Religious Divorce and the Authority of the Courts
Many faiths require that spouses obtain more than just a legal divorce, but a religious divorce as well. Spouses who practice Judaism, Islam, Catholicism and other religions may find that they require a religious divorce or annulment to continue to practice or participate in their faith to the extent they did while married, or to remarry, even if the legal divorce has been finalized.
In the lengthy decision of N.S. v. A.N.S., 2021 ONSC 5283, one of the issues before the Court was the husband’s refusal to give the wife a Get, which is a religious Jewish divorce and which only a husband can give. The evidence before the Court indicated that the husband was withholding the Get notwithstanding pleas from the wife, family, friends and rabbis, in order to obtain concessions from the wife in the divorce litigation and to “harass, threaten, intimidate and control the mother.” There was significant conflict as between the husband and the wife, the Jewish Family and Child Service, and the Court. There were also serious concerns regarding the husband’s mental health.
With respect to religious divorces generally, the Court noted that they have no authority to grant same, but that the Divorce Act provides that the Court may prevent a spouse from obtaining relief under the Divorce Act if that spouse refuses to remove a barrier to religious remarriage. The rationale for such provision, as explained by Justice Abella in the decision of Marcovitz v. Bruker, 2007 SCC 54, was to protect the integrity of the Divorce Act and to prevent persons from avoiding the application of the principles contained in the Act by using a religious divorce as a bargaining chip. Moreover, such provision was also intended to “eliminate sexism and gender bias in the law” as the granting of a religious divorce most often lies in the hands of the husband.
In this case, the husband was penalized on both legal and religious bases for refusing to give the wife a Get, the Court having struck his claim pursuant to section 21.1 of the Divorce Act and the Rabbinical Court having refused the husband membership in any Synagogue or other Jewish institution until such time as he provided the Get. While not the only consideration, such refusal also informed the Court’s determination to allow the wife to relocate with the children to Israel and granting the husband only supervised access of the children.