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In the recent decision of Abdollahpour v Banifatemi, the Ontario Court of Appeal said although there is wide variety of cultures in the Canadian mosaic, when trying to enforce a cultural tradition such as dowry, the terms must be expressly written.
A young Iranian couple, Ahmad Reza Abdollahpour (“Reza”) and Shakiba Sadat Banifatemi, were married in 2012. They separated in 2013, when Shakiba moved out of the home in which she had been living with Reza and his parents. As is the custom in Iranian culture, the groom’s family provided a dowry to the bride at the wedding. In this case, Reza’s parents transferred to Shakiba a 50% interest in a house they owned by way of a Deed of Gift.
When the marriage broke down, Reza commenced divorce proceedings and, along with his parents, requested that the 50% interest in the property be returned to them.
At the trial, the judge granted summary judgment in favour of Shakiba, who argued that the transfer of the 50% interest in the property was an irrevocable and unconditional gift. The husband and his parents appealed the decision and attempted to introduce new evidence which included an expert report from an Islamic scholar which confirmed that a dowry is to be returned in some cases in the event of a marriage breakdown.
The Court of Appeal held that “the issue is not whether Iranian culture or tradition features the characteristics explained by the expert, but whether the parties agreed to the transfer being subject to the conditions imposed by that culture or tradition. An expert cannot give an opinion as to what the parties’ intentions were.”
The parties had both received independent legal advice during the negotiations prior to the marriage and could have made the conditions of the dowry explicit in the Deed of Gift if they had wanted to.
This brief overview of a complex legal decision is for information purposes only and is not intended to be construed as legal advice. If you have questions about divorce or separation, please contact family lawyer Jason P. Howie, online or at 519.973.1500.
To read the full decision, click here.
