The new Supreme Court Case ruling, Bruker v. Marcovitz, has some interesting implications for Jewish family law.
The case was considered by The Lawyers Weekly to be the “most timely and topical” of all the appeals reviewed by the court last year.
Background 
In Judaism, a couple can only get a divorce when the man issues a sefer k’ritut, or “cutting off scroll,” more commonly known as a get.
The procedure was actually instituted to safeguard against reckless divorce, but has the consequence of leaving initiation of divorce to the husband.
To circumvent this, many Jewish couples create a contract prior to marriage stating that the woman can obtain a get on demand if the circumstances require it.
The parties in this case were married in 1969, and received a decree nici for divorce in 1980 that was finalized the following year.
The original contract stipulated that in the case of divorce they would appear before a Jewish Tribunal (Beth Deen) to receive the get. However, the defendant thereafter refused to issue the traditional get, claiming it was being used to prevent him from seeing his children.
The plaintiff still considered herself religiously married, and therefore chose not to remarry and did not receive a get until 1995, after she was no longer of childbearing age. Any children she did have during the interim would be considered by her to be illegitimate.
She sought damages in 1989 for $500,000 in breach of contract, which thereafter was increased to $1,350,000 in 1995 to reflect additional damages for lack of companionship.
The husband sought protection under s. 3 of the Quebec Charter,
Every person is the possessor of the fundamental freedoms, including freedom of conscience, freedom of religion, freedom of opinion, freedom of expression, freedom of peaceful assembly and freedom of association.
The Ruling
The court first commented on the religious nature of the case in a secular court. Abella, J., herself a Jewish woman, said,
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.
The court found that the contract was between two conscionable parties represented by counsel and intended to be legally enforceable, and that awarding of damages would not infringe on relgious freedoms:
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…
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.
Dissent, Critique, and Commentary
Yu-Sung Soh, though supporting the majority decision, summarizes the dissent,
…the dissenting minority took a more categorical approach in refusing to intervene in private disputes of a religious nature where there is no violation of a rule recognized in positive law. The dissent held that since there had been a civil divorce between the parties, there were no legal barriers for the ex-wife in remarrying and having legitimate children. Only her religious rights as a result of religious rules were infringed and this was not a matter that the courts should determine.
The dissent essentially stated that the damages in this case were self-inflicted by the plaintiff, though admittedly based on religious conscience.
Russ Brown of UofA offered his critique,
My first impression is that I am (strongly) inclined towards the dissenting reasons of Deschamps and Charron JJ who state that judicial consideration of religious questions should be predicated on a demonstrated violation of a rule recognized in positive law.
Brown also points out that the claim for damages were based on religious, and wonders what the court would decide if an injunction for specific performance was sought instead.
However, and comment in the Star,
Religious and cultural obligations form the life experiences of Canadians who live by them, and they cannot be brushed off as “cultural” values instead of “Canadian” values. It is traditionally within the court’s jurisdiction to “ensure that members of the Canadian public are not arbitrarily disadvantaged by their religion,” Abella concludes, and this case fits comfortably within that tradition.
But the most interesting element may be the fallout of this case and its implications on Contracts Law.
Professor Daniel Cere of McGill University religion said in the National Post,
The judgment may provide some relief for Jewish women who feel trapped by the internal logic of Jewish divorce law” but warns that on the Bruker principle, the courts might gradually be “transformed from a shield to protect religious freedom into a sword to coerce particular religious undertakings.
Promissory Estoppel has not been posted on this site yet, but typically is considered in Canada a shield, i.e. a defence against proceedings, for which an injunction is the only remedy. This ruling may change that for the future.
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