Removing Barriers to Religious Remarriage in Canada: Rights and Remedies
Jewish Divorce, Remarriage and the Problem of Consent and the “Get”
Sections 2(4)-(7) and 56(5)-(7) of the Family Law Act, 1986
[para1] Although the Family Law Act provisions relating to religious remarriage could apply to any religion, ss. 2(4) to (7) and 56(5) to (7) of the Family Law Act were designed and developed to help solve a serious problem facing the Jewish community in Ontario. Under Jewish traditional laws, when a man and a woman seek a divorce a Jewish man gives a Jewish woman a piece of paper consenting to a bill of divorce or a ‘get’. The get must be given of his own free will and a Jewish woman must accept this get of her own free will. Not all Jews feel this is necessary, but a significant number do, no matter to which sect of Judaism they may adhere. The get is simply a contractual release between the parties. Unless a husband gives this get and unless the wife agrees to receive it, the couple, under Jewish tradition, is not divorced and neither party is free to remarry.
[para2] Without this freedom an observant Jewish spouse must force herself to overlook and set aside her deeply-held faith going back many millennia. When and if she then decides to remarry under secular or civil law before a secular judge without obtaining the get, she then must abandon her convictions and to some extent abandon traditional Judaism. Moreover, if such a spouse does remarry without his or her spouse’s consent to a Jewish divorce, then the children of a second and now strictly secular marriage may have their status within the observant Jewish community impaired, even though such a spouse will, in her second marriage, marry another Jew. Such children face religious restrictions on whom they can marry.
[para3] For these reasons, on separation or divorce, the obtaining of a get, or bill of divorce, from one’s spouse is critical not only to one’s own future if one is observant, but also to that of one’s children, one’s grandchildren and the generations to come.
[para4] In recent times, and with more increasing familiarity, a number of Jewish spouses are attempting to extort rights to which they would normally not be entitled under the Family Law Act or the Children’s Law Reform Act by offering to consent to a religious divorce only if their spouses give up property, support, custodial or access rights, or agree to a modification of these rights. Even where spouses do not resort to coercion, the matter of religious divorce frequently arises in negotiations leading up to the resolution of matrimonial disputes, which lead to separation agreements. Accordingly, the get has often become a negotiating chip to be exchanged for the modification of other rights.
Section 56(5)-(7) of the Family Law Act—Problems and Some Solutions
[para5] There should be no reason that this religious issue should be present in these negotiations. It is now the view of the Ontario legislature that abuse of religious custom has no place in interfering with matrimonial negotiations that lead to separation and divorce. Such legislation was necessary in light of a brief review of the common law principles of duress, undue influence and contracts void on grounds of public policy, which suggests that these common law principles may not be sufficient to render void a spousal agreement entered into under the threat of withholding a get (see Chitty on Contracts, Vol. 1 (25th ed.), 1983. Accordingly, s. 56(5) to (7) of the Family Law Act provides as follows:
56 (5) The court may, on application, set aside all or part of a separation agreement or settlement, if the court is satisfied that the removal by one spouse of barriers that would prevent the other spouse’s remarriage within that spouse’s faith was a consideration in the making of the agreement or settlement.
(6) Subsection (5) also applies to consent orders, releases, notices of discontinuance and abandonment and other written or oral arrangements.
(7) Subsections (4), (5) and (6) apply despite any agreement to the contrary.
[para6] This provision goes beyond the normal type of written agreement that can be set aside by the court, and includes, for the first and only time in the Act, a provision whereby agreements that are oral in nature can be set aside. Thus, even if the separation agreement or minutes of settlement made no reference whatsoever to the get, the entire agreement could be set aside if money was paid “under the table” or if consideration was exchanged for the get in any other surreptitious manner. Moreover, this section does not impose a test upon materiality: that is, the consideration paid or exchanged for the removal of barriers to one spouse’s religious remarriage does not have to be a material consideration, but merely a consideration or any consideration.
[para7] Of particular concern among some critics is that, because of s. 56(5), spouses who would normally provide or receive gets freely and willingly might be warned by their lawyers not to do so for fear that a carefully negotiated agreement could be set aside, even though a get played no role whatsoever in these negotiations. I would suggest that if any party wishes to consent to a get but is particularly nervous that the other party may later set aside an agreement merely because a get was exchanged, (even if the get played no part in the negotiations), then the parties should simply exchange affidavits under s. 2(4) to (7) in the manner reviewed below and in the context of an action. If no action was ongoing or pending during negotiations then an action may have to be commenced merely for the purpose of exchanging affidavits. Since the removal of barriers would then be made within the context of an action and pursuant to the provisions of ss. 2(4) to (7), the giving and the receiving of the get would therefore be sanctioned by statutory procedure as opposed to having taken place within the framework of a “negotiated” settlement.
[para8] Another course of action is to develop a standard acknowledgement clause in minutes of settlement or the separation agreement to the effect that “removal by one spouse of barriers that would prevent the other spouse’s remarriage within that spouse’s faith was not a consideration in the making of this agreement or settlement”. Notwithstanding the provisions of s. 56(7) (see above), such a statement would be a meaningful acknowledgement or indication between the parties. It might provide another hurdle that the court must overcome, since the onus would then likely be on the spouse seeking to set aside such an agreement to prove that he or she did not sincerely believe that such a statement was true.
[para9] If a civil court sets aside such an agreement under s. 56(5) and forces a spouse to return consideration obtained in exchange for a get, then under Jewish law the get may be impugned. A solicitor who is contemplating the setting aside of an agreement under this section would therefore be wise to consult with a Rabbi whose speciality and skill lies in the field of Jewish divorce before commencing an action under s. 56. Under the relevant circumstances, such an action could possibly jeopardize the divorcee’s status under Jewish marital law, even if she has already remarried under Jewish law.
[para10] One suggested method of employing this section is to pay the negotiated sum to her spouse, obtain the get, then immediately commence an action and obtain an interim ex parte order for the preservation of property, which in this case is money (under rules 44 or 45 of the Rules of Civil Procedure). Section 56(5) may be quite useful in respect of improvident settlements made prior to the coming into force of the Family Law Act (March 1, 1986). The Act is clearly retroactive in effect to at least June 4, 1985 but we would argue to even before that date, subject only to common law limitations of laches or the normal six-year limitation period under the Limitations Act. Section 2(4) to (7) of the Family Law Act—the Affidavit Route
[para11] In situations where one or the other spouse makes application for virtually any relief under the Family Law Act, even if merely for court costs if one is defending, the Ontario Legislature has enacted a procedure under s. 2(4) to (7) under the Family Law Act which obliges a recalcitrant spouse to remove all barriers that are within his or her control and that will prevent the other spouse’s remarriage within that spouse’s faith:
(4) A party to an application under s. 7 (net family property), 10 (questions of title between spouses), 33 (support), 34 (powers of court) or 37 (variation) may serve on the other party and file with the court a statement, verified by oath or statutory declaration, indicating that
(a) the author of the statement has removed all barriers that are within his or her control and that would prevent the other spouse’s remarriage within that spouses faith; and
(b) the other party has not done so, despite a request.
(5) Within ten days after service of the statement, or within such longer period as the court allows, the party served with a statement under subsection (4) shall serve on the other party and file with the court a statement, verified by oath or statutory declaration, indicating that the author of the statement has removed all barriers that are within his or her control and that would prevent the other spouse’s remarriage within that spouse’s faith.
(6) When a party fails to comply with subsection (5), (a) if the party is an applicant, the proceeding may be dismissed; (b) if the party is a respondent, the defence may be struck out.
(7) Subsections (5) and (6) do not apply to a party who does not claim costs or other relief in the proceeding.
[para12] Within ten days after the s. 2(4) affidavit is served, or such longer period as the court allows, the party which initiated the affidavit procedure may apply to the court to have his spouse’s proceeding dismissed or defence struck out by reason of his failure to comply with these subsections. The only way that the party who received such an affidavit can fulfil his statutory obligation and prevent himself from being faced with such an application is to complete whatever procedures are necessary to remove barriers within his control to permit his spouse’s religious remarriage within her faith. He must therefore immediately swear out and serve upon his spouse an affidavit stating that he has completed such a procedure and further indicating that he has removed the barriers that have been requested to be removed by his spouse.
[para13] The lawyer acting on behalf of a Jew who is concerned about obtaining a get should simply phone his client’s Rabbi and ask what has to be done. In almost all cases the procedure is invariably inexpensive, quick and simple. A get can be given and received in a matter of hours.
[para14] Although the court has a discretionary power, and not an obligatory one to dismiss an application or strike out a defence, it will probably closely scrutinize and be suspicious of any reason that a recalcitrant spouse might give for his or her failure to consent to the get procedure. This is particularly true insofar as s. 56(5) at the very least statutorily indicates the statute’s displeasure with spouses who use their ability to withhold their consent to a religious divorce as a negotiating tool in matrimonial disputes. The secular purpose of facilitating remarriage would also be in the mind of the court and we would suggest that the court should rarely, if ever, deny relief to a spouse who needs a get. Clearly such relief should not be denied because of any assertion that the recalcitrant party was withholding his consent for “religious reasons”. It has been documented repeatedly in the Rabbinic literature and by every informed Judaic source that in most cases there cannot be the slightest religious basis for the withholding of a get, and that, indeed, it is contrary to religious principles to do so. There cannot even be a financial reason for withholding a get as its cost is negligible. Even before the section came into force there was authority for the Supreme Court of Ontario withholding a portion of proceeds of the sale of matrimonial home pending the husband’s delivery of a get: See unreported decision of Solomon v. Solomon (Rutherford J., July 22, 1982, File No. D90844/81) and this decision was made over the objections of counsel for the husband (not appealed).
[para15] Since the enactment of these Family Law Act provisions, the very threat of these sections have substantially mitigated the problem of matrimonial blackmail in Ontario. Predictably the affidavit route ss. 2 (4) to (7) has been used more frequently than s. 56 and a brief survey of various counsel in the province suggest that once an application for such relief is made, the recalcitrant spouse eventually succumbs. The courts also do not appear nervous about applying the sections. In Glass v. Glass, unreported (Ont. H.C., Master Cork, February 23, 1987), digested at (1987), 6 L.W. 644-012 (6 Lawyer’s Weekly No. 44, March 27, 1987) and 3 A.C.W.S. (2d) 287, it was the husband who was seeking an order that the wife remove barriers to his religious remarriage. The wife argued that as long as they were civilly married, she could not remove all barriers to the husband’s religious remarriage. The court affirmed that the legislation envisioned the existing civil marriage and was intended to deal only with religious barriers whose removal was within the power of the parties. Mrs. Glass was ordered to give her irrevocable consent to a get. The court also ordered that the obtaining of a get be comparable with the civil divorce in the circumstances where a divorce action was proceeding.
[para16] In New York State, legislation similar to Ontario’s was recently upheld in a decision by its appellate court. The transfer of money and property under a settlement was stayed pending the husband’s compliance with the statute: Friedenberg v. Friedenberg, 523 N.Y.S.2d 578, January 19, 1988 (N.Y.S.C., Appellate Division).
[para17] Finally, on a practical note, due to the all-encompassing wording of s. 56 it is not advisable to make any mention of the religious divorce in minutes of settlement or a separation agreement. The alternative practice has grown to have these agreements signed, held in escrow and not delivered until the get procedure has been completed.
[para18] Recently, in the late fall of 1988, the United States Supreme Court confirmed the decision of the New York Appellate Court in the case of Shragai (unreported) by refusing the husband’s application to stay the lower court order that he be imprisoned for failing to give his wife a get. Mrs. Shragai had successfully registered an Israeli rabbinical court order that Mr. Shragai give his wife a get in New York’s court system. However, Mr. Shragai refused to honour what then became a New York court order on the constitutional ground that such an order violates Mr. Shragai’s freedom of religion under the United States Bill of Rights and its Constitution. By affirming the lower court decision, the United States Supreme Court has confirmed the appellate and lower courts’ view that Mr. Shragai’s failure to grant his wife a get offended public policy, and that his arguments raised no substantial constitutional issue. This decision substantially answers and dispenses with any of the constitutional objections to the Ontario Family Law Act and its sister legislation in New York State.
[para19] Effective August 12, 1990, Canada’s Divorce Act was formally amended by the proclamation of Bill C-61. Essentially, under Section 21.1 of the amended Act, after the deponent serves an affidavit reciting the other spouse’s refusal to remove barriers to the deponent’s religious remarriage within the other spouse’s control, the court has the discretionary power to dismiss any application filed under the Act, and to strike out any other pleadings and affidavits filed by such a “recalcitrant” spouse. If a husband refuses to give his wife a get, or if a wife refuses to accept same, then either can thus be refused the right either to present or defend any motion or claim for a civil divorce or corollary relief, including motions or claims for spousal support, child support, custody, access or the variation of any existing divorce judgments for such relief.
[para20] As a consequence of the ability to frustrate a defence to a variation claim, a Jewish spouse who needs a get to remarry, but who has already been civilly divorced by a court judgment rendered several years ago, can now bring a claim to increase child or spousal support and prevent her spouse from defending such a claim until he gives her a get. Needless to say, the relief under s. 21.1 cannot be brought independently of a proceeding for corollary relief or for variation of such relief and, for that reason, there should be some legitimate basis for the claim – such as true need or new parental conduct during access visits (or the lack of them) that adversely affects the child’s best interests.
[para21] Some of the differences between the Family Law Act and Divorce Act procedures are summarized as follows:
1. 2. 3.
Unlike the Family Law Act procedure, the Divorce Act procedure may prompt a court to prevent or delay the resolution of a recalcitrant spouse’s custodial or access claims to his/her child or children. Subject to the best interests test, a spouse who refuses to remove the religious barriers within his or her control could be restricted or even prevented from seeing his or her children: s. 21.1(3) (c) and (d).
The recalcitrant spouse under the Divorce Act normally has fifteen (15) days, not ten (10), to file his own affidavit confirming his having removed the religious barriers: s. 21.1(3) (a).
Unlike the Family Law Act, the Divorce Act permits a court to excuse a recalcitrant spouse from removing religious barriers if the spouse can satisfy the court that he has genuine grounds of a religious or conscientious nature for refusing to remove such barriers within his or her control: s. 21.1(4)(a) (b).
This apparent loophole is difficult to invoke because,
(i) the onus is on such a spouse refusing to give a get to make this expensive argument succeed, not the spouse requesting the removal;
(ii) under Jewish law there is no religious ground for refusing to remove barriers to one’s spouse’s religious remarriage once marriage breakdown has occurred; there is not even a one-year separation prerequisite before divorcing;
(iii) unlike the Family Law Act affidavit, the Divorce Act affidavit filed by the spouse requesting the removal must, inter alia, specify “the date and place of the marriage, and the official character of the person who solemnized the marriage [i.e., if the marriage officer was a rabbi or judge]”.
Presumably, a spouse who allowed himself or herself to be married by a rabbi cannot consistently maintain that he or she may have been a religious Jew for the purpose of marriage, but not divorce. Other extrinsic evidence pertaining to past participation in Jewish life, such as a bar mitzvah or even infrequent synagogue attendance also would be useful. Moreover, wise counsel who anticipate such a defence should “negotiate” for the get in writing and expressly state on such correspondence that the letters are not without prejudice. Including such exchange of letters in the affidavit may vitiate the recalcitrant spouse’s claim that his grounds for refusing to remove barriers on religious or conscientious grounds are truly “genuine”.
The section was designed to make the entire amendment more constitutionally defensible and less prone to attack on the grounds that it offends a recalcitrant spouse’s freedom of religion under Canada’s Charter of Rights.
4. Unlike the Family Law Act provisions, s. 21.1(b) of the Divorce Act excludes from its operation those spouses subject to religious divorces where “the power to remove the barrier to religious remarriage lies with a religious body or official”. Only Judaism (and occasionally Islam) vests control to remove barriers with the spouses themselves. Rabbis merely supervise or “umpire” the proceedings—they cannot effect the divorce itself. However, the Catholic Church and, in most cases, the Islamic religious courts can and do effect the termination of a marriage—often against the will of one of the spouses, albeit in Catholicism the process is annulment. The purpose of s. 21.1(b) was to ensure that the jurisdiction and practices of non- Jews would not be affected in any way, shape or form by the passage of remedial legislation designated to primarily assist blackmailed Jewish spouses whom the rabbis are powerless to assist. By contrast, a Catholic spouse may delay the annulment by refusing to co-operate, but he or she cannot prevent the annulment forever. For the remedial impact of these sections on Islam, see my article in 1 C.F.L.Q. 29 or Chapter 3 of my book Religion and Culture in Canadian Family Law (Butterworths 1992). In certain cases, the sections can help an Islamic woman significantly.
[para22] Finally, the constitutionality of allowing a court to indirectly oblige a spouse to remove religious barriers to remarriage in the face of a spouse’s “religious freedoms” was confirmed by the unreported decision of Shragai in the United States Supreme Court, confirming a New York appellate court’s decision to send a Jewish male to jail for refusing to give his wife a get. This decision was made in the face of strenuous “religious freedom infringement” arguments by the husband. However, the appellate court ruled that it was against public policy for him to be able to prevent his wife from remarrying within her own faith. This case, although not binding, should be very persuasive in a Canadian court.
[para23] Recently a Quebec Superior Court in E.S. v. O.S. confirmed the use of section 21.1 of the Divorce Act to “level the playing field” in situations where husbands use their ability to withhold their consent to a get to extract concessions. Therefore, Mr. Judge Tannebaum dismissed the husband’s contention that he was refusing to give a get on “conscientious grounds”. The Court concluded that the husband’s willingness to grant the get only after the civil divorce suggested that his real intention was to use his power over the wife in settlement negotiations. His offer to give the get after the civil divorce is meaningless since he would, in no way, be bound to do so. In the Judge’s view, section 21.1 clearly indicates that the barriers are to be removed prior to the completion of the civil proceedings, since it empowers the Court to dismiss any proceedings taken by the refusing spouse. Moreover, since the husband consents to the get once the civil divorce is pronounced, it was clear to the Court that no moral, conscientious or religious grounds really existed for his refusal. Accordingly, the husband’s proceedings were dismissed: E.S. v. O.S.  Q.J. No. 1263, Quebec Superior Court, October 6, 1995.
[para24]Section 21.1 of the Divorce Act and Sections 2 and 56 of Ontario’s Family Law Act provide remedies for Jewish and some Islamic spouses whose partners refuse to give their consent to a religious divorce. Although these sections have been law for several years, a recent survey of lawyers across Canada has shown that very few matrimonial counsel are familiar with these provisions or the reasons behind them. Basically, these laws are designed to thwart the coercive conduct of a spouse who withholds his or her consent to a religious divorce, called a “get” in Judaism. A similar problem exists among some Islamic clients. Caution should be used in employing these sections in a given case without close consultation with a religious figure, such as an experienced Rabbi. According to some opinions, counsel who employ these remedies without such consultation could contravene Jewish or Islamic law, rendering any prospective religious divorce invalid if sanctions are imposed by secular courts. In certain fact situations, the employment of such remedies imposed by a secular court might be considered “coercive” and improper by a Jewish religious court, since a spouse’s consent to a Jewish divorce or “get” must be given by one’s “free will”. However, others have expressed the view that the spouse who refuses to consent to a religious divorce and is now faced with a Court’s order will do everything possible to convince religious officials that he is in compliance with religious law if he wishes to escape sanctions that the secular courts would impose under these sections. In other words, the problem of “religious law” making it difficult to comply with the Court’s order will become his problem, not the problem of the woman or man who is suffering from an inability to remarry within Judaism or Islam. Such commentators suggest that it would certainly not be the problem of the secular courts which are governed by the Divorce Act or Ontario’s Family Law Act, not Jewish or Islamic law. These contradictory views on how best to approach these legislative remedies have yet to be reconciled, although the debate has recently come alive in a number of recent cases and articles that have appeared. Both have merit. One does not wish to do anything for a client that may frustrate her ultimate goal of obtaining a Jewish or Islamic divorce under religious law. Consultation with religious leaders therefore appears to be imperative. However, it equally may be true that these concerns should not necessarily stop counsel from employing these very unique statutory remedies. The spouse who withholds his consent often realizes that it is in his best interests to give consent when faced with the threat of these provisions. In fact, a study prepared by the federal government has confirmed that this very threat has proved to be effective. The problem has not vanished, but has been greatly ameliorated as a direct result of the legislation.