Dalhousie Journal of Legal Studies


In its attempt to preserve equality and justice in a multicultural society, Canada’s legal community has long grappled with the interaction between its civil laws and citizens’ observance of religious doctrine. The clash between a person’s sacred beliefs and the state’s role in protecting individuals from harmful religious practice has been expounded in prior jurisprudence, particularly in cases concerning Jewish divorce; yet, the judicial reasons in Bruker v. Marcovitz focused on contractual questions, in which the court sought a neutral position by averting a comprehensive discussion of the religious issues in the case. What is needed, and what will be found in this article, is an exploration of alternative claims upon which Jewish women may find a legal remedy when denied a bill of divorce from their husbands. A valid Jewish divorce requires a husband to provide his wife with a get, translated from Hebrew as a bill of divorce – these terms will be used interchangeably throughout this paper. If the husband refrains from granting a get, it may be appropriate for the state to step in. Such judicial intervention affects individuals and carries wide public policy implications. Thus, it is necessary to confront the logic of Jewish divorce cases, broadly, in order for Jewish women, whose religious practices may be unjustly imposed against them, to have alternative modes of recourse to the institution of divorce. This paper will begin by providing a contextual background of the Jewish law of divorce and the granting of a get. This discussion will look at the relationship between Canadian civil courts and the Beit Din – the Rabbinical court. The next section of this paper will examine the judicial reasons in Bruker v. Marcovitz, which centred upon the contractual issues between the two parties and generally avoided a comprehensive look at the subject of religion. I then will move on to discuss the trial and appellate court decisions of the case. A more detailed analysis of the 2007 Supreme Court of Canada decision will examine the ruling, with specific attention on the dissent and the freedom of religion defence that was proposed by Marcovitz. Next, this paper will detail the legislative amendments made to the Ontario Family Law Act and the Divorce Act. Attention will be directed toward the broad support that the amendments have garnered. I will argue that the additions to these legislative schemes have bound the courts to the religious issue of Jewish divorce, and that the courts are thus unable to escape religious dialogue in their decision-making processes. This paper will then deal with alternate divorce claims which may be potentially available to Jewish women like Mrs. Bruker, especially in cases where no contract has been formed or when an agreement is rendered unenforceable at law. The first alternative suggested is that the husband’s actions amount to a tort, as has been recently held in several cases in Israel. This position will be followed by an argument supporting a potential gender discrimination claim based on provincial human rights legislation. Additionally, I will propose the possibility of basing a claim on the best interests of the children, living and unborn. My final argument will explore what has been titled the “affidavit route,” which is available under the Ontario Family Law Act and the Divorce Act. The conclusion of this paper will comment on the general themes evident in the judges’ reasons at each stage of Bruker v. Marcovitz. Closing remarks will include a summation of my legal analysis regarding alternate routes for legal recourse and the effects that this article might have, not only for future Jewish divorce cases, but for the relationship between law and religion as a whole.

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Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 License
This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 License.