Davies, with a team consisting of William Brock, David Stolow and Brandon Wiener, successfully represented the appellant, pro bono, before the S.C.C., along with co-counsel Alan Stein who acted for Ms. Bruker in the courts below. 

In this case, the parties, both of the Jewish faith, reached an agreement with the assistance of counsel on corollary measures in the context of their divorce proceedings. That agreement included an obligation that the parties appear before the Rabbinical authorities "immediately" upon the pronouncement of a Decree Nisi of divorce being granted for the purpose of obtaining a traditional religious Get (a Get is a Jewish bill of divorce, which, under Jewish law, must be provided by the husband to his wife in a ceremony before the Rabbinical authorities, known as the Beth Din).

After the Decree Nisi was pronounced, the respondent refused to present himself before the Rabbinical authorities and persisted in his refusal for fifteen years. The appellant instituted civil proceedings and claimed damages from the respondent for being restrained from going on with her life, for being restrained to marry according to the Jewish faith, for being restricted of having children, and for loss of consortium. 

The trial judge awarded the appellant $47,500 in damages for the respondent's breach of his contractual promise. That decision was overturned by the Québec Court of Appeal which dismissed the action on the basis of its holding that where the substance of an obligation is "religious in nature", irrespective of the form in which that obligation is stated, a breach of that obligation is not enforceable by a court of law to obtain damages or specific performance. The Québec Court of Appeal held that ordering the respondent to pay damages would be inconsistent with the recognition of his right to exercise his religious beliefs as he saw fit without judicial intervention. 

The majority of the S.C.C. restored the judgment of the trial judge. 

The majority of the S.C.C. held that the fact that the promise to give a Get had "religious elements does not thereby immunize it from judicial scrutiny".  It held that the agreement to give a Get was a valid and binding contractual obligation under Quebec law and that such an agreement is consistent with public policy, the Canadian approach to marriage and divorce and the commitment to eradicating gender discrimination. The majority further held that there was no infringement of the respondent's freedom of religion, since his refusal to provide a Get "was based less on religious conviction than on the fact that he was angry with [the appellant]", and in any event, that: 

The public interest in protecting equality rights, the dignity of Jewish women in their independent ability to remarry, as well as the public benefit in enforcing valid and binding contractual obligations, are among the interests and the values that outweigh [the respondent's] claim that enforcing [the Get obligation] would interfere with his religious freedom.

Davies is involved in some of the largest and most important litigation matters in the country.  Please do not hesitate to call David Stolow (514-841-6567) or Brandon Wiener (514-841-6553) if you would like further information on this case or to obtain a complete copy of the decision. 

Davies Ward Phillips & Vineberg LLP, with over 235 lawyers, practises nationally and internationally from offices in Toronto, Montréal, New York and an affiliate in Paris and is consistently at the heart of the largest and most complex commercial and financial matters on behalf of its North American and overseas clients.

The information and comments herein are for the general information of the reader and are not intended as advice or opinions to be relied upon in relation to any particular circumstance. For particular applications of the law to specific situations, the reader should seek professional advice.
 
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December 14, 2007

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