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Must Specify Whether Dowry is to be Returned at Marriage Breakdown

by Daniel Gloade on December 11, 2015

A recent case from the Ontario Court of Appeal discussed the issue as to what is to be done with a Dowry.  The decision is called Abdollahpour v. Banifatemi, 2015 ONCA 834 and can be found here.

The decision was written by the Honourable Mr. Justice Robert A. Blair.

In this case, Husband and Wife were from Iran.  The parties married in Canada in March 2012.  The Wife left in December 2013.  Prior to marriage, the Husband’s Parents signed a Deed of Gift giving half of the ownership of their home to the Wife.

After the separation, the Husband’s Parents wanted the 50% interest returned to them.  They argued that the transaction was a Mahr or dowry. In other words, it was a conditional gift.  The gift was only in place so long as the parties remained married.  The marriage failure resulted in the revocation of the gift.

Both the lower court and the Court of Appeal disagreed, however.  They looked at the source documents.

Both the Wife and the Husband’s Parents had legal counsel when they negotiated the terms of the Deed of Gift.  The Husband’s Parent’s lawyer recorded the transfer as a gift but did not record that the Deed of Gift was conditional on the marriage’s continuance.  The lawyer also used the word “irrevocable”.

There was also a marriage contract.  The marriage contract listed the 50% interest in the house as a “Dowry”.  The Husband’s Parents wanted to argue that the term Dowry has a specific cultural context in Iran.  The Honourable Justice Blair argued, however, that the cultural significance of the term should have been explicitly stated in writing so that court can easily interpret legal documents.  To do otherwise meant that courts would need to hear expert testimony from different cultures as to the meaning of specific words.  Clear written documents are particularly important in transactions involving land.

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