MONTREAL — The constitutionality of a 1990 amendment to the Divorce Act, intended to alleviate the problem of ex-spouses refusing to give or receive a get, is being challenged in a motion to the Supreme Court of Canada to re-hear a case.

The motion has been brought by Anne-France Goldwater, lawyer for Jessel (Jason) Marcovitz, the Montreal man who in December was ordered by the Supreme Court to pay damages for withholding the get, a traditional Jewish divorce, from his former wife for 15 years, despite a written commitment to do so without delay.

Goldwater argues that the Divorce Act amendment, section 21.1, breaches the traditional boundaries separating church and state and infringes upon the Canadian Charter of Rights and Freedoms, specifically, the protection of religious conscience. She also argues that civil law can’t be used to sanction someone for failing to perform a religious obligation.

Section 21.1, which does not mention Judaism or any other religion explicitly, obliges divorcing couples to remove “barriers” to the other’s religious remarriage before the civil divorce can be finalized.

Goldwater said she didn’t enter an argument on the constitutionality of the section when Marcovitz’s ex-wife Stephanie Bruker’s appeal was heard by the Supreme Court in December 2006, because Marcovitz had agreed in 2001 not to do so before Bruker’s lawsuit was heard in Quebec Superior Court. Marcovitz’s main argument has been that the case, because of its religious nature, was out of the bounds of Quebec civil law.

At the suggestion of Superior Court Judge Israel Mass, all parties, including the Attorney General of Canada, agreed not to raise the constitutional question because a consent to corollary relief between Bruker and Marcovitz, in which they agreed to obtain a Jewish divorce immediately after their civil break-up, was completed in 1980, 10 years before section 21.1 came into effect.

But Goldwater contends the Supreme Court should now hear that shelved constitutional challenge because its Dec. 14 judgment, written by Justice Rosalie Abella and carried by a 7-2 majority, makes extensive reference to the section.

“Without section 21.1, a large part of the reasoning of the majority would have to be excised from the judgment,” she states.

The Supreme Court judgment – upholding a 2003 Quebec Superior Court ruling awarding Bruker $47,500 in damages, which was overturned by the Quebec Court of Appeal in 2005 – “essentially pre-decided the constitutional validity of the section” without considering the arguments Marcovitz’s lawyers wished to make, Goldwater said.

Bruker launched a lawsuit against Marcovitz in 1989. She, too, dropped her intention to cite the new Divorce Act section in her argument in 2001.

The case in Superior Court proceeded based on laws in existence before 1990.

Goldwater argues that a consent to corollary relief, a document sometimes drawn up between divorcing spouses, is not a “contract” in either civil or common law, and therefore not in the domain of courts.

She also says that the 2004 “sukkah case,” in which the Supreme Court upheld the right of a group of Montreal Jewish condominium owners to decide for themselves how they interpret their religious beliefs and that a court cannot decide on the genuineness of those beliefs, is applicable in this case, too.

Bruker’s lawyer, Alan Stein, said he will “vigorously” contest Marcovitz’s motion.

“Every aspect of this case has been argued at great length before the Supreme Court already,” he said, adding that it’s too late for Marcovitz to bring up an argument he agreed to drop years ago.

Stein also noted that the high court only orders re-hearings in “very, very exceptional cases.” The fact the judgment was upheld by a “substantial” 7-2 margin makes it highly unlikely, in his opinion, the motion will be granted.

He added that until the re-hearing process is completed, Bruker won’t receive the damages she was awarded.

Stein said the case concerns private law alone. The only question was whether it was justiciable under Quebec civil law and the Quebec Charter of Human Rights and Freedoms, and that has already been established.

He said Abella was entitled to cite section 21.1 to the extent she did, and did not comment on its constitutional validity.

The motion includes an affidavit from University of Toronto professor Rabbi David Novak, who holds the J. Richard and Dorothy Shiff Chair of Jewish Studies and is vice-president and co-ordinator of the panel of inquiry on Jewish law for the Union for Traditional Judaism.

He warns against the encroachment of secular authorities into Jewish matters, especially marriage and divorce, saying non-Jewish institutions shouldn’t be used to solve the problem of recalcitrant spouses.