May 8, 2007
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.
13 Comments
Surely the only issue is whether the conduct in question is actually part of the signed agreement. If it is, then unless there is some public policy ground on which the conduct is objectionable, then the motivation for the conduct is simply irrelevant.
I'm quite satisfied that the law will not enforce a purely gratuiutous or purely moral obligation. (And what the civil law does is no concern of mine.) But a term of a binding contract is neither gratuitous nor purely moral. And it shouldn't be left at the mercy of a judge's bigotry. And the belief that religious belief disqualifies you from access to justice is plain bigotry.
Ebt,
In addition to your contract point (which isn't pilpul*) what's also missing from the Quebec CA judgment is some explanation (actually any indication) as to why the trial judge held that damages were one of the remedies for breach that the parties contemplated when they entered into the contract.
If the parties didn't agree, expressly or by necessary implication, then does Quebec civil law imply that remedy? If not, did the parties, the trial judge, and the Quebec CA forget a not so small matter? It's abundantly clear from the CA judgment (see para 34) that Markovitz's position was that the breach wasn't justiciable at all.
Perhaps a lurker/reader with a cvilian background can tell us if there's anything in Quebec law that means that damages are deemed to be remedy for breach of contract if the contract is silent and doesn't exclude them by necessary implication.
If damages weren't one of the contemplated remedies, and aren't deemed by Quebec law, then Ms Bruker might both (1) lose on principle and (2) lose principal.
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*Pilpul means hair-splitting, colloquially; technically it means sharp
analysis. "Sharp" isn't necessarily meant pejoratively. Pilpul is a term
that describes a technqiue for studying the Talmud. See
http://www.jewishencyclopedia.com/view.jsp?artid=318&letter=P .
"The essential characteristic of pilpul is that it leads to a
clear comprehension of the subject under discussion by
penetrating into its essence and by adopting clear distinctions
and a strict differentiation of the concepts."
Sounds like law school, no?
The English law (or philosophy) equivalent of pilpuli is casuistry, not used pejoratively. Western civilization law students know pilpul as it is the way they learn the meaning and consequences of prior decisons. That's not surprising because the western legal teaching borrowed it from the Catholic Church, which in turn borrowed it from Judaism. And that completes the circle. Or gets us to the end.
The closest thing to a case that I can see here is that the damages sought result from the claimant's inability to remarry. But that inability arose solely because of her religious beliefs. She could have mitigated or avoided damages at any time by simply tossing her religion out the window and marrying man, woman or beast. And her freedom of religion has to be limited so that it doesn't become merely a right to run up bills for someone else to pay. But I can't imagine listening to a man argue that his wife is obliged to become an apostate because he married her as a Jew. And in any event, that's all very far from the notion that her claim is not justiciable.
Imagine a contract of utmost good faith, with an express good faith clause. To comply with that clause, I have to obey at least two Commandments (no false witness, no covetting my neighbour's wealth). Is that clause enforceable? In every case? Against Christians and Jews? Obeying commandments sure looks religious to me; if I read Mark and Matthew right (and I don't always), it's essential to Christianity, and I'll leave the Old Testament authority to others. Perhaps it's time to strike down the murder laws.
ebt,
I figure that, by the time I've finished this, I'll either have offended either
or both of (1) people who believe that there's a measurable value to religion
or (2) people who believe that judges aren't fallible in human ways.
The sound of people rushing to answer your question is deafening. Or, perhaps it's the pull of the vacuum as people run away that's tearing them away from their computers.
Let's go back to the reason that the Que CA gave for dismissing B's action.
That obligation was quoted in para [13] of the Que CA reasons. "The parties
appear before the Rabbinical authorities in the City and District of Montreal
for the purpose of obtaining the traditional religious Get,[3] immediately upon
a Decree Nisi of divorce being granted."
Now, let's change the agreement just a touch.
Let's assume that B and M had agreed, either as part of a marriage contract, or
as part of their agreement to divorce and divide property, that (1) he would
pay her $1 per year (prorated appropriately on a monthly basis) if he did not
do all that was required of him under Jewish law to get her a ghet and
(2) that $12 was a fair estimate of her damages etc. Would the Que CA have held
that promise was not justiciable?
Now assume that the only difference was that the amount is $1,000,000? Shouldn't
the result be the same?
Yes, I've reversed the prostitution joke to make the point.
That point is that the Que CA, for whatever reason, conflated the issue of
valuing the breach of the contract with the issue of the civil
justiciability of the breach.
It's easy to see why the Que CA would not want to have to put a value on the
breach. The explanation is clear in para.76. How does the civil law value the
loss of the ability to get married in a religious ceremony? Can the civil law
put any monetary value on that right? Is it worth more than, say, the trilogy
cap on general non-pecuniary damages for negligence? Putting it more bluntly,
is it a more valuable loss to the aggrieved ex-spouse than the complete loss of
amenities of life sustained by say, a child who will be paralyzed for life due
to the negligence of another? What if the marriage will result in one spouse
living a life that, though not "illegal" in any civil or criminal sense, has that
spouse giving up what mainstream Canadian society considers inalienable rights.
ebt,
I figure that, by the time I've finished this, I'll either have offended either or both of (1) people who believe that there's a measurable value to religion or (2) people who believe that judges aren't fallible in human ways.
Let's go back to the reason that the Que CA gave for dismissing B's action.
That obligation was quoted in para [13] of the Que CA reasons. "The parties appear before the Rabbinical authorities in the City and District of Montreal for the purpose of obtaining the traditional religious Get,[3] immediately upon a Decree Nisi of divorce being granted."
Now, let's change the agreement just a touch.
Let's assume that B and M had agreed, either as part of a marriage contract, or as part of their agreement to divorce and divide property, that (1) he would pay her $1 per year (prorated appropriately on a monthly basis) if he did not do all that was required of him under Jewish law to get her a ghet and (2) that $12 was a fair estimate of her damages etc. Would the Que CA have held that promise was not justiciable?
Now assume that the only difference was that the amount is $1,000,000? Shouldn't the result be the same?
Yes, I've reversed the prostitution joke to make the point.
That point is that the Que CA, for whatever reason, conflated the issue of valuing the breach of the contract with the issue of the civil justiciability of the breach.
It's easy to see why the Que CA would not want to have to put a value on the breach. The explanation is clear in para.76. How does the civil law value the loss of the ability to get married in a religious ceremony? Can the civil law put any monetary value on that right? Is it worth more than, say, the trilogy cap on general non-pecuniary damages for negligence? Putting it more bluntly, is it a more valuable loss to the aggrieved ex-spouse than the complete loss of amenities of life sustained by say, a child who will be paralyzed for life due to the negligence of another? What if the marriage will result in one spouse living a life that, though not "illegal" in any civil or criminal sense, has that spouse giving up what mainstream Canadian society considers inalienable rights.
Yes, the problem is one of damages. I believe one of the apostles had been served with a demand for taxes, and asked Jesus what to do about it. Jesus sent him out fishing; he caught a fish at once, and in its mouth was a coin sufficient to pay the tax. Other than such ad hoc arrangements with official creditors, though, I can think of nothing that might be useful in fixing a monetary value for Christian belief, and I suspect other religions have similar problems. But then, all subjective and emotional heads of damage have the same problem.
Not really a legal argument, but what I find ironic is that this woman was carrying on an extramarital affair which is obviously completely forbidden by Jewish law yet sought damages for being unable to marry in accordance with Jewish law.
While this comment is not particularly germane to the post and subsequent comments, the recognition of promises made in a religious setting has occurred in at least one other case. In Spears & Levy (Re) (1974), 52 D.L.R. (3d) 146 (N.S.S.C. A.D.), a woman claimed to be entitled to a share of her husband's estate on the basis that she was married to him. The court held that she was not. (The reasons for her belief that she was makes interesting reading by itself.) The Court of Appeal held that the "husband's" promise to endow her with all his worldly goods in accordance with the Anglican marriage service was an enforceable promise. The court was determined to protect the woman at a time when unmarried concumbents had no rights of succession on their partner's death and conveniently ignored the fact that the marriage, being bigamous, was void.
Once upon a long, long, time ago, the courts had less problem with actions for final loss based upon the breach of promise having a normative / moral / religious / whatever component, at least so long as the damages relate to something "right" that the society was prepared to recognize. We even had statutes reflecting those considerations.
For example,
Stoner v. Skene (1918), 44 O.L.R. 609, [1918] O.J. No. 54 (H.C.J.)
Ontario Supreme Court - High Court Division
Non-Jury Sittings - Toronto, Ontario
Lennox J.
December 31, 1918
Seduction — Action by Mother for Seduction of Daughter — Death of Father before Seduction — Remarriage of Mother — Stepfather Living at Time of Seduction but Dying before Action — Cause of Action — Seduction Act, secs. 2, 3 — Married Women's Property Act, sec. 4(2) — Trustee Act, sec. 41.
This action was brought by a widow for the seduction of her daughter, a child of her first husband, who died before the seduction. Before the seduction, the plaintiff married again; her second husband was living at the date of the seduction, but died before the action was brought, and before the birth of the daughter's child:
Held, having regard to the provisions of secs. 2 and 3 of the Seduction Act, R.S.O. 1914, ch. 72, of sec. 4(2) of the Married Women's Property Act, R.S.O. 1914, ch. 149, and of sec. 41 of the Trustee Act, R.S.O. 1914, ch. 121, that the action was maintainable by the mother: the step-father was eliminated by the words of sec. 2 of the Seduction Act, "whether she remains a widow or has married again."
Entner v. Benneweis (1894), 24 O.R. 407, distinguished.
Whitfield v. Todd (1844), 1 U.C.R. 223, 224, 225, referred to for an exposition of the meaning of the original Seduction Act, 7 Wm. IV. ch. 8 (U.C.)
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¶ 1 THIS was an action brought by Henrietta Stoner, plaintiff, against Alexander Skene, defendant, for the seduction of the plaintiff's daughter.
¶ 2 The statement of claim delivered by the plaintiff was as follows: ...
...
[4] At all the dates previously mentioned, and between all of them, the said Elsie Ilene Stoner was residing with the plaintiff, in the city of Toronto, and rendered her, and, prior to the death of the said Edward Stoner, rendered him, services by working in their home, and contributed $7 a week to the home.
....
¶ 3 The plaintiff claimed $5,000 damages.
¶ 4 December 21. The action was tried by LENNOX J., and a jury, at a Toronto sittings.
¶ 5 The jury found for the plaintiff with $3,000 damages.
¶ 6 The defendant moved for a nonsuit, and the plaintiff moved for judgment on the finding of the jury.
....
¶ 20 Neither is the case of Hamilton v. Long in point. Beyond the unquestionably well settled common law principle that the cause of action must in all cases be based on service or the right of service, and that this right is to be attributed to the father if living at the time of the seduction, the only question arising or discussed was whether the effect of the (English) Married Women's Property Act per se created a contractual relationship of mistress and servant between a married woman living with her husband, and without separate estate, and their daughter, during the lifetime of the father-created in fact a fictitious cause of action unknown to the common law-a construction that, so far as I am aware, has never been contended for under our Act.
.....
¶ 29 .... The girl was earning weekly wages, which she handed over to her mother.
¶ 32 There will be judgment for the plaintiff upon the finding of the jury for $3,000, with costs.
David, I'm not sure how or where you found that, but it certainly made me laugh.
Where I found the case is where it's cited.
How I found it, of course, is by looking for something contained in the case, using a process that online databases simplify, which produced that case and others. I ran a search on the phrase "legal fiction" and variations. Finding it would have been much harder a generation ago.
Why I found it is because I needed - not for this thread - a good summary of the problems associated with legal fictions outliving their purpose. Para 29 contains this passage:
The portion of the case I put up, here, was intended to elict a chuckle. However, the case, itself, is a window into the mores of another time and involves an activity then considered serious enough to permit an action for damages. Also, consider this. $3,000 was a large amount in those days. The daughter's earnings were $1 a day so the award was the equivalent of 3,000 days of earnings, or about 8 1/4 years. Does that suggest to you that a good chunk of the award had nothing do with the mother's loss of the daughter's earnings?
Hmmm... that should have been the daughter's contribution to the family purse amount to a dollar a day