Supreme Court & Private Contract

[August1991]

A man and a woman marry under Jewish law. (They sign a private contract or prenuptial agreement.)

Years later, the woman wants to divorce. Under the marriage contract, the man should grant the divorce to her but instead, in breach, he refuses. Because of his refusal, the woman cannot remarry and have children. Years more past and the woman is now too old to have children. She sues.

The case winds up in the Supreme Court which decides in favour of the woman - obliging the man to pay $47,500.

The Supreme Court of Canada made a rare foray into the religious forum yesterday, coming to the aid of a 48-year-old Jewish woman whose estranged husband had stubbornly refused for 15 years to grant her a religious release from their marriage.

A 7-2 court majority said that judges must tread warily when they adjudicate religious matters, but that it would be wrong to shy away when a bedrock Canadian principle — such as gender equality — is jeopardized.

The court awarded $47,500 to the plaintiff, Stephanie Bruker, on the basis that her right to remarry and have more children within her faith was unfairly curtailed by her vindictive ex-husband, Jason Marcovitz.

Writing for the majority, Madam Justice Rosalie Abella said that courts are empowered to referee religious disputes provided they "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."

However, two dissenting judges — Madam Justice Marie Deschamps and Madam Justice Louise Charron — issued a dire warning that by intruding into religion, the decision will drag the courts into potentially explosive cases where they have no place.

"The courts may not use their secular power to penalize a refusal to consent to a 'get,' 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.," they said. "It has taken the Canadian state centuries to reach the still precarious balance we now have."

G & M

Keep in mind that she was under no obligation to stay "married" to her husband. Even though he refused a divorce, she could have sought one in Quebec without his consent and then married (or not) whoever she wanted and had children. She chose to respect their private marriage contract.

Interesting case. The Supreme Court decision is a double, or triple, edged sword.

Edited December 15, 2007 by August1991

[Michael Hardner]

I think this is terrible news.

However, two dissenting judges — Madam Justice Marie Deschamps and Madam Justice Louise Charron — issued a dire warning that by intruding into religion, the decision will drag the courts into potentially explosive cases where they have no place.

The justices are right. This case could be used to justify a supreme court foray into things like gender equality in religion, which is a direct contravention of the separation of church and state.

Female priests coming soon to a Canadian-mandated church near you...

That stinks.

[Renegade]

I think this is terrible news.

The justices are right. This case could be used to justify a supreme court foray into things like gender equality in religion, which is a direct contravention of the separation of church and state.

Female priests coming soon to a Canadian-mandated church near you...

That stinks.

No, the majority were correct to enforce a contract between two parties which was violated. If the man did not agree to the contract, I might agree with you.

[Riverwind]

No, the majority were correct to enforce a contract between two parties which was violated. If the man did not agree to the contract, I might agree with you.

The trouble is the SCC only enforces contracts when they favour the woman. The decison would have likely gone the other way if the genders were reversed.

[August1991]

No, the majority were correct to enforce a contract between two parties which was violated. If the man did not agree to the contract, I might agree with you.

I'm not so certain that you can view this case that way. I'm not certain that the Supreme Court should have gotten involved.

Incidentally, Bruker first got a judgment from the Quebec Superior Court which awarded her $47,500 damages. The Quebec Court of Appeal overturned that ruling. Now, the Supreme Court has reinstated it.

This article explains the complexity of teh case:

Should the state intrude on the church to civilize the occasional perversity in religious family institutions? Would the state, by telling Jason Marcovitz to pay damages for failing to provide a get, actually be punishing him for not being a better Jew (Goldwater's assertion)? What is the state and what is the church when it comes to family institutions, for that matter, and can you tell the difference between the two when they sit down at your breakfast table or in a lawyer's boardroom? These are the kinds of questions the Supreme Court now has the pleasure of deciding.

Macleans

IMV, the Supreme Court (indeed the other secular courts too) should have returned this to the rabinical courts for resolution. Does the Supreme Court want to get involved in adjudicating religious disputes?

Here is the wording of the Quebec Court of Appeal's decision:

Although one cannot help but be sympathetic to the plight of a Jewish woman whose former husband delays or denies a ghet…I have concluded that the substance of the former husband’s obligation is religious in nature, irrespective of the form in which the obligation is stated, and accordingly, that an alleged breach of the obligation is not enforceable by the secular courts to obtain damages or specific performance.

Link

I think this lower court decision is correct.

The Supreme Court seems to be willing to get involved on the grounds of gender equality. IOW, according to the Supreme Court, certain civil rights should supercede the right to contract privately.

I don't think the State should do that and that's what I meant by saying that this decision is a double-edged sword. The State can get involved now in a seemingly progressive manner but who knows whether a future intervention will be so "progressive"? The State's role is not to be a moral busybody.

The trouble is the SCC only enforces contracts when they favour the woman. The decison would have likely gone the other way if the genders were reversed.

From the Supreme Court's perspective, it is enforcing gender equality.

From the majority decision:

The fact that a dispute has a religious aspect does not by itself make it non‑justiciable. Recognizing the enforceability by civil courts of agreements to discourage religious barriers to remarriage, addresses the gender discrimination those barriers may represent and alleviates the effects they may have on extracting unfair concessions in a civil divorce. This harmonizes with Canada’s approach to equality rights, to divorce and remarriage generally, to religious freedom, and is consistent with the approach taken by other democracies.

...

In this case, the husband’s claim does not survive the balancing mandated by the Quebec Charter and this Court’s jurisprudence. Any impairment to the husband’s religious freedom is significantly outweighed by the harm both to the wife personally and to the public’s interest in protecting fundamental values such as equality rights and autonomous choice in marriage and divorce. These, as well as the public benefit in enforcing valid and binding contractual obligations, are among the interests that outweigh the husband’s claim.

Link Edited December 15, 2007 by August1991

[Renegade]

The trouble is the SCC only enforces contracts when they favour the woman. The decison would have likely gone the other way if the genders were reversed.

That the SCC would show such a bias is deplorable. It is, however, hard to speculate on what they would or would not have done had the genders been reversed.

Regardless of the gender however, the ruling has set a precedent which no doubt will apply to both genders.

[Renegade]

I'm not so certain that you can view this case that way. I'm not certain that the Supreme Court should have gotten involved.

Incidentally, Bruker first got a judgment from the Quebec Superior Court which awarded her $47,500 damages. The Quebec Court of Appeal overturned that ruling. Now, the Supreme Court has reinstated it.

IMV, the Supreme Court (indeed the other secular courts too) should have returned this to the rabinical courts for resolution. Does the Supreme Court want to get involved in adjudicating religious disputes?

I agree with the SCC's decision, though not necessarily their reasoning. The SCC should not get involved in religious disputes, however when religious obligations are agreed to contractually, IMV they tranced religous obligations and become legal ones. In this case the parties signed a contract. There are not a lot of details on the contract, however I'm concluding that it is a legal one in the same way a modern prenuptual contract is, and thus is a valid contract for a court to have jursitiction over.

The Supreme Court seems to be willing to get involved on the grounds of gender equality. IOW, according to the Supreme Court, certain civil rights should supercede the right to contract privately.

I don't think the State should do that and that's what I meant by saying that this decision is a double-edged sword. The State can get involved now in a seemingly progressive manner but who knows whether a future intervention will be so "progressive"? The State's role is not to be a moral busybody.

From the Supreme Court's perspective, it is enforcing gender equality.

Here I completely agree with you. The State should not be dictating morals. If gender equality was the only reason the SCC got involved, then I think it did so for the wrong reasons and overstepped its bounds. Unfortunately the SCC being the highest legal authority there is no way to redress this short of a constitutional change.

[cybercoma]

I'm not familiar enough with marriage law to fully understand this case; however, I want to know what actually kept he from being with someone else and starting a family. If she was separated from her husband, why didn't she find someone else and settle down, regardless of whether she could legally marry them or not? Was it her own reservation due to religious belief that ruined her life, or is it the fault of her ex-husband?

[Riverwind]

If she was separated from her husband, why didn't she find someone else and settle down, regardless of whether she could legally marry them or not? Was it her own reservation due to religious belief that ruined her life, or is it the fault of her ex-husband?

It was only a limitation in her mind because of her religious beliefs. This ruling sets many possible precedents. For example, preventing woman from becoming Catholic priests violates their rights. The same issue exists for gays. Edited December 16, 2007 by Riverwind

[Michael Hardner]

No, the majority were correct to enforce a contract between two parties which was violated. If the man did not agree to the contract, I might agree with you.

Renegade,

You are correct. I should have read the whole article. Auguste left out an important part:

Married on July 27, 1969, Ms. Bruker and Mr. Marcovitz of Montreal signed an agreement setting out how they would settle matrimonial disputes if their marriage broke down. It included a commitment to attend a rabbinical court in order to obtain a get.

However, when they did split up in 1980, Mr. Marcovitz, 65, refused to adhere to the agreement he had signed. He also disparaged his wife's devotion to her religion and accused her of restricting his access to his daughters. He said the courts could not intrude into the dispute without violating his religious freedom guaranteed under the Quebec Charter of Human Rights and Freedoms.

[August1991]

There are not a lot of details on the contract, however I'm concluding that it is a legal one in the same way a modern prenuptual contract is, and thus is a valid contract for a court to have jursitiction over.

It is a religious contract and it is up to the rabbinical court to interpret and to determine any punishment in the case of breach. This man can make the argument that he had legitimate grounds not to offer a ghet - who knows?

This was the conclusion of Quebec's Court of Appeal.

The Supreme Court would have done the same but decided to get involved because it felt the original prenuptial contract did not respect gender equality. Hence, it agreed with the Superior Court and granted damages (plus interest) to the woman.

-----

I suspect that the Supreme Court is preparing for the day when it will get involved in a Sharia case where the woman is at a distinct disadvantage. The Supreme Court will then intervene and rule in favour of the woman on the grounds of gender equality. Many people will applaud this as "progressive".

My point is that it is not a wise idea for the State to intervene in cases of private contracting and certainly not using the grounds of "gender equality". Like restrictions on freedom of speech, at first it seems like a civilized thing to do but then it becomes a terrifying tyrant.

If you read the Macleans article linked above, the lawyer of the man foresaw this when she presented the case last December.

[Renegade]

It is a religious contract and it is up to the rabbinical court to interpret and to determine any punishment in the case of breach. This man can make the argument that he had legitimate grounds not to offer a ghet - who knows?

What distinguishes a "religious contract" from a legal one? If two parties of consenting age formally agree via a signed contract is that not a legally binding contract?

[cybercoma]

What distinguishes a "religious contract" from a legal one? If two parties of consenting age formally agree via a signed contract is that not a legally binding contract?

If religious contracts are legally binding in court, then is not Sharia Law legal in Canada? Shouldn't our courts uphold the legally binding contract between Muslim families?

I'm not saying one way or the other, just examining the question.

[Renegade]

If religious contracts are legally binding in court, then is not Sharia Law legal in Canada? Shouldn't our courts uphold the legally binding contract between Muslim families?

Again it depends what you mean by "Religious contract". Sharia Law is not a legal contract unless both parties have willing entered to such an arrangement AND the actions promised in the contract are legal under law.

[cybercoma]

Again it depends what you mean by "Religious contract". Sharia Law is not a legal contract unless both parties have willing entered to such an arrangement AND the actions promised in the contract are legal under law.

I understand how that differs from this case then...

However, I don't find the husband responsible in this case. It was her own religious reservations that did the damage to her. It was her unreasonable religious belief that she shouldn't be with someone else, even though she was separated from her husband (but not divorced), that kept her from meeting someone else and having children. Her husband not granting her a divorce is nothing more than words on a paper and in no way was a physical limitation to her ability to leave and start a new family.

Now if he beat her, threatened to kill her or physically kept her from leaving until she was unable to have children, then there may be a case here. I don't think he's responsible for what the courts are saying he's responsible for.

I think maybe I'm confused.

[Renegade]

However, I don't find the husband responsible in this case. It was her own religious reservations that did the damage to her. It was her unreasonable religious belief that she shouldn't be with someone else, even though she was separated from her husband (but not divorced), that kept her from meeting someone else and having children. Her husband not granting her a divorce is nothing more than words on a paper and in no way was a physical limitation to her ability to leave and start a new family.

Now if he beat her, threatened to kill her or physically kept her from leaving until she was unable to have children, then there may be a case here. I don't think he's responsible for what the courts are saying he's responsible for.

If it was simply case of the woman expecting something based upon an unreasonable religious belief, I would agree with you, however, the husband AGREED to that condition PRIOR to the marriage and signed a contract to that effect. If he felt that the condition was an unreasonable infringement of his religious freedom he should have not agreed to that term in the contract to begin with and possibly not gotten married. The fact is the woman had reason to believe that the husband would live up to the condition he agreed to. The fact that he did not, makes him liable for damages for not fulfilling that condition. It is irrelevant whether that condition is a result of a belief system you or I would consider rational. It only really matters if the condition is legal and consent freely given.

[PoliAgno]

Canada sucks.

[mcqueen625]

When you have the Chief Justice, Beverley McLaughlin lecturing to law students at a law school in New Zealand, and telling them; "They should be embolden enough to make law, whether the constitution of their country allows for that or not." or words to that affect. This tells us where these unelected and unaccountable justices heads are at, and that is scary, because they would likely be quite happy in making laws, and then ordering our elected representatives to draft legislation to reflect those laws. That to me is scary, and should be stopped immediately.

Since our appointed Supreme Court Judiciary is unelected and unaccountable to anyone, including those that appointed them to office, it effectively means that they are really the people in charge of this country, and that is totally wrong. It also means at the end of the day they get to make decisions which our elected representatives would have no choice but to implement, and I for one want a country where the people have control over those that make the rules and laws, and presently that is not the case.

If our elected representatives are not really in charge, them maybe it is time to abolish both the Senate and the Parliament of Canada, and instead elect the Supreme Court Judiciary to specific terms in office with a set number of terms they may sit, like two terms. If nothing else it would certainly make them conscious of what it is the public wants, before they make some of the asinine decisions like they have made in recent history. :angry: