International Journal of Coercion, Abuse, and Manipulation Volume 3 2022 70
was “whether the civil courts can be used not only as
a shield to protect freedom of religion, but also as a
weapon to sanction a religious undertaking” (Bruker
v. Marcovitz, 2007, SCC 54, [2007] 3 S.C.R. 607, Para.
101). To the dissent, which overlooked the implications
and consequences of the ghet refusal, the husband’s
denial to grant a ghet did not affect his wife’s civil rights
because she was free to remarry and have legitimate
children under Canadian and Quebec law. Only her
religious rights were at issue, and she was free to accept
the religious consequences of her husband’s refusal,
or to discontinue her membership in that religious
community. The dissenting justices argued that, where
religion is concerned, the state leaves it to individuals
to make their own choices, and such decisions should
not be regulated, interfered with, or sanctioned by the
state. These justices focused on the principle that the
courts will remain neutral when religious precepts are
in issue. Given that there are no civil-law rules with
respect to the absence of a ghet, all consequences flow
from religious rules.
The dissenting judges issued a dire warning that,
by intruding into religion and analyzing the legal
meaning of the Ktubah and the religious consequences
of the ghet, the courts can be dragged into potentially
explosive cases in which they have no place. In these
judges’ view, under both Canadian and Quebec law,
nothing prevented Ms. Bruker from remarrying if
she chose to do so. “Only her [Ms. Bruker’s] religious
rights are in issue, and only as a result of religious
rules” (Bruker v. Marcovitz, 2007, SCC 54, [2007] 3
S.C.R. 607, para. 131). The judges failed to recognize
the significance of a ghet to a Jewish woman, and how
the absence of one can have detrimental consequences
for her. The only way Ms. Bruker could have continued
with her life despite Mr. Marcovitz’s refusal of the ghet
was to renounce her Jewish identity.
Bruker, however, was not asking the court to rule on
the validity of Jewish divorce law and the principles
surrounding the granting of a ghet: Justice Abella
specifically confirmed this point when she stated that
the court was not dealing with the judicial review
of doctrinal religious principles, such as whether a
particular ghet is valid. Justice Abella concluded that the
religious elements of the husband’s promise to provide
the ghet did not “immunize it [the promise] from
judicial scrutiny” because it was “negotiated between
two consenting adults, each represented by counsel, as
part of a voluntary exchange of commitments intended
to have legally enforceable consequences” (Bruker v.
Marcovitz, 2007, para. 47).
Bruker sought damages because her husband was
depriving her of her ability to move forward with
her life. Religion orients the individual in the world,
shaping one’s perception of the social and natural order,
and providing a moral framework for one’s actions.
As such, it represents a significant connection with a
community of believers. And although individuals may
be capable of reflecting upon and revising particular
aspects of their worldviews, it may be difficult or
impossible for them simply to discard and replace
their most basic values and beliefs, or to walk away
from their religious communities. The minority’s point
of view comes from a secularist conception that sees
religious community as an association people can join
or quit as they desire. This point of view does not seem
to account for the importance of informal religious
norms, community bonds, and a sense of belonging for
the religious individuals (Kleefeld &Kennedy, 2008).
Judicial Dilemma
While it is tempting to defend categorically, as did
Justice Deschamps in the dissenting opinion (Bruker
v. Marcovitz, 2007, SCC 54, [2007] 3 S.C.R. 607, para.
102), that civil courts and religious undertakings must
operate in non-intersecting spheres, the reality is
more complicated. 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. Prior jurisprudence has explained
the clash between a person’s sacred beliefs and the state’s
role in protecting individuals from harmful religious
practice. Judicial precedent is such that the courts see
religious marriage as a marriage agreement pursuant to
Section 48 of The Family Relations Act11 and therefore
interpretation of the marriage agreement is entitled to
the court’s help (Kariminia v. Nasser, [2018] BCSC 695,
para. 26 Nathoo v. Nathoo, [1996] ABQB 175, para. 25
Amlani v. Hirani, [2000] BCTC 1023 [SC] 2000 BCSC
11 The Family Relations Act makes provisions for marriage, divorce,
and family relations between spouses or unmarried couples, including their
children, equity, and related matters. The act recognizes marriage as a form
of partnership with equal positions of spouses within marriage, and also the
spouses’ mutual obligations in family relationships.

ISSN: 2710-4028 DOI: https://doi.org/10.54208/0003 71
1653, para. 1). However, this type of intervention does
not exist when the case concerns Jewish divorce.
The judicial reasons for the court’s decision in Bruker
v. Marcovitz focused on contractual questions. In doing
so, the court sought a neutral position by averting a
comprehensive discussion of the religious issues in
the case, stating that these matters fall under the guise
of freedom of religion. The dissenting judges tried
to avert a discussion on the concept of ghet refusal
as a legal issue, claiming that, since the prenuptial
agreement dealt with religious matters, the court
was unable to uphold the execution of the agreement
or prevent its breach. Madam Justice Deschamps,
with Madam Justice Charron concurring, held that
Marcovitz’s promise was not legally binding because
it lacked a justiciable “object,” which is an essential
element of an enforceable contract in civil law. Justice
Deschamps found that, because a religious divorce has
no civil consequences, it is not an agreement that may
be recognized by law. (Bruker v. Marcovitz, 2007, SCC
54, [2007] 3 S.C.R. 607, para. 102,122–132).
On several other occasions, however, the court did
take a position on religious matters, stating that
fundamental rights of the individual should not be
sacrificed in the name of religious freedom (Syndicat
Northcrest v. Amsalem, [2004] 2 S.C.R. 551, 2004 SCC
47, supra at paragraphs 136 R. v. Big M Drug Mart
Ltd., [1985] 1 SCR 295, supra at paragraph 95 Trinity
Western v. British Columbia College of Teachers, 2001,
SCC 31, [2001] 1 SCR 772, supra at paragraph 64). Here
too, the court should have addressed how breaching
the contract by refusing to grant Ms. Bruker a ghet was
infringing on her fundamental rights. The denial of the
ghet impeded Bruker’s right to choose in her marriage
and divorce. The decision prevented her from meeting
or dating an eligible Orthodox Jewish man, let alone
marrying one. Because the couple brought this issue
before the civil court, it was necessary for the court
to evaluate the dispute in both the civil and religious
contexts, and the effect of one on the other.
Conclusions
A husband’s refusal to provide a ghet is an obvious abuse
of power (albeit one that is historically and culturally
permissible in terms of religious belief and practice).
Mesuravot ghet should not have to face a choice
between remaining in their religious communities
and in limbo, or gaining freedom but losing their
friends, families, and core systems of meaning, which
places them outside their social fabric. State law must
simultaneously protect women both from abuses that
may result from their religious affiliations and their
right to divorce, while it still promotes their right to
practice their religion. Even though women choose to
remain Jewish, the state’s obligation is to make sure
they are not discriminated against based on gender,
and that no violation of female human rights occurs.
It can also be argued that the court is seeking to allow
certain aspects of religious belief and practice to be
deemed contractually unlawful while it allows the rest
to remain in place to uphold freedom of religion—
hence, the dissenting opinion of the court that this is
jurisdictional interference even if it can be justified on
the basis of breach of contract.
Gender Inequality and Oppression Issues
The dissent at the Supreme Court of Canada in Bruker
v. Marcovitz did not connect the case to larger issues
of gender inequality or oppression. Madame Justice
Deschamps frequently observed “that a religious
divorce requires mutual consent, and that the wife
no less than the husband has the power to prevent a
divorce” (Bruker v. Marcovitz, 2007, SCC 54, [2007] 3
S.C.R. 607, para. 116). This statement demonstrates a
reluctance by the court to connect Bruker’s case to the
wider discriminatory implications of religious disputes
wherein men under Jewish law enjoy the power to
withhold a ghet. This power then becomes an effective
bargaining endowment in the resolution of civil family
law disputes (Mnookin, R., &Kornhauser, L., 1979).
The complicating factor in this case was that, by
virtue of Jewish religious law and practice, the power
to deliver the ghet is irregular and lies primarily in
the hands of the husband. He is the only person able
to release the bond, and he can use his power in this
regard to subjugate women (Jukier &Woehrling, 2012,
p. 164). Consequently, leaving the termination of the
marriage to the husband’s whims could potentially lead
to inequitable discrimination. Abuse of ghet refusal is
difficult because it follows a woman everywhere. When
a woman removes herself from the environment of
physical abuse, it stops but the abuse of ghet refusal
is permeating. Sometimes, Jewish women have been