Recently, the Supreme Court of Canada overturned a Quebec Court of Appeal decision and ruled that civil courts have the authority to enforce Jewish law. A Jewish husband who refused to give his wife a Get also known as a Ghet, or Jewish divorce, was found in breach of his contracted obligation in his "separation agreement" to appear before rabbinical authorities and was therefore ordered to pay damages to his wife.

The court found that the husband's failure to grant the Get kept his wife from marrying within her community. As a result, the Quebec Superior Court ordered the husband pay $47,500. According to Supreme Court Justice Rosalie Abella, the Quebec Court ruled that the husband owed $2,500.00 for each of the 15 years between the Decree Nisi and the Get, and $10,000 for the wife's inability to have children considered 'legitimate' under Jewish law.

Because only a husband can grant a Get, thereby 'releasing' his wife from the marriage, the wife requires his consent to remarry. Justice Abella explained that a wife in this situation "is known as an agunah or 'chained wife'. Any children she would have on civil remarriage would be considered 'illegitimate' under Jewish law... " 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.

In support of the Quebec Superior Court decision, Justice Abella wrote that "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." Furthermore, she argued that balancing religious rights with public interest "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."

The Quebec Court of Appeal ruled unanimously that the husband's obligation to grant the Get was a moral obligation and therefore outside the court's power. Dissenting Supreme Court Justices Marie Deschamps and Louise Charron agreed, warning that courts shouldn't intervene to penalize a "failure to pay the Islamic mahr (dowry), refusal to raise children in a particular faith, refusal to wear the veil, failure to observe religious holidays, etc."

Referring to the European Commission of Human Rights, D. v. France, 35 Eur. Comm. H.R.D.R. 199 (1983), Justice Abella noted that there is international support for courts who protect women from husbands who deny their wives Gets. In this case the ex-wife was awarded 25,000 francs for the husband's refusal to grant a Get. The husband's application to the Commission that his rights under the European Convention of Human Rights had been violated by the award of damages was rejected, and the court's ruling stood.

Bruker v. Marcovitz, 2007 SCC 54

December 2007

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