MONTREAL — The Supreme Court of Canada has turned down a request to rehear a case in which it upheld that damages be paid to a woman whose ex-husband denied her a get for 15 years.
Anne-France Goldwater, the lawyer for Jason (Jessel) Marcovitz of Montreal, filed a motion with the high court in January arguing that she should have an opportunity to argue against the constitutionality of a 1990 amendment to the Divorce Act, intended to alleviate the problem of former spouses refusing to grant or receive the traditional Jewish divorce.
Goldwater felt she had the right to reopen the case, although such a request is rarely granted, because the Supreme Court’s 7-2 decision, handed down in December in favour of appellant Stephanie Bruker, cited that amendment as part of its reasoning. Goldwater noted that the parties had agreed a few years ago not to introduce the constitutionality of the amendment, section 21.1 of the Divorce Act, into the case.
“No reasons were given [by the Supreme Court not to rehear the case],” said Bruker’s lawyer Alan Stein. “It was just dismissed with costs.”
The decision means Bruker will finally be paid the $47,500 in damages that the Quebec Superior Court awarded her in 2003, which with interests and costs amounts to about $103,000 today, she said. However, she expects it will all go to pay legal fees.
Bruker, reached in New York where she now lives, said the lesson of her long ordeal in court, which began when she sued Marcovitz in 1989 for damages, is that every Jewish couple should have a prenuptial agreement that makes clear what they will do in the event the marriage fails.
“And it should be written by a lawyer, not a rabbi,” she added. “The language has to be correct.”
She and Marcovitz did not have a prenuptial agreement, but did draw up a consent to corollary relief in 1980 as part of their divorce proceedings, in which they agreed to appear before a rabbinical court for the purpose of carrying out the get transaction immediately upon completion of the civil breakup.
The Supreme Court – unlike the Quebec Court of Appeal in its 2005 judgment, which overturned the 2003 decision – affirmed that this document had the weight of a contract, despite its religious content.
“I think the important thing was that it said we would ‘appear’ before the beit din. It did not force a religious obligation,” Bruker said.
On April 9, Shaare Zion Congregation will hold a panel discussion titled “The Supreme Court of Canada’s Get Law: Good Decision or Bad Precedent?” Lawyers Stein and Goldwater will be joined by McGill University religion professor Daniel Cere, who has criticized the decision, as well as by Rabbi Scott Rosenberg of the national beit din of the Conservative movement, and Concordia University religion professor and CJN columnist Norma Joseph, a longtime advocate for the rights of agunot.