Bruker+v.+Marcovitz

__**Facts:**__ - Bruker (wife) and Marcovitz (husband) negotiated a Consent to Corollary Relief as part of their divorce proceedings. - Clause 12 of the agreement stated that the parties agreed to appear before the rabbinical authorities to obtain a Jewish divorce, or //get//, immediately upon the granting of the divorce. - A wife cannot obtain a //get// unless her husband agrees to give it. Without one, she remains his wife and is unable to remarry under Jewish law. In this case, despite the wife’s repeated requests, the husband consistently refused to provide a //get// for 15 years, by which time the wife was almost 47. - The wife sought damages for breach of the agreement. - The husband argued that his agreement to give a //get// was not valid under Quebec law and that he was protected by his right to freedom of religion from having to pay damages for its breach.

__**Judicial History**__ - The trial judge found the agreement to be binding and awarded damages of $47 500 to Bruker. - The Court of Appeal overturned this decision on the grounds that the agreement was moral and therefore unenforceable by courts.

__**Issues**__ Is a //get// a valid and binding contractual obligation under Quebec law? **Held: YES** If so, does Marcovitz’s freedom of religion outweigh the consequence of not complying with such an agreement? **Held: NO,** public interest issues of equality outweigh Marcovitz's freedom of religion in this case

__**Holding**__ The damages, interest and indemnity awarded by the trial judge are upheld.

-** The fact that a dispute has a religious aspect does not by itself make it non‑justiciable. - Recognizing the enforceability by civil courts of agreements to discourage religious barriers to remarriage, addresses the gender discrimination those barriers may represent and alleviates the effects they may have on extracting unfair concessions in a civil divorce. - The civil law of Quebec recognizes __moral, civil (legal) and natural obligations__. Both moral and civil obligations are involved in this case, as a moral obligation may be transformed into a legally binding one, as long as there are two voluntarily consenting adults (which there were here). - Any impairment to the husband’s religious freedom is significantly outweighed by the harm both to the wife personally and to the public’s interest in protecting fundamental values such as equality rights, autonomous choice in marriage and divorc, as well as the public benefit in enforcing valid and binding contractual obligations.
 * __Reasoning (Abella J. for majority):__

__**Dissent (Deschamps and Charron JJ.):**__ - Bruker could still she could remarry and any children born of this new union would have had the same civil rights as “legitimate” children. Only her religious rights are in issue, and only as a result of religious rules. Where religion is concerned, the state leaves it to individuals to make their own choices. It is not up to the state to promote a religious norm. This is left to religious authorities. - Clause 12 cannot, legally, be characterized as a contract. It is a purely moral undertaking. Neither the undertaking to consent to a religious divorce nor the religious divorce itself has civil consequences. Since the parties did not envisage a juridical operation, it must be concluded that one of the essential elements of contract formation — the object (art. 1412 C.C.Q.) — is missing. - Even if this moral undertaking had been actionable, the assessment of damages would have required the court to implement a rule of religious law that is not within its jurisdiction and that violates the secular law it is constitutionally responsible for applying. The damages claimed by B are based on her observance of specific religious precepts. Freedom of religion is not recognized as a means of forcing another person to perform a religious act.