Bruker: Are Religious Promises Enforceable Promises?

It is often remarked that Canada is a multicultural society perpetually striving to affirm the equality and dignity of all her citizens. Such recognition, however, should not blind us to the reality that multiculturalism is a road upon which we continue to sometimes awkwardly stumble. This is particularly the case at the interstice between religious law and family law, where the proper role of our civil courts in resolving religious matters remains a hotly contested issue.

When released, one Supreme Court of Canada (“SCC”) decision that is sure to throw the contours of this debate into sharp relief is Stephanie Brenda Bruker v. Jessel (Jason) Benjamin Marcovitz, 2007 SCC 54. Heard in December of 2006, the case will likely serve to define whether or not civil courts are capable of adjudicating the contractual breach of religious undertakings.

At its core, the case concerns the appeal of a Jewish woman seeking damages from her ex-husband for withholding a promised Jewish divorce for fifteen years. The woman, Stephanie Bruker, alleges that her ex-husband’s breach of contract ruined her ability to remarry a Jewish partner and to fully proceed with her social and religious life.

In 1969 Ms. Bruker married Jason Marcovitz in Montreal. At the time she was twenty and he was thirty-two years old. Both Bruker and Marcovitz were adherents of the Jewish faith and they were married according to the norms of Orthodox Judaism. In April of 1980, Bruker commenced civil divorce proceedings. Unbeknownst to Marcovitz at the time, Bruker had been having an intermittent affair with her college sweetheart.

With the assistance of their respective attorneys, Bruker and Marcovitz obtained a decree nisi of divorce and were able to reach agreement on several corollary matters. Among these corollary concerns were the custody and visitation of the couple’s children, as well as a provision stipulating that both parties undertook to appear before a tribunal of rabbinical authorities (Beth Din) in order to obtain a religiously-sanctioned Jewish divorce (ghet).

Within Orthodox Jewish practice, the issuance of a ghet is of profound social significance, particularly for female spouses. Among other things, a ghet is required in order for a woman to be entitled to remarry within the religious community, and so that any child born of that second marriage not be deemed a bastard (mamzer).

At some point after the civil divorce proceeding, but before the parties’ appearance before the Beth Din, relations between Bruker and Marcovitz became strained, resulting in the former husband’s refusal to further cooperate. This remained the case until 1989, when Bruker initiated proceedings on the advice of her attorney and rabbi as a means to pressure Marcovitz into appearing before religious authorities.

At trial, whereas Ms. Bruker sought damages for $500,000, Marcovitz initially contested the action on a number of grounds, including the fact that Bruker had allegedly alienated him from their children. In December of 1995, however, Marcovitz assented to appear before a Beth Din, at which time the couple were finally issued a ghet. By 1995, Ms. Bruker was 47 years old.

Although now having obtained both a civil and religious divorce, Bruker decided to continue her cause in court, and by June of 1996 had amended her declaration, increasing the amount of her claim to $1,350,000 (including $750,000 for loss of consortium).

At trial, Marcovitz argued that his promise to appear before the Beth Din constituted a moral obligation, but not a legal one. Accordingly, Marcovitz insisted that his failure to appear was simply not justiciable within a civil court of law. The trial judge, however, was not persuaded, and chose to award Bruker $47,500 plus interest, concluding that although infused with religious undertones, the contract breached by Marcovitz clearly fell under the purview of the courts.

By September of 2005, the case found itself before the Quebec Court of Appeal (“QCOA”), where the precedent-setting decision of the lower court was overturned. In reaching its decision, the QCOA considered the potential impact of s. 21.1 of the Divorce Act,  RSC 1985, c 3 (2nd Supp),  as well as a number of key Canadian and U.S. cases, including the SCC’s decision in Syndicat Northcrest v. Amselem, 2004 SCC 47. Ultimately, the appellate court ruled that Marcovitz’ obligation and breach thereof were religious in nature, and thus were not enforceable within the secular court system. Speaking on behalf on the Court of Appeal, Hilton J. remarked at para 76:

“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.”

When handed down, the SCC’s response to the QCOA is likely to have far reaching consequences not only for Orthodox Jewish Canadians, but for a number of other religious groups adhering to their respective religious traditions. The question of how far the courts should be permitted to intervene into religious and moral affairs of Canadians is an issue that has provoked the interest not only of a multitude of religious officials and practitioners, but of secular civil libertarians and feminists alike. Certainly, if nothing else, it seems that the SCC will need to weigh in on the vulnerability of large swaths of contemporary Canadian women living at the interstices of religious and civil law.