A civil divorce granted by Canadian family law courts may not be sufficient to permit parties to remarry in accordance with their culture or faith. For instance, pursuant to traditional Jewish law, a husband must grant his former wife a “Get” and the wife must cooperate and receive the Get. A Get is a writ which ends a Jewish marriage and its associated obligations. If the husband refuses to give a Get, or if the wife refuses to receive the Get neither party is free to remarry.
Another example relates to spouses married under Sharia law in Iran who separate and divorce under Canadian Law. Without an Iranian religious divorce, the spouses would not be considered validly separated and divorced in Iran, which prevents them from re-marrying under Sharia law. Further, the absence of a valid Iranian divorce places both parties in potential legal jeopardy in Iran as their rights and obligations towards one another continue to be governed by Iranian marriage law.
In Canada, sections 21.1(2)-21.1(6) of the Divorce Act, provides some authority to Courts to enforce a spouse’s right to obtain a religious divorce. For instance, when a refusing spouse refuses to remove barriers to permit the other spouse’s religious remarriage, the court can use their limited authority to strike out or dismiss the refusing spouse’s application. As a consequence, the refusing spouse loses the opportunity to partake in their own Canadian civil divorce proceedings, leading to a judgment on parenting, support and property issues that would likely not be in their favour.
In the 2014 case of Etemad v. Hasanzadeh, the Ontario Superior Court of Justice determined that it has jurisdiction to compel a party to obtain a religious divorce absent his or her consent. Further, the court considered that an Islamic divorce is readily obtainable in Ontario on the consent of the parties. The court also noted that without the Iranian divorce, the wife would still be considered married in Iran, notwithstanding that the parties have been divorced in Canada, but would effectively be barred from entering Iran.
Justice Myers addresses the same issue of whether the court may compel a religious divorce in the 2016 Ontario Superior Court decision of Salehi v. Tawoosi. In this case, the wife did not invoke section 21.1 of the Divorce Act because she had already begun her proceedings for a divorce in Iran. However, Justice Myers’ take on this issue is obiter. He stated that even if the issue of the enforcement of a religious divorce was before him, he would have serious reservations as to whether the court is properly able to force a party to grant a religious divorce.
Justice Myers distinguishes between the provisions of section 21 which permits the court to deny the refusing party the right to participate in their civil divorce, versus the power of the court to compel a party to do a religious act- for example, compelling a party to obtain a religious divorce. This can be problematic because requiring a party to obtain a religious divorce may be an infringement of the freedom of religion pursuant to the Canadian Charter of Rights and Freedoms.
Aside from Charter issues, the authority of the court to compel a party to obtain a religious divorce is limited by section 21.1(4) of the Divorce Act. The court may refuse to exercise its authority to require a party to cooperate in obtaining a religious divorce in the event that the refusing party provides satisfactory evidence. This evidence includes providing genuine grounds of a religious or a conscientious nature for refusing to remove the barriers to a religious divorce. This means that a party cannot refuse to cooperate in obtaining a religious divorce in bad faith, or in order to extract concessions from the other party in a civil divorce. But, a party may refuse to obtain a religious divorce if they can prove that doing so would genuinely be offensive to their own beliefs.
To date, it is unclear which evidence is required to satisfy the court under section 21.1(4) of the Divorce Act to show that a party has “genuine grounds of a religious or conscientious nature for refusing to remove the barriers” to a religious divorce. The question which remains is that if the refusing spouse is able to convince the court that cooperating with the religious divorce is offensive to their own beliefs, what would be the remedy of the requesting spouse? After all, absent a religious divorce the requesting party is not free to remarry and move on with their life.
It is recommended that if separating spouses decide to settle their matter out of court, a consent to the removal of religious barriers should be included as part of their separation agreement. In Bruker v Markovitz, the Supreme Court of Canada stated that “a contract dealing with a religious matter is enforceable, provided its object is not prohibited by law or contrary to public order.” Thus, if a religious barrier is addressed in a separation agreement, the court is likely to enforce it and also order damages against a spouse who refuses to abide by the agreement and provide their consent to the removal of a religious barrier.
Ken Nathens is a partner in the law firm of Nathens, Siegel
Bavneet Chauhan is a student at law with Nathens, Siegel.