Law Times

www.lawtimesnews.com Law Times / February 4, 2008 Page 11 A recent Supreme Court of Canada decision, which affirmed the right of the court to enforce religious aspects within a civil agreement, could open the door to more litigants raising religious issues in their pleadings, say family law lawyers. Last December, in the case of Bruker v. Marcovitz, the Supreme Court ruled that a "consent to cor- ollary relief " negotiated and signed by both parties, which included an agreement to appear before rab- binical authorities to obtain a get (a Jewish divorce), was valid. Although the parties' divorce was final in 1981, the husband, Jason Marcovitz "consistently re- fused to provide a get for 15 years," says the decision. This prompted the wife, Stephanie Bruker, to seek damages for breach of the agree- ment. Marcovitz argued that his agreement to give a get "was not valid under Quebec law and that he was protected by his right to freedom of religion from having to pay damages for its breach," says the decision. Upholding damages of $47,500 awarded at trial to Bruker, the court ruled that Mar- covitz's claim was outweighed by "the harm both to the wife personally and to the public's in- terest in protecting fundamental values such as equality rights and autonomous choice in marriage and divorce," as well as the pub- lic benefit in enforcing valid and binding contractual obligations. Daniel Melamed, a lawyer with Torkin Manes Cohen Arbus LLP, says that the case is an important one to consider. "I think both the majority and the minority highlight what will become, in my view, a very impor- tant set of issues that will confront family lawyers in both the religious context and likely other contexts as time goes on," he says. The court faced the issue of what comprises Canadian society's values, says Melamed, and how the court is going to look at these is- sues when they conflict with other values in our society, such as those of religion. "The majority of course took the position that religious values don't, per se, trump all other val- ues," he says. Although the case dealt with the Quebec Charter, which, he adds, is a bit different than the Canadian Charter, the decision noted that, when there is such a conflict, societal values have to be weighed against the value of freedom of religion. The minority noted, how- ever, that "the reserved approach taken by the Canadian courts to religious precepts is in my view a sound one. Civil rights arise out of positive law, not religious law. If the violation of a religious under- taking corresponds to the violation of a civil obligation, the courts can play their civil role. But they must not be put in a situation in which they have to sanction the violation of religious rights." Married in 1969, according to the Supreme Court decision, Bruker started divorce proceed- ings against Markovitz in 1980. A "consent to corollary relief " was negotiated and signed by both parties and included the terms of custody of their two children, child support payments, and lump-sum spousal support. As part of the consent, the par- ties agreed to appear before rabbin- ical authorities to obtain a get im- mediately upon the granting of the decree nisi, which came in 1980. According to the court, "A wife cannot obtain a get unless her hus- band agrees to give it. Under Jew- ish law, he does so by 'releasing' his wife from the marriage and autho- rizing her to remarry. The process takes place before three rabbis in what is known as a beth din, or rabbinical court." Despite repeated requests from Bruker, Marcovitz refused. In 1989, Bruker began proceed- ings for breach of the agreement, initially claiming damages in the amount of $500,000 for her in- ability to remarry and for being prevented from having children who would be considered "legit- imate" under Jewish law, according to the decision. Marcovitz argued that Bruker had renounced the consent by con- tinually seeking increases in child support payments and complained that he saw his two daughters ir- regularly. He agreed to deliver the get in 1995, when he was 63 and she was 47, and, in 1996, Bruker increased the amount of damages she was seeking. The trial judge in the case ruled that once Marcovitz signed a civil agreement, the obligation to ap- pear before the rabbinical author- ities for the purpose of obtaining a get "moved into the realm of the civil courts". However, the Quebec Court of Appeal allowed Marcovitz's appeal in 2005, find- ing, according to the Supreme Court, "The obligation was a moral one. It was therefore unen- forceable by the courts. Requiring Mr. Marcovitz to pay damages in such circumstances would be in- consistent with the recognition of his right to exercise his religious beliefs as he saw fit without judi- cial intervention." The Supreme Court allowed the appeal, noting that the reli- gious aspect of the dispute does not make it unable to be tried in a court of law. "Recognizing the enforceability by civil courts of agreements to discourage reli- gious barriers to remarriage ad- dresses the gender discrimination those barriers may represent and alleviates the effects they may have on extracting unfair conces- sions in a civil divorce," says the judgment. Grant Gold, a partner with Mc- Cague Peacock Borlack McInnis & Lloyd LLP, says that, in the past, courts stayed away from anything that was of a religious nature but this case has now changed that. "I think you're going to see more and more litigants who are going to now raise some religious issues in their pleadings," he says. Melamed adds that he thinks there will be more of these types of issues coming forward, likely in other religions and in other cities — such as Toronto. "It should frame a lot of what we should be thinking about in terms of these issues," he says. "You wonder whether someone in the future is going to try and ask for almost like a mandatory order like an in- junction — forcing someone, or trying to force someone, to give the wife a get. And I don't think that's possible but I bet we're going to see that kind of challenge being made in the future," says Gold. He notes that the decision doesn't go as far as forcing a husband "to give a get, because I don't think the court can do that, but it also doesn't go so far as to say if you don't give someone a get, she is entitled to damages, but that's the next step." Gold says that as a result of the case, "As a lawyer, I prob- ably in all of my Jewish agree- ments ought to be saying, 'hus- band will agree to provide wife with a get,' because then at least if he doesn't, I might have some remedies against him, as op- posed to ignoring it altogether and then trying to force him to do it." For family law lawyers in a situation where they are doing a final agreement, Melamed notes that they should be very clear about the terms. SCC decision could prompt more people to raise religion FOCUS Childview_LT_Feb4_08.indd 1 1/31/08 11:08:58 AM Kathbern Management is organizing interviews for this position on behalf of Pallett Valo. For information contact Lorraine Flaherty in confi dence at 416-227-9631 or Kathbern@sympatico.ca. Senior Associate Wills, Estates and Trusts Mississauga, Ontario Pallett Valo LLP, an established law fi rm in Mississauga, Ontario, seeks a Senior Associate to head its Wills, Estates and Trusts Group. Pallett Valo is a dynamic group of lawyers providing excep- tional service to business and individual clients. e fi rm has a strong reputation in its community as well as excellent infrastructure and management. Collegiality and teamwork are core values. e ideal candidate for this position specializes in Wills, Estates & Trusts, (or in Tax, Real Estate, or Corporate with an interest in focusing on Wills, Estates & Trusts). Principal qualifi cations are: • 6+ years in private practice and readiness to lead this Group. • Exposure to special legal issues (charitable trusts, estate planning for disabled benefi ciaries). • Experience drafting wills. • Experience creating teams to meet client needs. • Existing transferable client base. • Training/mentoring aptitude. • Excellent business development and presentation skills. CAREERS BY HELEN BURNETT Law Times LT *Pages 1-20.indd 11 1/31/08 6:56:21 PM

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