Andy Hayher

Dowry DisputeA recent decision from the Ontario Court of Appeal (Abdollahpour v. Banifatemi, 2015 ONCA 834) dealt with the issue of dowry in the context of property division in divorce proceedings. The parties were married in March 2012 in Ottawa, Ontario and they separated in December 2013 when the wife moved out of the home where the parties were residing with the husband’s parents. The parties were originally from Iran. In Iranian culture and tradition it is custom for the groom or the groom’s family to provide a dowry or Mahr to the bride on the occasion of the wedding. In this case, the husband’s parents transferred 50% interest in a house that they owned in Ottawa by way of a Deed or a Gift.

When the marriage broke down, the husband (and his parents) commenced divorce proceedings. As part of the proceedings they sought to have the 50% interest in the property transferred back to them. The argument advanced by the husband and his family was threefold. Firstly, the transfer was made as part of the dowry and, according to Iranian culture and tradition, it was therefore subject to a condition that the wife not leave the marriage and that, if she did leave the marriage, the property would be returned. Secondly, the husband argued that the wife’s father had promised that the property would be returned if the wife left the marriage. Lastly, the husband argued that the wife had entered the marriage for an improper purpose. Namely, that she used the marriage as way to procure permanent residency in Canada.

The wife brought a motion to have the claim dismissed. On December 31, 2014, Justice Robert Smith granted the wife’s motion and the claim was dismissed. The husband appealed to the Ontario Court of Appeal and sought to introduce fresh evidence in the form of a translated copy of the marriage contract and an expert report from an Islamic scholar confirming that, in certain circumstances, a dowry is to be returned by the wife upon the breakdown of the marriage and his opinion as to what the intention of the parties was at the time of the transfer.

In a unanimous (3-0) decision, the Ontario Court of Appeal dismissed the husband’s appeal. The court provided some useful direction with respect to importing cultural norms in divorce proceedings. The court held that norms and traditions of cultures cannot simply be imported into a transaction involving the transfer of real property by reference to a concept such as dowry. The families should have been explicit with any intentions and have expressly indicated what the terms of the transfer were. Justice Blair, writing for the Court held: “it is easy enough for them to say with clarity in the deed of gift expressly what it is that they intend with respect to the terms of the transfer. The parties did not do so in this case.”

The case clarifies what it will take to enforce norms and traditions from other cultures in Canadian courts. Reference to the cultural norm is not enough nor is reference to the Islamic Marriage Contract. It must be reduced to clear writing where the parties intentions can be deduced. The Court did not question if the tradition existed, the focus of the Court turned on what the intention of the parties were. While the expert could provide context in terms of the cultural practice, the Court of Appeal held that the expert could give evidence as to what the intention of the parties was at the time the transfer was made.