Denying a Divorce (Extract)

By RON CSILLAG, TORONTO
Extract from an article in Issue 20, January 21, 2008 of The Jerusalem Report. For full story please subscribe to The Jerusalem Report click here to subscribe. Jewish women throughout Canada - and beyond - were buoyed by the Supreme Court's landmark ruling, awarding damages to a woman deprived of a get When Stephanie Bruker, 20, and Jason (Jessel) Marcovitz, 27, stood under a huppa (wedding canopy) on July 27, 1969, the Montreal couple never imagined that their marriage - and subsequent divorce - would some day make legal history in Canada. The couple - who had two daughters before the marriage broke down - began divorce proceedings in 1980. Their agreement included a promise by Marcovitz, an Orthodox Jew, to grant his wife a get, or writ of Jewish divorce, before a beit din (rabbinical court), but Marcovitz reneged. The promise was not just a verbal one, but a written contract anchored by both their signatures. Without the get, Bruker, like many hundreds of Jewish women in Israel and around the world, became an aguna (a "chained" woman) - unable to remarry Jewishly and unable to have more children, lest they be considered mamzerim (illegitimate offspring barred from marrying within the Jewish community). (Although according to Jewish law, aguna refers to a specific category of women who cannot obtain a divorce, the term is now popularly applied to all women whose husbands cannot or will not give them a get.) Marcovitz kept his ex-wife in limbo for 15 years. Finally, in 1995, he relented and granted Bruker a religious divorce. But by then she was almost 47, single and past child-bearing age. It was clear to Bruker that her ex had spitefully withheld the document and deliberately made her life miserable. So she sued him. Canadian courts, like others in the Western world, are loath to get involved in religious disputes (a few years ago, an Ontario lawsuit over kosher meat was swiftly referred to a beit din). But a Quebec court ruled in Bruker's favor, saying Marcovitz had breached a valid and binding contract. She was awarded $47,500 (Cdn) in damages. Marcovitz appealed, and the Quebec Court of Appeal reversed the decision, saying his obligation to grant Bruker a get was a religious one and not a matter for the courts. The court agreed that he had the right not to grant the get. Besides, he argued, his ex-wife had breached the terms of their agreement by restricting access to their children. He also disparaged her commitment to Judaism. But on December 14, the Supreme Court of Canada in Ottawa came down with a legal milestone that upheld the original verdict and awarded damages to Bruker. The court ruled that Marcovitz's refusal to give the get "was based less on religious conviction than on the fact that he was angry at Ms. Bruker." The 7-2 decision, written by Justice Rosalie Abella, the first Jewish woman appointed to Canada's Supreme Court (three of the nine judges are Jewish), made clear that Marcovitz's actions ran counter to bedrock Canadian principles such as fairness and equality. His recalcitrance "represented an unjustified and severe impairment on [Bruker's] ability to live her life in accordance with this country's values and her Jewish beliefs," said the ruling. The court weighed Marcovitz's claim to freedom of religion, but maintained that it "must be balanced and reconciled with countervailing rights, values, and harm, including the extent to which it is compatible with Canada's fundamental values." Moreover, the Supreme Court held that Marcovitz was bound by an enforceable contract, also trumping his claims of freedom of religion. Evelyn Brook, president of the Canadian Coalition of Jewish Women for the Get, called the decision a "great relief," but stressed that it "does not say that he had to give her a get. It simply said that because he didn't, there are things to forfeit." Extract from an article in Issue 20, January 21, 2008 of The Jerusalem Report. For full story please subscribe to The Jerusalem Report click here to subscribe.