MONTREAL — Rabbis, Jewish community organizations and advocates for agunah rights are hailing the landmark Dec. 14 Supreme Court of Canada decision upholding damages to a Jewish woman whose ex-husband withheld a get for 15 years, despite having agreed in writing to immediately issue it once they were civilly divorced.
In a 7-2 decision, the high court said the agreement, despite its religious nature, was part of a contract and therefore within the domain of the courts. It overturned a 2005 Quebec Court of Appeal ruling that secular courts cannot intervene because of that religious nature and that the agreement to provide the Jewish religious divorce was, at most, “a moral obligation.”
Alan Stein, lawyer for the victorious Stephanie Bruker, said the judgment has a profound significance for the Canadian Jewish community because it establishes that commitments to give a get – whether in a prenuptial agreement or, as in this case, as a corollary measure in the context of divorce proceedings – are enforceable civilly.
Although it was not a subject of argument, Stein believes that the constitutionality of Section 21.1 of the Divorce Act, which requires that divorcing spouses remove barriers to their exes’ religious remarriage, cannot be challenged from here on in. The 1990 amendment was made mainly at the urging of the Jewish community as a way to prevent women from becoming agunot – that is, unable to marry again or have legitimate children within traditional Judaism.
The case was represented before the Supreme Court pro bono by William Brock, David Stolow and Brandon Wiener of Davies Ward Phillips & Vineberg of Montreal, along with Stein, who acted for Bruker in the lower courts. The Canadian Civil Liberties Association was an intervener.
In a statement, the firm says the judgment holds that the 1980 agreement between Bruker, now 59 and living in New York, and Jessel (Jason) Marcovitz, 75, of Montreal, to go before the rabbinical authorities “immediately” upon the granting of the decree nisi, or provisional divorce, was “a valid and binding contractual obligation under Quebec law and that such an agreement is consistent with public policy, the Canadian approach to marriage and divorce and the commitment to eradicating gender discrimination.”
Marcovitz’s lawyer had argued that it was not valid under the province’s Civil Code – unique in Canada – and that the Quebec Charter of Human Rights and Freedoms protected him from having to pay damages for his failure to fulfil a promise to perform a religious rite.
He had also tried to prove that he didn’t need to give Bruker a get because she was not living an Orthodox Jewish life.
“The majority further held that there was no infringement of [Marcovitz’s] freedom of religion, since his refusal to provide a get was ‘based less on religious conviction than on the fact that he was angry with [Bruker],’” the Davies statement continued.
Justice Rosalie Abella wrote: “The public interest in protecting equality rights, the dignity of Jewish women in their independent ability to remarry, as well as the public benefit in enforcing valid and binding contractual obligations, are among the interests and the values that outweigh [Marcovitz’s] claim that enforcing [the get agreement] would interfere with his religious freedom.”
Abella cites the Divorce Act’s Section 21.1 in her judgment. She notes that while the parties agreed not to dispute its constitutionality, they did not agree that it could not be used in analyzing the other issues in this case.
The Supreme Court sided with Quebec Superior Court judge Israel Mass’ 2003 decision, made following a trial that lasted more than 30 days, to award Bruker $47,500, plus interest and indemnity – well below the $1.35 million she sought. The Supreme Court, however, did not go along with her bid to have that amount increased to $400,000. She first launched civil proceedings in 1989.
Rabbi Michael Whitman, president of the Montreal Board of Rabbis, said the decision is “a very strong statement in protecting women and against claiming religious freedom in order to hurt other people… This is an appropriate limit on religious freedom. And, from a Jewish point of view, there is no such thing as the right to withhold a get. The obligation is to give a get and to receive a get. Anything else is just a sin.”
He emphasized that the court’s ordering a man to pay damages for not delivering a promised get does not constitute coercion, from a Jewish perspective. “The sources clearly assert that if a man agrees [to give the get] of his own free will, it is not considered coercion,” he said.
Rabbi Whitman, who teaches a course on Talmud in McGill University’s law faculty, sees no encroachment on rabbinical authority in this judgment. “On the contrary, it is very respectful of religious matters. I wish we didn’t need recourse to the secular courts, but it is a fact of life in the modern world.”
He believes it is essential that couples now draw up prenuptial agreements that include an agreement to go through the get process, should the marriage dissolve, something he has insisted upon for more than 25 years. “I would be happy to share with any rabbi in Canada the text that I use which has been reviewed by legal counsel.”
Evelyn Brook, president of the Coalition of Jewish Women for the Get, who has followed this case closely through the years, called the decision “a relief. Agunot now know they have civil remedy.”
“It’s a clear statement that men cannot abuse the unilateral power they have,” she said, adding that she hopes more women will now come forward to seek redress.
She continued: “There’s no infringement on Jewish law here. The Supreme Court is not saying that a man has to give a get, it’s saying that if he breaches a contract, there are consequences. These settlements are civil contracts; ‘Jewish’ is only an adjective in them.
“I think this will also be a relief for the lawyers who hope, but can never be sure, if the parties will keep their word.”
Canadian Jewish Congress co-president Rabbi Reuben Bulka said: “This decision establishes that the religious overtone of a contract will not prevent the courts from enforcing it, provided it corresponds to Canada’s public policy and is in keeping with the charters [the Quebec Charter of Human Rights and the Charter of Rights and Freedoms].
“In this particular case, the judgment will serve to help level the playing field for Jewish women filing for divorce and will serve notice that those standing in the way of people moving forward with their lives will not do so with impunity.
“We welcome this verdict and will follow closely its application in subsequent cases.”
B’nai Brith Canada executive vice-president Frank Dimant said: “In approving an award of civil damages to the woman, Canada’s highest court has remarked favourably on get legislation from a public policy point of view…
“Canada’s highest court has struck the right balance between the role of the courts and freedom of religion. It has maintained the integrity of Section 21.1 of the Divorce Act, which is designed to safeguard the dignity of Jewish women to divorce and remarry.”
Stein, who said he worked for “a nominal retainer,” chided the two Jewish organizations for not backing Bruker until now. “Where were they all these years? They did not support us in any way or even intervene when it went to the Supreme Court.”
The two dissenting judges, Marie Deschamps and Louise Charron, argued that the courts have no business getting involved because only Bruker’s religious rights were at issue, “and only as a result of religious rules… It is not up to the state to promote a religious norm.”
Former journalist Dorothy Lipovenko, an Orthodox Jew, called the decision “dreadful” and another case of “legislating from the bench.”
“It all goes back to the real problem with the get, i.e., trying to work around the risks with civil contracts – just bad fixes that don’t address the basic problem.’’
Lipovenko said that, until relatively recent times, most young brides did not know about the get.
“I would argue before the courts that by virtue of the fact that the officiating rabbi failed to disclose the get issue to the bride, she entered into the union without fully informed consent, rendering the marriage invalid or giving her the right to sue the rabbi for not exercising his fiduciary duty to fully make her aware of what a Jewish marriage/divorce was all about.”