Bruker v. Marcovitz, Supreme Court of Canada File No. 31212

On December 14, 2007, the Supreme Court of Canada (the “SCC”) released its highly anticipated decision in the case of Bruker v. Marcovitz, which raised the question of whether a court of law could award damages to sanction the failure to abide by a civil promise to provide a Jewish divorce (referred to as a “Get”). In a 7-2 judgment, the SCC held that the breach of an obligation that forms part of a civil contract can be enforced notwithstanding its “religious” undertones.

In this case, the parties, both of the Jewish faith, reached an agreement with the assistance of counsel on corollary measures in the context of their divorce proceedings. That agreement included an obligation that the parties appear before the Rabbinical authorities “immediately” upon the pronouncement of a Decree Nisi of divorce being granted for the purpose of obtaining a traditional religious Get (a Get is a Jewish bill of divorce, which, under Jewish law, must be provided by the husband to his wife in a ceremony before the Rabbinical authorities, known as the Beth Din).

After the Decree Nisi was pronounced, the respondent refused to present himself before the Rabbinical authorities and persisted in his refusal for 15 years. The appellant instituted civil proceedings and claimed damages from the respondent for being restrained from going on with her life, for being restrained to marry according to the Jewish faith, for being restricted of having children, and for loss of consortium.

The trial judge awarded the appellant $47,500 in damages for the respondent's breach of his contractual promise. That decision was overturned by the Québec Court of Appeal, which dismissed the action on the basis of its holding that where the substance of an obligation is “religious in nature,” irrespective of the form in which that obligation is stated, a breach of that obligation is not enforceable by a court of law to obtain damages or specific performance. The Québec Court of Appeal held that ordering the respondent to pay damages would be inconsistent with the recognition of his right to exercise his religious beliefs as he saw fit without judicial intervention.

The majority of the SCC restored the judgment of the trial judge.

The majority of the SCC held that the fact that the promise to give a Get had “religious elements does not thereby immunize it from judicial scrutiny.” It held that the agreement to give a Get was a valid and binding contractual obligation under Québec 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. The majority further held that there was no infringement of the respondent'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 [the appellant],” and in any event, that: “[t]he 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 [the respondent's] claim that enforcing [the Get obligation] would interfere with his religious freedom.”

The appellant was successfully represented pro bono before the SCC by Davies Ward Phillips & Vineberg LLP, with a team made up of William Brock, David Stolow and Brandon Wiener, along with co-counsel Alan Stein of Stein & Stein, who acted for Ms. Bruker in the courts below. The respondent was represented by Anne-France Goldwater and Marie-Hélène Dubé of Goldwater, Dubé.

Lawyer(s)

Brandon Wiener David Stolow William Brock Mark F. Dempsey Alan M. Stein