Supreme Court recognizes Religious Contracts

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In a landmark decision issued on December 14, 2007, the Supreme Court of Canada recognized obligations that arise out of religious contracts as being a legitimate basis for a lawsuit that can be enforced in the civil courts. This includes marriages, divorces and other matters of family law, as well as any legal disputes arising as a result. The Supreme Court will not interfere with religious doctrine, but according to its ruling will enforce religious agreements and contracts as part of civil law.

Although the Court’s decision was related to commitments made in relation to a Jewish divorce case, this decision will potentially have a significant impact on all religious communities in Canada, including Muslims.

According to Islamic Law, marriage is a civil contract and divorce is the termination of that contract. Following the Supreme Court decision, the terms of religious agreements and contracts can now be enforced by Canadian courts.

The divorce in this case was conducted here in Canada by a Jewish court, a Beth Din, but the Court’s decision could also lead to the recognition of divorces conducted by religious authorities abroad.

This new status will alleviate the suffering and stress of many new Canadians who have experienced difficulty in having their foreign divorces recognized by Canadian authorities. A Jewish divorce in Israel, or an Islamic divorce in Lebanon, for example, should now be more easily recognized in Canada.

Justice Rosalie Abella, writing on behalf of the Supreme Court’s seven-member majority said, "Canada rightly prides itself on its evolutionary tolerance for diversity and pluralism. This journey has included a growing appreciation for multiculturalism, including the recognition that ethnic, religious or cultural differences will be acknowledged."

The Canadian Jewish community has maintained a strong desire for religious autonomy and the right to enforce Judaic Law pertaining to issues such as marriage and divorce through the Beth Din, a Jewish court that parallels Canadian secular civil courts. Presiding Rabbis in such courts essentially have a supervisory role, as couples marry or divorce themselves.

Jewish divorce laws require that the man must divorce his wife. If the husband refuses to write the "get" or divorce document, his wife cannot remarry in the Jewish tradition. If she does, her children are forbidden to marry within the Jewish community.

A Montreal Jewish couple, Jessel Marcovitz and Stephanie Bruker, married in 1969 in an orthodox religious ceremony. They adopted their children, as Ms. Bruker was unable to conceive.

In April of 1980, Ms. Bruker initiated divorce proceedings and the couple contracted at the beginning of their divorce settlement that Mr. Marcovitz would give his wife the required "get."

The couple appeared before a Beth Din in Montreal where, as agreed, Ms. Bruker asked Mr. Marcovitz to provide the "get," but Mr. Marcovitz refused.

In 1989, Ms. Bruker sued her estranged husband for $500,000, seeking damages "for having been restrained from going on with her life … for having been restrained to remarry according to the Jewish faith [and] for having been restricted of having children."

Mr. Marcovitz countered that Ms. Bruker’s religious orthodoxy was suspect, given her alleged adultery, and that she was unable to conceive children. In Mr. Marcovitz’s view, Ms. Bruker was using the "get" as the means to continue harassing him.

At the couple’s first trial, the court found the matter could be argued before the civil courts and that Mr. Marcovitz had breached his contractual obligation. Ms. Bruker was awarded $47, 500 in damages.

On appeal, Justice Hilton of the Quebec Court of Appeals overturned the lower court judgment, ruling that the obligation was religious in nature and so could not be judged by the civil courts.

"While I recognize the usefulness of the inclusion of obligations of this nature in divorce agreements, it does not follow that they all automatically become subject to curial supervision and control, whether for specific performance or damages in the event of a breach," Justice Hilton wrote. "In my view, in order for such clauses to be enforceable, they must be directly related to one of the subject matters on which courts issue or vary orders of corollary relief, and otherwise be justiciable."

But the Supreme Court of Canada reversed his decision. All nine judges disagreed with the Quebec Court of Appeal’s ruling that contracts relating to religious obligations are unenforceable.

Justice Abella concluded that under Quebec Civil Code, there is nothing to stop individuals from turning a religious obligation into a legally binding one through a contractual agreement.

The two dissenting judges agreed that such a contract could be enforceable, but argued that under Canadian law there was nothing to stop Ms. Bruker from remarrying and that any children resulting from such a marriage would still have the right to marry. Only her personal religious convictions were to be blamed, and thus her damages were self-caused. Justice Abella and the Supreme Court of Canada majority, however, said in effect that religious obligations form part of the life experiences of Canadians and are considered "Canadian" values. It is traditionally within the court’s jurisdiction, Abella concluded, to "ensure that members of the Canadian public are not arbitrarily disadvantaged by their religion."

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