( Disponible en anglais seulement )
In Abdollahpour v. Banifatemi, 2015 ONCA 834, the Ontario Court of Appeal ruled on how particular cultural practices should be treated when being used as a basis for legal arguments. The case involved an Iranian couple who separated after more than one year of marriage. In the initial proceedings, the Ontario Superior Court of Justice ruled that the wife’s dowry, which she had received by way of gift just prior to her marriage, need not be returned per Iranian custom. The Court of Appeal upheld that decision.
Ahmad Reza Abdollahpour (Reza) and Shakiba Sadat Banifatemi (Shakiba), an Iranian couple, married on March 25, 2012. In accordance with Iranian custom, the husband’s parents provided Shakiba with a dowry, or mahr, which included a 50% interest in a house that they owned. The interest in the property was transferred by way of a Deed of Gift.
Reza and Shakiba separated when Shakiba moved back into her parent’s house in December 2013. Upon the separation, Reza and his parents brought an action to have Shakiba’s 50% interest in the house returned to the parents. The principal argument raised in support of having the interest in the house returned was that its transfer to Shakiba was made as part of a dowry, and that, according to Reza and his parents, in Iranian culture and tradition the interest was therefore subject to a condition that Shakiba not leave the marriage, or, if she did, that the interest in the property would be returned to Reza’s parents.
Reza and his parents also raised several alternative arguments: that Shakiba’s father had promised Reza’s father that the interest in the property would be returned if Shakiba left the marriage, that Shakiba had entered the marriage with the fraudulent intent of obtaining a 50% interest in the property and being sponsored as a permanent resident of Canada, and that Reza’s parents had signed the Deed of Gift under duress or as a result of undue influence.
Shakiba brought a motion for summary judgment, which the Superior Court of Justice granted, rejecting all of Reza and his parents’ arguments. Reza and his parents appealed to the Court of Appeal.
The Court of Appeal’s Decision
The Court of Appeal was asked to consider fresh evidence comprised of expert opinion on the features of Iranian culture and tradition. While the Court was skeptical as to whether this evidence met the threshold for admission on appeal, Justice Blair, writing for a unanimous Court, stated that the evidence would not affect the outcome of the appeal because an expert cannot give evidence as to what the parties’ intentions were. The determination of these intentions was ultimately key to the Court’s decision.
Both the Court of Appeal and Superior Court ruled on the basis of the test for a legally binding gift set out in McNamee v. McNamee, 2011 ONCA 533. That case set out the test for the determination of a legally valid gift as:
- an intention on the part of the donor to make a gift without consideration or expectation of remuneration;
- an acceptance of the gift by the donee; and
- a sufficient act of delivery or transfer of the property.
Neither party disputed that the second and third conditions had been met, but Reza and his parents argued that they had not made a gift of the 50% interest in the house because the intention of the parties was that they were to provide a dowry, or mahr, and that in Iranian culture this dowry was subject to a condition that the interest in the house would be returned if Shakiba divorced Reza or left the marriage. The Court of Appeal rejected the argument that this condition should be implied into the gift.
The Court reviewed the history of the negotiations between the parties. Both parties had conducted considerable negotiations before the marriage and had obtained independent legal advice. The Court noted an email from Reza’s parents’ solicitor stating that the transfer was ultimately to make a “wedding gift to the kids.” The Court also mentioned that during the negotiations there was for a period of time an intention to have an interest in the house placed in trust for both Reza and Shakiba and that a draft of the trust deed said nothing about the trust being revocable on any failure to comply with any conditions regarding the marriage.
The most important evidence of the intentions of the parties was the Deed of Gift, which did not contain any conditions which would cause the return of the gift in the event of Reza and Shakiba’s separation, nor any evidence that this was the parties’ intention. Instead, it stated that the “Grantors wish to convey to the Grantee, irrevocably, a fifty per cent (50%) title interest in the said lands” and even included a full and final release with respect to this interest. The result of this analysis was that the first condition of the test in NcNamee v. McNamee was met and so the Court ruled that Reza’s parents had made an irrevocable gift.
The Court then addressed the alternative arguments Reza and his parents had raised. They started with the argument that Shakiba’s father had promised that the property would be returned to Reza’s parents if the couple separated. The Court rejected this argument for several reasons. First, there was simply no evidence to support their position. Second, Shakiba’s father was not a party to the transaction. Shakiba was an adult capable of negotiating and forming legally binding obligations for herself and her father had no power to enter into a legal arrangement to return her interest in a given property on her behalf. Finally, the Court noted that an oral agreement to have the property return to Reza’s parents would contravene the Statute of Frauds which requires that all agreements for the transfer of real property be in writing.
In response to the issue of the Statute of Frauds, Reza and his family attempted to introduce into evidence the marriage agreement signed between Reza on Shakiba on their marriage, which contained a “Dowry” provision that included the 50% interest in the house. The Court was uncertain that the marriage contract was admissible evidence in these proceedings, but decided to admit it solely for the purpose of its discussion on the importance of the “Dowry” provision. The Court flatly rejected the claim made by Reza and his parents that the “Dowry” provision could constitute a written promise to return the interest in the property upon the breakdown of the marriage. As with the Deed of Gift, there was no mention of any terms or conditions attaching to the transfer of the interest in the property. Reza and his parents had simply hoped to establish one by reference to the meaning of the word “Dowry” pursuant to Iranian custom.
The other claims that the marriage, and consequently the house, had been received as a result of fraud, and that the Deed of Gift was signed under duress or as a result of undue influence were rejected for lack of evidence and because Reza and his family had had the benefit of independent legal advice.
As the Court of Appeal stated, “a wide variety of cultures, and their norms and traditions, form an integral part of the Canadian mosaic.” In a multicultural society individuals may enter into any number of legally significant arrangements with certain expectations that the Canadian legal system does not contemplate, such as the gifting of a dowry on marriage. But the Court has made it clear that only the laws set out in the various elements of the Canadian legal system will govern those agreements and that particular cultural norms and traditions cannot be imported into a transaction simply by “reference to a concept such as ‘dowry’ which forms a part of a particular culture or tradition.”
It is important to note that the Court was not opposed to the idea that cultural norms and traditions can govern transactions. However, the concepts set out in these norms and traditions must be clearly stated in the transaction’s executing documents. Any cultural norms cannot simply be inferred when the transaction documents state a contrary intention. In this case, had Reza and his parents made it clear in the transfer documents, by which the 50% interest in the house was granted to Shakiba, that the interest was conditional upon Shakiba remaining in the marriage, their cultural norms and traditions regarding dowries would have been successfully imported.
There are numerous ways for the concept of a dowry to be introduced in common estate planning and gift-giving documents. Speak to your advisors about any cultural practices or expectations you may have when providing for a transfer of property. A valid gift will not be vitiated because unarticulated expectations are not met. Proper drafting can therefore safeguard against unintended consequences.
The author would like to thank the contributions by Benjamin Mann, Student-at-Law, to this article.