December 18, 2007
I remember reading about an old case in first year contracts about a man whose horse lost a shoe while he was travelling to marry a rich heiress. The blacksmith he hired to replace the horsehoe did the work poorly and made the horse lame. Consequently, the man missed his wedding and the heiress married another person in his stead. The blacksmith as held liable for the loss of the marriage. At the time I read this story, I thought it was a very strange situation in which to involve the civil courts for relief.
Of course, since that time, courts have developed a more refined approach to the types of damages that may be sought and the types of obligations that are enforceable. For example, courts will no longer enforce a promise to marry someone because it is contrary to public policy to force marriage against a person's will.
Still, there are cases that arise, even some that make it to the Supreme Court of Canada ("SCC"), which test the boundaries of justiciability.
This past week, the SCC released its decision in Bruker v Marcovitz, [2007] 3 SCR 607, a case which dealt with the issue of whether an unfulfilled promise to perform a religious act can give rise to damages. Earlier this year, Eric Baum provided an excellent overview of the facts and issues in this case so I will not dwell on the details. In short, during the course of a divorce settlement, a husband agreed to provide his wife with a get, a Jewish divorce which would allow her to remarry and bear legitimate children under the Jewish faith. Afterwards, he reneged on the deal and refused to provide her with the get for a period of 15 years.
In a split decision, the SCC held that this promise by the husband to provide his wife with a get is a valid agreement and upheld the trial judge's award of damages. Essentially, the majority held that promises that contain a religious aspect may or may not be justiciable, depending on the specific facts of each case. In this case, the majority of the SCC looked to other values, such as gender equality and the social benefit of discouraging religious barriers to remarriage, in holding that this particular promise was justiciable and that the ex-husband's failure to fulfill the agreement gave rise to damages.
In contrast, the dissenting minority took a more categorical approach in refusing to intervene in private disputes of a religious nature where there is no violation of a rule recognized in positive law. The dissent held that since there had been a civil divorce between the parties, there were no legal barriers for the ex-wife in remarrying and having legitimate children. Only her religious rights as a result of religious rules were infringed and this was not a matter that the courts should determine.
This is one of those cases where I feel that the SCC made the right decision, but it is difficult to put a finger on exactly why. There are good reason why the courts should not intervene in enforcing promises or obligations of religious nature. However, on the facts of this particular case, the religious aspects of the obligation do not really go to the core of the issue. As the majority notes, the decision of whether to grant a get is not a matter of personal conscience or religious belief, since it is a ritual that is permitted by the faith. This is a vindictive ex-husband using the shield of religious freedom to go back on an agreement he freely entered into in order to prevent his ex-wife from remarrying.
The situations in which the courts should consider obligations of a religious nature is clearly one must be taken with great care and sensitivity. While the majority attempts to reach the correct decision on the facts of this case, the decision may not provide enough guidance for lower courts to determine when such obligations become justiciable.
6 Comments
Contrary to the author's opinion, I would go with the dissenting opinion in this case. While the husband may or may not have been vindictive in granting this request (I do not know the religious doctrines involved), the fact that the dispute involves beliefs of a purely religious nature that do not appear in any law of Canada, constitutional or otherwise, naturally precludes the courts from ruling on this issue. This issue needs to be resolved by a rabbi, not a secular court.
The author specifically justifies the court's opinion for reasons of gender equality and the social benefits of discouraging barriers to remarriage. Many religions have different roles for men and women and have more restrictive practices for divorce than the secular law allows. This ruling is an invitation to judges everywhere to begin allowing lawsuits that will impoverish religious institiutions for their differences with current secular law. The charter provides rights in s.2(a) the freedom of conscience and religion and in s.2(b) the expression of those beliefs.
Freedom means nothing if an individual or an institution can be sued in to poverty (even if they win) for having and expressing beliefs. Many religions do not allow women to become clergy for instance. Are they all going to be sued now?
As I said, these issues are of a religious nature and need to be resolved by a rabbi. If the wife doesn't like the rules being applied and the rabbi can't or won't rule favourably or change them, then perhaps she could go to another congregation, or another branch of the faith, or another faith. I don't think the courts should be interpreting and applying the Torah and applying penalties for compliance or non-compliance.
I am with the majority in this case, on the narrow ground that the husband clearly bargained to give the Get, as part of a package deal in which he knew what he was doing. This is not a case where the wife, or the court, is saying that a husband can be compelled to give a Get in the absence of any commitment to do so. Nor does the case say that the rabbinical tribunal would be compelled by civil law to accept the effect of the Get. It would be open to the rabbis to say "we do not believe this Get, offered by the husband under the terms of a negotiated contract, was given in the right religious frame of mind, and we find it ineffective in Jewish law." (Nothing in the court's judgment suggests that the rabbis would not have had this choice, in any event. The husband had eventually given the Get and the rabbis accepted it, on the eve of this litigation 12 years ago(!).)
I find Deschamps J's opinion disturbing for its ignoring of the circumstances of the civil contract, for large patches where she appear to be talking about compelling a husband to give a Get in the absence of any agreement to do so, and for a very flawed analysis of the impact of the Divorce Act's provisions on religious conditions to divorce relief.
But I find Deschamps J in general to be a very loose cannon on an otherwise fairly tight ship at the SCC.
I do think that the majority decision's 'case by case' analysis is going to lead to some awkward cases in the future. That may be inevitable in a multicultural, multi-faith society, especially with the completely subjective test for religious credibility in the Montreal condo case. But the evidence of harm in competing values is going to be hard to evaluate at the margin.
In Dechamps J's opinion, clause 12 of the contract was not enforceable: the contract was not ignored.
I find Dechamps J to be quite wise in stating (in para 184):
As counsel for the Canadian Civil Liberties Association in this case, I thought long and hard about the implications for separation of church and state - an area in which the CCLA has long advocated for an approach that insists upon public institutions remaining strictly secular.
However, I concluded that for the court to enforce the promise to give a get through a damages award did not trespass unduly into forbidden religious territory. The court didn't have to resolve any issue of religious dispute. Mr. Marcovitz brought the issue to the civil courts by agreeing to the consent order (roughly equivalent to a separation agreement). There was certainly a religious character to the obligation he assumed, but the source of the obligation wasn't religious. It was a purely civil document.
There is a tension between giving a broad scope for freedom of religion (which is proper), and taking the position that matters involving religion, even tangentially, have no place in the courts. If religious freedoms are to be broadly recognized and given effect, then courts will inevitably have to deal with disputes having a religious character.
One of the most interesting parts of the case was trying to come up with other examples illustrating the same principles. In our factum, we raised examples such as a contract to employ a rabbi, or to distribute bibles, or to build a mosque. All of these examples involve acts that would be regarded by many as having a religious character.
In the movie "Guys and Dolls", the character Sky Masterton (played by Marlon Brando) makes a bet with a room full of gamblers that if he wins his bet, they all have to attend a Salvation Army meeting (of a distinctly religious character). He wins the bet, and off they all go to the meeting. Not enforced by the civil courts, perhaps, but apparently enforceable under the gambler's code. (I didn't use this one in court but it has some parallels.)
If anyone has other examples, I would be interested to hear them.
Andrew,
The courts in some common law countries, especially in the United Kingdom, have been grappling with how to interpret contracts based - or purporting to be based - on the principles of Islamic Finance. Often, a contract will stipulate English law as the governing law (and England as the forum), but also indicate that the terms of the transaction should be adjudicated according to Islamic guidelines. One reason why we haven't seen similar cases in Canada is because Islamic Finance is still a relatively new concept here, although this is changing quickly.
If a guy promises to provide the wife with soething after a divorce he should probably do what he says, and if he was really Jewish in faith, aren't you suppose to uphold your word when you give it? Isn't it like an honoring God type of thing they have to follow? I think that isn't a very honarble thing to do in anyones eyes. The majority I agree with this time