bruker “of the opportunity to marry within her community” for a fifteen-year period – that is, $2,500 x 15 = $42,500 plus $10,000 for her inability to have children considered “legitimate” under Jewish law.[8] The Quebec Court of Appeal allowed the ex-husband’s appeal and the ex-wife then appealed to the Supreme Court of Canada where the damages award was reinstated and costs were awarded in her favour.[9]

THE NATURE OF THE COURT ORDER

In order to properly understand the full implications of this case and this author’s criticism of the court’s approach to the breach of the settlement willingly entered into both sides, it is necessary to appreciate just how relief other than the divorce simpliciter is judicially implemented in the province of Quebec[10]. In Quebec, as strange as this may sound for lawyers in the common law provinces, the parties are not at liberty to enter into separation agreements. Of course, the parties are indeed encouraged to settle their disputes without a trial and that is just what they did in this case. In Quebec, negotiations are conducted and when an agreement is reached, the lawyers arrange for the settlement document to be attached to the divorce judgment. The document is called, “Consent to Corollary Relief”. This author therefore maintains that the consent naturally constitutes an integral part of the court order. The divorce judgment orders the parties to comply with their undertakings given in that attached “Consent to Corollary Relief”. This author maintains that this is essentially no different than the practice in Ontario wherein a judge will endorse the record: “Order to go in terms of consent filed.”

In Quebec, both spousal and child support are collected by the Ministry of Revenue. In order to access that enforcement regime, there must be a court judgment. The terms of this court judgment are often incorporated into “Consent to Corollary Relief”.

In Quebec, if the parties choose to transfer an RRSP from one spouse to another on a tax free roll over basis, not only must they complete the requisite documents under the Income Tax Act, but they must also include such terms in their “Consent to Corollary Relief”. Failing to do so will enable the Revenue Minister to deregister one’s RRSP. Thus we see that transfer of property under provincial statute also must come within the rubric of the “Consent to Corollary Relief”. In Quebec, division of family patrimony (or family property) generally can take place only as part and parcel of the divorce judgment. The terms are incorporated into the “Consent to Corollary Relief”.

The provision requiring the parties to implement the granting and receiving of the Jewish bill of divorce, being attached to the divorce decree nisi and forming part of that order, became an order of the Quebec Superior Court. The author maintains that this is no different in pith and substance than any of the other steps that the parties undertook to take in finalizing the issues that arose from their separation and divorce. Justice Abella noted that the decree nisi “ordered the parties to comply with the Consent”.[11] What could be clearer? When Marcovitz failed to obey this court order that clearly demanded compliance with the schedule to the divorce judgment, Marcovitz must surely have been in contempt of court. He was no more in breach of contract here than he would have been had he failed to pay the child support that had been agreed to in the very same document.

Early in this case, when the ex-husband had failed to attend at the rabbinical court in violation of the court order, the ex-wife quite properly brought an application to find the ex-husband in contempt.[12]

When he applied to vary his child support obligations in 1990 (the two children having ceased to live with their mother), the terms that Marcovitz was seeking to vary were the very same support terms as were stipulated in that very same “Consent to Corollary Relief”.

This author argues that the provision in that very same “Consent to Corollary Relief” to attend “before the Rabbinical authorities”, had per force to be nothing less than a perfectly legal and proper order of the Superior Court of the Province of Quebec. Mr. Marcovitz’s wilful failure to obey that order ought to have attracted all the consequences that contempt of court implies. It ought not, in the light of Frame v. Smith (discussed below), to have attracted a law suit for damages unless the court would have taken the intellectually honest approach to specifically over rule Frame v. Smith.

Of course, both the trial judge and the Supreme Court of Canada took an entirely different view than the argument presented here by Gene C. Colman. This author respectfully maintains that by so brazenly distorting the import of a consent order, both courts constructed a grave injustice to basic fairness and to our bed rock principle of stare decisis.

THE LAW: FRAME V. SMITH

Parties should be obliged to comply with court orders. It is a reasonable expectation that, if party A disobeys a court order, then party B should have effective means to enforce compliance with the order. In Bruker v. Marcovitz, the ex-husband ultimately complied with the order after many years. The ex-wife claimed that she suffered damages on account of Marcovitz’s failure to comply earlier. The trial court and then the Supreme Court of Canada confirmed that she was indeed entitled to damages.

In Frame v. Smith, the mother flagrantly breached court orders to afford access to the father. Faced with multiple breaches, the father quite reasonably sued the mother for damages,[13]

[160] … alleging that he had been forced to incur considerable expense and had suffered emotional distress because the mother and her new spouse had interfered with the relationship he wanted to have with his children. Among other things, the mother had changed the children’s surname and their religion and had denied that her former husband was their father. The Court nonetheless held that, for rights arising under the Divorce Act and under provincial legislation governing the consequences of separation and divorce, remedies are limited to the schemes adopted by Parliament and the provincial legislatures (p. 112).

The Divorce Act does not contain provisions with respect to restraining the change of a child’s name. The Act does not contain a provision with respect to changing a child’s religion. Yet courts across this country regularly grant such orders on consent or otherwise as a perfectly reasonable incident of custody and status. I would argue that likewise, the requirement by way of a consent order to attend before a rabbinical court is equally ancillary to the relief granted upon marriage breakdown, even if one could not point at the time to a specific provision in the Divorce Act that authorized such a clause. As a matter of public policy, should a court enforce only those provisions that can readily relate to a specific section of the Divorce Act and let the parties breach at will other provisions either freely consented to or as ordered by the court? Court orders ought to be obeyed.[14]

Frame v. Smith tells us that a father cannot obtain damages for blatant breaches of a child access order. The father can certainly bring a contempt application. He can move for a change in custody. These are heads of relief that are known to the federal and provincial matrimonial statutes. But, he cannot claim damages! Frame v. Smith should have presented a serious roadblock for Ms Bruker. Regrettably, the majority judgment in Bruker v. Marcovitz ignored it for reasons that are difficult to fathom. The majority was certainly aware of the existence of Frame v. Smith if no other reason that the minority panel had referred to it. The minority, however, distinguished Frame v. Smith.

Under Frame v. Smith, damages for failure to comply with a court order should have been precluded whether the alleged breach of the order (and it was indeed an order) was based on a religious tenet or upon any other principle.

The trial judge in Bruker v. Marcovitz quickly (and, with respect, I say somewhat cavalierly) dismissed Frame v. Smith as a blockage to relief. Justice Mass rejected the defence argument that, since section 21.1 of the Divorce Act provided a remedy, there could be no other remedy. The trial judge correctly noted that section 21.1 was not the basis of the wife’s claim. As noted, the majority in the Supreme Court of Canada in Bruker v. Marcovitz did not even bother to refer to Frame v. Smith.

The minority, incorrectly in my view, found that the incorporation of paragraph 12 of the consent into the decree nisi, did not make the provision enforceable as part of the decree nisi under the Divorce Act. Rather, paragraph 12 of the consent, to the extent that it could anchor a cause of actionable damages, would have to serve as the basis for a separate action totally outside of the Divorce Act. Such an analysis does a mammoth disservice to family law litigants across Canada. They expect that all agreed upon items, to the extent that the court makes those agreements into court orders, will fully and equally attract the attention of the court in the case of a breach.

Justice Julie Deschamps, for the two-judge minority, wrote:[16]

[161] However, the undertaking to appear before the rabbinical authorities is unrelated to the rights and obligations arising under the Divorce Act or the Civil Code. The incorporation of this undertaking into the corollary relief agreement does not have the effect of making it a right or obligation provided for in the Divorce Act or the Civil Code, nor does the undertaking, as a result of this incorporation alone, constitute relief corollary to the divorce. If clause 12 can serve as the basis for a separate action, that action cannot be based on the fact that the clause is incorporated into the corollary relief agreement. It must be regarded as an autonomous clause. To form the basis of a separate civil action, the clause must satisfy the requirements of the civil law. Since the case originates in the province of Quebec, the applicable law is the law of contracts in the civil law, not at common law.

Excising part of a perfectly valid court order from the corpus of a court order is dangerous. The minority tells us (and presumably the majority would have agreed since the majority did not see Frame v. Smith as a blockage to relief) that a paragraph of an order that comes squarely within the rubric of the Divorce Act, may be enforced using the enforcement measures available under statute in a province. But if the paragraph does not come within the four corners of the Divorce Act or provincial matrimonial legislation, it may be enforced as a separate contract by way of a damages claim. In other words, according to this analysis, some parts of a divorce order will attract court supervision by way of contempt or variation or orders to comply, while other parts of a divorce order may constitute stand-alone contracts where the aggrieved party may sue for damages.

If I may be permitted to insert a side note here – Justice Deschamps analyzed the four constituent elements for formation of a contract under Quebec contract law. She found that one of the four elements to found a contract in Quebec law was missing: “Something which forms the object of the contract.”[17] Justice Deschamps stated:[18] “Obtaining a religious divorce is not capable of legal characterization.” Therefore, when the parties agreed to paragraph 12, they “did not agree on an operation recognized in civil law.”[19] “The undertaking to appear before the religious authorities is therefore not a contract as the appellant argues, and as the majority accept.”[20] Thus, had Justice Deschamps been in the majority, the holding would have been that there was no valid contract under the Quebec law.

We are left with the position that the majority ignored Frame v. Smith. The minority danced around it in such a way as to diminish the importance of court orders in family law.[21] Frame v. Smith told us that you cannot obtain damages for breach of a family law court order. Bruker v. Marcovitz stands for the proposition that you can indeed be awarded damages for breach of a family law court order at least if you characterize the cause of action as breach of contract and find there to be a valid contract.[22]

WAS FREEDOM OF RELIGION A PROPER FACTOR TO CONSIDER ON THE FACTS OF THIS CASE?

The trial court found as a fact that Mr. Marcovitz had disobeyed paragraph 12 of the consent agreement. Paragraph 12 was part of a court order. The proper legal remedy was “contempt”. Since Frame v. Smith says you cannot obtain damages for violating a court order within the family law context, the claim for damages should never have been allowed to proceed. The issue of freedom of religion should never have arisen.

Stephanie Bruker claimed that she was not free to remarry within her faith on account of Jason Marcovitz’s failure to give her a Get. Jason Marcovitz claimed that his religious freedom was being compromised by having been required to comply with paragraph 12. After reading both the trial judgments and the Supreme Court of Canada reasons and discussing this case with counsel for each party, this author must conclude that religious principles were truly the furthest thing from each litigant’s mind.[23] One might argue that this author is indeed arrogant by purporting to discern the intentions of the litigants. Yet, according to the analysis of Justice Abella, it is perfectly legitimate to examine the court record and comment upon those intentions. It is to that issue that we now turn.

A secular court should not delve unduly into the religious beliefs of a litigant, so long as those beliefs are honestly held. See Syndicat Northcrest v. Amselem, 2004 SCC 47; [2004] 2 S.C.R. 551, at paragraphs [47]-[51]:

[47] … An inquiry into the mandatory nature of an alleged religious practice is not only inappropriate, it is plagued with difficulties. Indeed, the Ontario Court of Appeal quite correctly noted this in R. v. Laws, 1998 CanLII 7157 (Ont. C.A.), (1998), 165 D.L.R. (4th) 301, at p. 314:
There was no basis on which the trial judge could distinguish between a requirement of a particular faith and a chosen religious practice. Freedom of religion under the Charter surely extends beyond obligatory doctrine.

[48] This is central to this understanding of religious freedom that a claimant need not show some sort of objective religious obligation, requirement or precept to invoke freedom of religion. Such an approach would be inconsistent with the underlying purposes and principles of the freedom emphasizing personal choice as set out by Dickson C.J. in Big M and Edwards Books.

[49] To require a person to prove that his or her religious practices are supported by a mandatory doctrine of faith, leaving it for judges to determine what those mandatory doctrines of faith are, would require courts to interfere with profoundly personal beliefs in a manner inconsistent with the principles set out by Dickson C.J. in Edwards Books, supra, at p. 759:

The purpose of s. 2(a) is to ensure that society does not interfere with profoundly personal beliefs that govern one’s perception of oneself, humankind, nature, and, in some cases, a higher or different order of being. These beliefs, in turn, govern one’s conduct and practices. [Emphasis added.]

[50] In my view, the State is in no position to be, nor should it become, the arbiter of religious dogma. Accordingly, courts should avoid judicially interpreting and thus determining, either explicitly or implicitly, the content of a subjective understanding of religious requirement, “obligation”, precept, “commandment”, custom or ritual. Secular judicial determinations of theological or religious disputes, or of contentious matters of religious doctrine, unjustifiably entangle the court in the affairs of religion.

[51] That said, while a court is not qualified to rule on the validity or veracity of any given religious practice or belief, or to choose among various interpretations of belief, it is qualified to inquire into the sincerity of a claimant’s belief, where sincerity is in fact at issue: see Jones, supra; Ross, supra. It is important to emphasize, however, that sincerity of belief simply implies an honesty of belief: see Thomas v. Review Board of the Indiana Employment Security Division, supra. [author’s emphasis]

Justice Abella had no problem quickly disposing of the insincerity of Mr. Marcovitz’s religious freedom claim. She cited Amselem and then stated [author’s emphasis added]:[24]

[67] 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 Mr. Marcovitz’s religious freedom.

[68] I start by querying whether Mr. Marcovitz, 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 me 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,

Mrs. Bruker 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 … [A.R., at p.66]

[69] This concession confirms, in my view, that his refusal to provide the get was based less on religious conviction than on the fact that he was angry at Ms. Bruker. His religion does not require him to refuse to give Ms. Bruker 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 Mr. Marcovitz 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.

Justice Abella found (and quite rightly in this author’s view) that the ex-husband’s claim for religious freedom was bogus. Having properly made the inquiry into the bona fides of the ex-husband’s claim to having his religious freedom violated, should not in fairness the court have made a similar inquiry into the good faith of the ex-wife?

What about the ex-wife’s claim of suffering damages due to being deprived of the opportunity to remarry as an Orthodox Jew? This author suggests that Ms Bruker’s lifestyle was so far removed from basic Jewish tenets that religious scruples could not have legitimately and conceivably formed a realistic and accurate philosophical underpinning for her damages claim. The fact that she was prevented from remarrying within what the court presented as her faith (Orthodox Judaism) did not prevent her from engaging in numerous affairs and other activities that were entirely outside the pale of Orthodox Judaism. The author is not criticizing the behaviour; a secular society really does not care who ‘sleeps’ with whom. Of course, she was free to behave in any manner within Canadian society that she chose. Rather, the author is suggesting that the Ms Bruker’s behaviour simply betrayed a lack of basic sincerity of belief within the meaning of Amselem.

Justice Abella did not question Ms Bruker’s religious sincerity, and the Supreme Court judge certainly relied on it throughout her judgment. Here are some examples [author’s emphasis]:

[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.

…

[21] … Although their degrees of observance differ, both consider themselves to be religious Jews.

In her dissenting judgment, Justice Deschamps delicately hinted to the ex-wife’s unconventional lifestyle: “The appellant worked as an interior decorator and led an active life marked by unconventional behaviour.”[25] Excerpts (at paragraph [113] of the reasons of Justice Deschamps) from the trial decision were presented where we learn more of the ex-wife’s behaviour:

[47] Matters of religious conscience must be left to the adult parties invoking them and not be imposed by others. Plaintiff has satisfied the Court that despite her many deviations from the doctrines and precepts of the Orthodox Jewish Community — her abortion, extra‑marital affairs, use of contraceptives, etc. — Plaintiff was and remained a member of the Orthodox branch of the Jewish community, that she therefore had the right to remarry before a rabbi of that community and to do so, would have needed a Get from a Beth Din recognized by such community.

We learn a little more from the trial judgment:[26]

[44] From the evidence brought before the Court, Plaintiff’s enjoyment of life was in no way diminished by her failure to obtain her Get. Indeed, she testified that, during the relevant period, she had many male lovers, many friends, an active social life and engaged in various business activities. While the various medical records produced show that she was going through some emotional turmoil during the relevant period, such turmoil was to a large part due to her self questioning, her seeking to satisfy her sexual appetites and needs, and her role in society generally.

Although Marcovitz’s claim to religious freedom was so summarily dismissed, the ex-wife’s behaviour, even though it was totally outside the pale of acceptability within Orthodox Judaism, was nonetheless effectively ignored. On the basis of Amselem, the court was reluctant to delve into the ex-wife’s sincerity with respect to her purportedly religious motives, but Justice Abella felt no such compunction when it came to the ex-husband.[27]

The ex-wife’s claim to violation of her right to remarry as a motivation for this case should have been just as suspect on the facts as the ex-husband’s claim that religious freedom motivated his refusal to give the Get.

These were not the best facts in this world upon which to adjudicate a freedom-of-religion issue and the Supreme Court of Canada should have refrained from doing so. The case as reported really told us (in the author’s view) that the ex-wife was truly motivated by money. The case also told us that the ex-husband was motivated less by any feelings of violation of religious principles than by annoyance with his former spouse for interfering with his relationship with the children. Both sides used religion as a sword. Neither side’s truly religious sensibilities were really violated.

UNEQUAL TREATMENT OF MEN AND WOMEN

A powerful theme of Justice Abella’s majority reasons is that Jewish law discriminates against women and that it is only Jewish women who are disadvantaged by their recalcitrant husbands who unreasonably withhold the giving of the Get. Surely there are such cases. But ignoring the reverse situation is less than fair. The problem affects men and women alike. Neither spouse ought to place barriers in the way of the other to remarry within his or her faith. At the time that advocates were urging Parliament to pass s. 21.1 of the Divorce Act, approximately one third of the affected individuals were husbands who could not remarry because of a recalcitrant wife.[28]

This author respectfully maintains that, if the court is going to grant damages for breach of contract arising from unfulfilled undertakings ordered in a court judgment, then the gender of the innocent party should make no difference.

Justice Abella characterized the religious evil in need of eradication as recalcitrant Jewish men who refuse to give their wives a Jewish bill of divorce.[29] Her reasons were not exactly gender-neutral. Justice Abella added:

[63] . . . Moreover, as amplified later in these reasons, 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.

Further on, she added:

[81] 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. As the comments of the then Ministers of Justice show, these 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.

[82] 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. It is true that get also requires the consent of the wife, but as Ayelet Shachar points out in Multicultural Jurisdictions, the law has a disparate impact on women:

The family law realm … vividly illustrates the troubling paradox of multicultural vulnerability, by demonstrating how well-meaning attempts to respect differences often translate into a license for subordination of a particular category of group members – in this instance, primarily women. [p. 62]

The refusal of a husband to provide a get, therefore, arbitrarily denies his wife access to a remedy she independently has under Canadian law and denies her the ability to remarry and get on with her life in accordance with her religious beliefs.

Justice Abella then brought forth a number of cases from other jurisdictions where the courts have assisted Jewish women who were faced with husbands who would not give the Get.[30] Following the presentation of an interesting array of cases from around the world, Justice Abella concluded this part of her analysis, making it very clear to the reader that her reasoning can apply to women only:

[92] 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 Mr. Marcovitz’s claim that enforcing Paragraph 12 of the Consent would interfere with his religious freedom.

Justice Abella minimized the fact that, according to Jewish law, the wife must willingly accept the Get. This author argues that the refusal to accept the Get ties the husband to the wife just as much as the husband’s refusal to give the Get ties her to him. After Justice Abella decided that non-compliance with a paragraph in a divorce order can found a claim for damages (notwithstanding Frame v. Smith), she continued to base her decision on what appeared to be the parties’ genders. This author argues that it should not matter one iota what gender each party happens to be.

One must assume that Justice Abella was attempting to use the secular law to help resolve a social problem. Naturally, one must admire Justice Abella and the Supreme Court of Canada for taking such a bold stance that was surely designed to achieve equity and fairness for Jewish women. What the court may not have fully appreciated was that they may very well have created an even larger problem: In Jewish law, the husband must give the Get willingly; the wife must accept it willingly. When faced with pressure from a civil court, a person who gives or receives the Get against his or her free will has participated in a “Get meusa” or “forced Get”. Such Gets are voidable in Jewish law.[31]

This author has previously brought to the attention of the legal community the dangers inherent in the unsupervised use of section 21.1 of the Divorce Act.[32] If a lawyer simply brings a section 21.1 motion without express direction from the Rabbinical Court, then any Get subsequently given will likely be voidable. The claim for damages, if filed prior to the Get ceremony, would also likely constitute grounds for voiding the Get. The precedent set in Bruker v. Marcovitz may constitute a further stumbling block placed in the path of lawyers and their Jewish clients who may not be fully familiar with the intricacies of Jewish law. Indeed, the state’s commendable desire to ameliorate a problem will have created a bigger problem than that sought to be remedied.

CHURCH AND STATE ROLES BLURRED

Once the civil court is purporting to assist one religion, perhaps this could be characterized as an impermissible mix of the powers of church and state. Once Jews seek out the assistance of the secular court to impose damages for what has been characterized as breach of contract, is that not welcoming the thrust of the thin edge of the wedge, so to speak? One litigant is asking the secular court to determine that religious sensibilities were violated. That litigant is asking the secular court to impose damages for failure to perform an essentially religious act. To contrast the Supreme Court of Canada’s interventionist approach, consider the decision of the Ontario Superior Court of Justice in Levitts Kosher Foods Inc. v. Levin where the court decided (correctly in this author’s view) that matters of religious belief and practice belong squarely within the jurisdiction of the Rabbinical Court.[33]

The extent of damages in Bruker, if one characterizes the issues under the rubric of “breach of contract”, ought to have been litigated in the Rabbinical Court in order to accord with the sensible principles set out in Levitts Kosher Foods. Keeping religious matters within the particular community makes sense from the perspective of keeping secular and religious matters distinct. On the other hand, if the act being complained of was simply a blatant violation of a court order and the parties were not inclined to seek redress from the Rabbinical Court, then the remedy within the secular court should have been a contempt application. In that event, the only issue should have been whether the defendant had violated the court order wilfully. (Either choose the “contempt” remedy or be honest about the nature of the relief being sought and ask the Supreme Court of Canada to overturn its judgment in Frame v. Smith.)

Once a Jewish litigant asks the secular court to intervene and adjudicate the economic effects of failure to give (or receive) a Get, then what is to prevent a secular court from adjudicating on the humaneness of male ritual circumcision (commanded by G-d to be performed on all Jewish males since the time of Abraham)? Perhaps an alienated Jew can bring a damages claim against the mohel (the person who performs the circumcision) for performing an operation without his consent? What is to prevent a secular court from adjudicating with respect to the ritual slaughter of animals that produces kosher meat? The more that Jews invite the secular court in to adjudicate what are essentially religious issues, the more that their freedom of religion may ultimately become compromised.[34]

CONCLUSIONS

The breach-of-contract issue was inextricably intertwined with the gender bias issue since Frame v. Smith forbade damages for breach of a family issues order (where the man was the aggrieved party). Justice Abella did not discuss the situation where the woman might refuse to receive the Get, thus thwarting the man’s opportunity to remarry within his faith. If one reads the reasons in their entirety, one could conclude that Justice Abella would not have likely granted the same relief to a man.

The majority characterized Bruker as a breach of contract matter. This author has argued that the case ought to have been decided based simply on the fact that Mr. Marcovitz disobeyed a court order. Frame v. Smith stood squarely in the way of the majority granting monetary damages on account of an order’s breach. Therefore, the cause of action could not be styled as ‘breach of a court order’. Men could arguably perceive both the majority and the minority analyses as unfair and gender-biased in light of Frame v. Smith’s admonition against granting damages for breach of a court order. Thus, Bruker v. Marcovitz promoted (surely inadvertently) disrespect for the administration of justice and reinforced the view of some disaffected observers that they cannot obtain justice from the courts because of their gender.

If one views the Bruker v. Marcovitz decision as a simple breach-of-contract matter (and to do that, one needs to ignore that we were really addressing the violation of a court order by Mr. Marcovitz) and the court then simply assessed damages for that breach of contract, then the decision could be viewed as reasonable (if we forget about Frame v. Smith). Unfortunately, the legal analysis went far beyond a mere exposition of “breach of contract”. The statutory provisions dealing with the issue of removing barriers to remarriage within one’s faith were discussed and indeed relied upon as setting a standard of behaviour expected from the ex-husband only. The analysis embroiled matters of alleged (and the author maintains inaccurate) discrimination within the Jewish religion against women and to remedy that perceived injustice, Justice Abella appeared to discriminate against men. We were therefore left with the situation where the court awarded damages for breach of a court order — something that Frame v. Smith had previously negated.

It is indeed most unfortunate that this case came to turn ostensibly upon religion. Neither litigant could or should be characterized as a poster boy or girl for the causes that he or she supposedly espoused. This author has argued that the Amselem doctrine should have applied equally to both parties so that true gender equality would have been established. This case had bad facts and we all know what bad facts make!

[1] * Gene C. Colman practises family law in Toronto. He gratefully acknowledges the editorial assistance of Roman Komar.
Bruker v. Markovitz, 2007 SCC 54, 52 C.C.L.T. (3d) 1, [2007] S.C.J. No. 54, 2007 Cars­well­Que 11548 (S.C.C.).

[2] Frame v. Smith, [1987] S.C.J. No. 49; [1987] A.C.S. no 49; [1987] 2 S.C.R. 99; [1987] 2 R.C.S. 99; 42 D.L.R. (4th) 81; 78 N.R. 40; 23 O.A.C. 84; 42 C.C.L.T. 1; [1988] 1 C.N.L.R. 152 p; 9 R.F.L. (3d) 225; 1987 CanLII 74 (S.C.C.).

[3] Deuteronomy 24:1 tells us that if a man divorces a woman, he must write for her a bill of divorce and present it “into her hand”. Based on this Scriptural source the Talmud, in Tractate Gittin, prescribes the myriad ritual requirements for an effective divorce. These requirements are then enumerated in Shulchan Aruch, the Code of Jewish Law, in Even HaEzer Section 119 – 154.

[4] Frame v. Smith, supra, fn. 2.

[5] Section 21.1 of the Divorce Act requires a spouse to remove the barriers to the remarriage of the other spouse within his or her religion to the extent to which such removal is in the control of the first spouse. Ontario’s Family Law Act has similar provisions – subsections 2(4) to (7); and 56(5) to (7).

[6] Re the date, see the trial reasons of Justice Israel S. Mass at [2003] R.J.Q. 1189, [2003] R.D.F. 342, [2003] Q.J. No. 2896, 2003 Cars­well­Que 663 (Qué. Sup. Ct), at paragraph [4]. The reasons in the S.C.C. claim state that the agreement was made earlier — on July 15, 1980 — and that shortly after the agreement was signed the parties’ relationship deteriorated and the husband did not appear before the rabbinical court to give the Get. See S.C.C. reasons at para 23 (majority), and 107, 108 (minority).

[7] Para 26. Or, as the Trial Judge phrased it at para 1 of the trial reasons: “Alleging a breach of an obligation assumed in a Consent to Corollary Relief confirmed by the Court by way of a Decree Nisi, Plaintiff seeks damages from Defendant in the amount of $1,350,000.00.” [author’s emphasis]

[8] Para 33, 111 – 114.

[9] Para 36 – 38, 115 – 118

[10] The author gratefully acknowledges the assistance of Anne France Goldwater, counsel for Mr. Marcovitz, with respect to the explanation re divorce practice and procedures in the province of Quebec.

[11] Para 24. See also the minority reasons at para 157: “The clause in issue is found in a corollary relief agreement incorporated into a decree that orders the parties to comply with their undertakings. Orders concerning relief corollary to divorce and the separation of the parties’ property are governed by the Divorce Act and, in Quebec, by the Civil Code of Québec, S.Q. 1991, c. 64 (“Civil Code“).” [author’s emphasis]

[12] Telephone interview with Alan Stein, counsel for Stephanie Bruker, 10 January 2008. The court dismissed the motion since it had not been personally served. Mr. Stein was not counsel at the time.

[13] Para 160 of Bruker v. Marcovitz, of the dissenting judgment of Justice Marie Deschamps.

[14] Even if a judgment were somehow invalid, it is fully enforceable until set aside by an appropriate process that has to be launched within same judicial proceeding in which judgment had been made. See Roscoe v. Family Responsibility Office, 2007 ONCA 253, [2007] O.J. No. 1301, 2007 Cars­well­Ont 2025 (Ont. C.A.); affirming Family Responsibility Office v. Roscoe, 2005 CanLII 33530, [2005] O.J. No. 3955, 2005 Cars­well­Ont 4467 (Ont. Fam. Ct.), per Justice Michel Z. Charbonneau. (In that case, the Court of Appeal upheld a decision of a judge at an enforcement hearing who ruled that his court could not entertain a collateral attack and that he had no authority to review an earlier appellate decision.)

[15] Trial reasons, para 20.

[16] Para 161.

[17] See paragraphs 165 – 176.

[18] Para 174.

[19] Id.

[20] Id.

[21] Toronto lawyer Jeffery Wilson eloquently criticized the Supreme Court of Canada for awarding damages while ignoring Frame v. Smith where damages were not awarded to the father on account of the mother’s parental alienation campaign. Wilson wrote: “Why should the courts limit the sanction of damages in response to the mischief of a post-civil-divorce barrier of religious re-marriage and not that of a post-divorce barrier to a child-parent relationship?” Jeffery Wilson: “Case Commentary: Bruker v. Marcovitz and the Matter of Damages for Breach of Obligations Covered by Family Law Legislation: Frame v. Smith re-visited”, (2008), 21 Ont. Fam. L.R. 80-81.

[22] To some extent, the issue of finding a meaningful remedy for breach of a court order does not exist in Ontario. On a contempt application in Ontario, a court has the power to award a “penalty” to the aggrieved party. Roby v. Roby (2003), 48 R.F.L. (5th) 389, [2003] O.J. No. 4408, [2003] O.T.C. 1024, 2003 Cars­well­Ont 4581, 2003 CanLII 2111 (Ont. Fam. Ct.), per Justice Grant A. Campbell. See the Family Law Rules:

31 (5) Contempt Orders – If the court finds a person in contempt of the court, it may order that the person,

1. be imprisoned for any period and on any conditions that are just;
2. pay a fine in any amount that is appropriate;
3. pay an amount to a party as a penalty;
4. do anything else that the court decides is appropriate;
5. not do what the court forbids;
6. pay costs in an amount decided by the court; and
7. obey any other order.

[23] Each learned counsel honestly and professionally argued the case in the Supreme Court of Canada and indeed forthrightly related to the author the religious issues that were entangled in this case. Still, the author concludes from a careful reading of the trial decision and from the robust discussions with both lawyers who appeared in the Supreme Court of Canada, that religion was not likely the true motivating factor for either Ms Bruker or Mr. Marcovitz. With respect to the scepticism expressed here concerning the religious bona fides of both parties, surely counsel for both Bruker and Marcovitz would strongly disagree with the author’s conclusions.

[24] Para 67 – 69.

[25] Para 108.

[26] Trial Reasons, para 44.

[27] If we want to further muddy the credibility waters, let us note that the trial judge believed Mr. Marcovitz that had Ms Bruker sought a Get from him because she had a marriage offer, he would have immediately consented to its granting. See Trial Reasons, para 53.

[28] Address of the Hon. Bob Kaplan, Liberal member for York Centre, speaking in support of the Liberal Government’s proposed bill to the amend the Divorce Act in: House of Commons Debates, 15 February 1990, p. 8378.

[29] Para 1 – 9, especially para 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.” [author’s emphasis]

[30] Para 83 – 90.

[31] Maimonides, Laws of Divorce, 2:20 states: “… However, if the gentiles of their own accord force him (the husband) until he writes (a get)… this is a disqualified get.”

[32] “Gett Law must be used cautiously by lawyers”, The Lawyers Weekly, Vol 17, No. 11, July 18, 1997, page 11; “Re: I Will Never Give You a Jewish Divorce (GETT)”, Matrimonial Affairs (Canadian Bar Association – Ontario Family Law Section Newsletter), Vol. 9, No. 1, September 1997.

[33] Levitts Kosher Foods Inc. v. Levin, [1999] O.J. No. 2785; 45 O.R. (3d) 147; 175 D.L.R. (4th) 471; 42 C.P.C. (4th) 302; 87 C.P.R. (3d) 505; 89 A.C.W.S. (3d) 1176 (Ont. S.C.).

[34] The interplay between the state and religion as reflected in Bruker v. Marcovitz has inspired a number of thoughtful commentaries. One lawyer has criticized Bruker v. Marcovitz for its foray into religion: Terrance Carter, “The Supreme Court should not be an arbiter of religion”, The Lawyers Weekly, 18 January 2008, p. 5. Carter wrote:

… the analysis employed by the court raises a number of serious concerns, articulated by the dissent, about the court’s interference in religious matters.

Although the majority was quick to point out that it was not conducting “a judicial review of doctrinal religious principles,” it in fact did exactly that. . . . [This decision] may be interpreted more broadly to justify further judicial interference with religious practices.

…

One of the dissent’s areas of concern was the potential for courts to inappropriately apply their secular power to penalize a “refusal to raise children in a particular faith, refusal to wear the veil, failure to observe religious holidays, etc.” It would seem that the majority’s reasons would certainly grant lower courts the flexibility to employ this approach, a development which should be of concern to people and communities of faith in Canada.

McGill University Faculty of Law Associate Dean, Prof. Shauna Van Praagh, has penned a most thoughtful article: “Commentary: Courts wrestle with intersection of law and religion”, The Lawyers Weekly, 15 February 2008, p. 8. Prof. Van Praagh briefly outlined the serious questions involved where secular law and religion intersect. She established that the questions are complex and the answers are not simple for society or for students of law who will have to increasingly grapple with such issues. Yet, just as Justice Abella would advocate special protections and laws for women (as opposed to men), so too does the law professor advocate special treatment for women. She wrote: “Religious women make choices, exercise agency, and require meaningful remedial protection. And that implies interactions between norms and practices of state and religion.” [author’s emphasis]