“The Divorce Act was amended to include s. 21.1 to address those husbands who use the Get as a “bargaining tool for child custody and access or monetary support”. This was explained by Justice Abella, writing for the majority of the Supreme Court of Canada, in the decision of Marcovitz v. Bruker, 2007 SCC 54. Justice Stevenson relied on the following passage from paras. 3-7 of Bruker and I do as well:
A get is a Jewish divorce. Only a husband can give one. A wife cannot obtain a get unless her husband agrees to give it. Under Jewish law, he does so by “releasing” his wife from the marriage and authorizing her to remarry. The process takes place before three rabbis in what is known as a Beth Din, or rabbinical court.
The husband must voluntarily give the get and the wife consent to receive it. When he does not, she is without religious recourse, retaining the status of his wife and unable to remarry until he decides, in his absolute discretion, to divorce her. She is known as an agunah or “chained wife”. Any children she would have on civil remarriage would be considered “illegitimate” under Jewish law.
For an observant Jewish woman in Canada, this presents a dichotomous scenario: under Canadian law, she is free to divorce her husband regardless of his consent; under Jewish law, however, she remains married to him unless he gives his consent. This means that while she can remarry under Canadian law, she is prevented from remarrying in accordance with her religion. The inability to do so, for many Jewish women, results in the loss of their ability to remarry at all.
The vast majority of Jewish husbands freely give their wives a get. Those who do not, however, represent a longstanding source of concern and frustration in Jewish communities (Talia Einhorn, “Jewish Divorce in the International Arena”, in J. Basedow et al., eds., Private Law in the International Arena: From National Conflict Rules Towards Harmonization and Unification: Liber Amicorum Kurt Siehr (2000), 135; H. Patrick Glenn, “Where Heavens Meet: The Compelling of Religious Divorces” (1980), 28 Am. J. Comp. L. 1; M. D. A. Freeman, “Jews and the Law of Divorce in England” (1981), 4 Jewish Law Annual 276; Bernard J. Meislin, “Pursuit of the Wife’s Right to a ‘Get’ in United States and Canadian Courts” (1981), 4 Jewish Law Annual 250; Mark Washofsky, “The Recalcitrant Husband: The Problem of Definition” (1981), 4 Jewish Law Annual 144; M. Chigier, “Ruminations Over the Agunah Problem” (1981), 4 Jewish Law Annual 207; Shlomo Riskin, A Jewish Woman’s Right to Divorce: A Halakhic History and a Solution for the Agunah (2006); Ayelet Shachar, Multicultural Jurisdictions: Cultural Differences and Women’s Rights (2001); and J. David Bleich, “Jewish Divorce: Judicial Misconceptions and Possible Means of Civil Enforcement” (1984), 16 Conn. L.R. 201).
In response to these concerns, after consultation with the leaders of 50 religious groups in Canada and with the specific agreement of the Roman Catholic, Presbyterian and Anglican churches, in 1990 the then Minister of Justice, Doug Lewis, introduced amendments to the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), Bill C-61, giving a court discretionary authority to prevent a spouse from obtaining relief under the Act if that spouse refused to remove a barrier to religious remarriage (s. 21.1). At second reading, the Minister outlined the motivation for these amendments, explaining:
The bill before us today is an amendment to the Divorce Act which would provide a court with discretionary powers to preclude a spouse from obtaining relief or proceeding under the Divorce Act where that spouse refuses to remove a barrier to religious remarriage and where the power to remove the barrier to religious remarriage lies solely with that person. Where the court is satisfied that the spouse who refuses to remove the barrier has genuine grounds of a religious or conscientious nature for doing so, it need not exercise its discretion to grant the remedy provided for in this legislation.
… A spouse should not be able to refuse to participate in a Jewish religious divorce — called a Get — in order to obtain concessions in a civil divorce. The Get should not be used as a bargaining tool for child custody and access or monetary support.
… I am concerned about protecting the integrity of the Divorce Act and preventing persons from avoiding the application of the principles contained in the act. For example, a wife may feel compelled to agree to custody arrangements which are not truly in the best interests of a couple’s child in order to obtain a Get.
I want to take a few minutes to describe briefly the dilemma certain Jewish persons face because of their religious divorce procedures. In the Jewish religion divorce is accomplished by the delivery of a Get from the husband and its acceptance by the wife in the presence of a Rabbinical Court. According to the Jewish religious traditions, the procedure cannot be changed. Without a Get, a Jewish woman cannot remarry in her own faith. Children of a subsequent civil marriage suffer religious disabilities. While difficult remarriage within the Jewish faith for a man in the same circumstances is not impossible,
. . .
… the government is moving where it can and where it is brought to the government’s attention to eliminate sexism and gender bias in the law.
. . .
It is the case that in some religions, the Roman Catholic, Greek Orthodox and Islam, annulment or divorce may proceed more easily and faster if the couple agree.
However, in all these cases, the authority to grant the annulment or divorce rests with the religious tribunal, not the couple.
An un-co-operative spouse may delay a decision, but ultimately he or she cannot prevent the religious tribunal from rendering its decision.
In these religions, the spouse initiating the action can ask the religious authorities to deal with this problem.
The Jewish spouse does not have that recourse.
(House of Commons Debates, vol. VI, 2nd Sess., 34th Parl., February 15, 1990, at pp. 8375-77)
[Italics in original.]”