Canada's High Court Affirms Damages To Wife Who Was Denied A Jewish Divorce

In a 7-2 decision yesterday, Canada's Supreme Court held that an Orthodox Jewish woman could collect damages in a Quebec civil court for her husband's breach of an agreement to give her a Jewish divorce decree ("get"). In Bruker v. Marcovitz, (Sup. Ct. Canada, Dec. 14, 2007), the majority held that the promise to obtain a get, set out in the Consent to Corollary Relief entered into by the parties as part of their divorce proceedings, was a valid and binding agreement. The majority rejected the husband's argument that his freedom of religion assured by the Quebec Charter of Human Rights and Freedoms protected him from having to pay damages for breach of a promise to carry out a religious act. The majority said:

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 represented 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.

Justice Deschamps' dissenting opinion argued that the husband's agreement to give his wife a "get" is merely a moral undertaking, and even if it were enforceable, civil courts cannot be used to sanction an individual's failure to perform a religious act. Interestingly, both the majority and dissenting opinions reviewed precedent from other countries in reaching their conclusions, citing cases from France, Britain, Australia, the United States and Israel.

CBC News and the Montreal Gazette both report on the case which reverses the Court of Appeals decision and upholds the trial court's award of $47,500 in damages to Stephanie Bruker who for 15 years was denied a "get" by her former husband Jessel Marcovitz.