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law Times • July 25, 2011 Oct. 6 election, one thing is certain: it will be a little less colourful with the absence of the NDP's Peter Kormos. Kormos, MPP for W Welland since 1988 and currently the NDP's justice critic, is a criminal lawyer by trade and a populist politician who was passionate about his role in the house and untiring in bringing issues forward. Even in the dog days of sum- mer last week, Kormos was hold- ing court while comparing Con- servative Leader Tim Hudak and Premier Dalton McGuinty to "two boys peeing in the sandbox" and adding that the Liberals have "more spin cycles than a Maytag." I fi rst met Kormos when the Toronto Sun assigned me to in- terview him as he fi rst ran in a byelection sparked by the depar- ture of another NDP populist, Mel Swart. Th e assignment edi- tor called me aside and noted, with a grin, that "apparently, this guy was in the pornography business and has all kinds of out- standing charges." Th is was good dirt for a right- wing paper looking to stir things up in an area that had been staunchly pro-labour for years, so I trekked down the QEW and cornered Kormos in his offi ce where I found him with his feet up on the desk. "Oh yeah, that's right, I worked the bookstores on Yonge Street until 2 a.m. and then got up and went to school," he recounted re- cently at Queen's Park. "When I was in law school at York Univer- sity, I worked at Canadian Tire, literally selling tires, at Keele and Finch and then Friday and Sat- urdays worked at a gas station at midnight. I would go 48 hours without sleep every weekend. Th is got me in trouble with the faculty because they didn't like their stu- dents working like that." And the charges? Th ere were unfi led tax returns and some speeding tickets. Kormos' re- sponse was just as direct. You couldn't help but like the guy at the fi rst meeting. He was direct, smart, funny, and clearly engaged in politics for all of the right rea- sons. What you see is what you get from Kormos. Th e experience of hard work and the value of a dol- lar are deeply ingrained in him, something that resonates with his constituents. Called to the bar in 1980, Ko- rmos was a successful criminal lawyer but a diehard political ac- tivist since the 1960s. His activism started when he was expelled and marked as a rabble-rouser for lead- ing a high school walkout. Bitten by the political bug, he went on to work on local campaigns and was himself elected to Welland council before running provincially. Over the years, Kormos has never wavered or compromised on his principles, a stance he took to the point where he spoke out NDP maverick will be missed Inside hen the Ontario legislature re- sumes after the COMMENT PAGE 7 Husband's atheism leads court to nix Muslim marriage contract Queen's Park By Ian Harvey against party leader and then- premier Bob Rae on public auto insurance and the social contract. For a while, Kormos was min- ister of consumer and commercial relations, a position he lost follow- ing his ill-timed appearance as a Sunshine Boy in the Sun. While he was fully clothed, the image was too much for his humourless socialist colleagues. Kormos found himself dumped on the back- benches where he and a couple of other mischief-makers formed the unoffi cial opposition on the government side and continued to speak their minds. Indeed, many have tried to silence Kormos, but none has succeeded. Th ose who worked with him on both sides of the house and in the civil service, however, will attest to his integ- rity and willingness to get on- side with a good idea. From fi libustering in the house to inviting Davenport MPP Tony Ruprecht to join him at the tat- too parlour, Kormos was always entertaining. "If you want to join me, we'll go to the tattoo parlour, line up the belly, and write, 'Upon death, cut here. Take what you need,'" he said in the house one day while campaigning for legal amendments to presume consent for organ donations, an issue he's still tirelessly supporting. "Th e liver may have some bad spots that are going to need cutting out, but maybe one or the other of the kidneys can be used." It was classic Kormos with the quips and stunts that got your at- tention and always included a pas- sionate message. Looking back, he says, every day was a highlight. "Every day, I had a soapbox to rise on and to advocate for people," he says. "We had a responsibility to hold the government to account." Kormos notes he approached learning the ropes at the legisla- ture in the same way he did as a young lawyer going to court. "I sat and listened," he says. "Did I steal stuff ? You bet your boots I did." Unfortunately, the new crop of MPPs who arrive after Oct. 6 won't have the luxury of learning from a master. Incidentally, it's his birthday on Oct. 7, and I'm sure he's wishing for an NDP surge as we saw with the federal election. He's not sure exactly what's ahead or at least he's not saying. He might even return to practising law. In the meantime, there's one thing that's certain: we haven't seen or heard the last of Kormos. Ian Harvey has been a journalist for 34 years writing about a diverse range of issues including legal and political affairs. His e-mail address is ianharvey@rogers.com. BY SIMON SCHNEIDERMAN For Law Times sure them against Ontario law, as in the recent case of Yar v. Yar. In 1993, as part of a Muslim marriage cer- D emony held in Germany, a couple signed a document called a maher or mahr. Th ey had previously had a civil marriage in 1991. Th e mahr document said the husband was to pay the following: 100 German marks and 500 grams of gold and 1 million German marks ($741,643), deferred. By 2010, the couple was living in Ontario, separated, and in a matrimonial dispute. At trial in the Superior Court in Hamilton, Ont., the wife, relying upon the mahr, tried to collect the $741,643. As a result, Justice W.J. Festeryga had to decide whether the mahr was an enforce- able marriage contract and whether the amount to be paid was the one stipulated in the agree- ment or something else. Ultimately the claim iff erent cultures and religions pro- duce their own domestic contracts. Occasionally, the courts have to mea- Liyakat Takim, noted that in many Muslim so- cieties, the mahr is often fi xed at an exorbitant amount as a status symbol to elevate the social standing of the families concerned. As a result, it wasn't actually intended to be paid. Th is, he argued, was the case with the 1 million German marks. In turn, if the mahr is fi xed at such an exor- bitant rate that the groom can't aff ord to pay it at the time of the marriage, he's only required to pay what is called al-mahr al-mithl, an amount considered normal by local custom. Th e al- mahr al-mithl is calculated based on the bride's social standing at the time of marriage. In cases where the wife demands a divorce, Islamic law states that the husband has the op- tion to state conditions for agreeing to it. Th is may include the clause that the wife foregoes any mahr that's outstanding. To this latter point, Emon added the follow- ing distinctions: Speaker's Corner was denied for reasons of religion rather than strict contract principles. It was clear by 2010 that if a dispute has a religious aspect, that fact alone doesn't make it non-justiciable. Further, there was no public policy reason not to honour a mahr agreement. One court in Ontario, however, declined to enforce the terms of a mahr as it would lead the court into a religious thicket. Nonetheless, the Supreme Court of Canada, in Bruker v. Marcovitz, said that "if a spouse can show that the religious marriage contract meets all the requirements for a civil contract under provin- cial legislation, then the courts may order the fulfi lment of undertakings to pay the amounts provided for in the contract." During the Yar case, two experts on Muslim law testifi ed on the cultural and historic role of the mahr in or- der to assist the trial judge in deciding if this was an enforceable agreement. Th e wife's ex- pert, professor Anver Emon, posited that the mahr was simply a contract rather than a reli- gious document and should be treated as such. Amongst other principles, he explained that in the Islamic legal doctrine, the husband pledges to pay the wife a mahr, a term which invokes a series of legal rules: — Th e amount of the mahr is negotiated at the time of marriage. Th e ultimate fi gure is of- ten a refl ection of the parties' class, social status, cultural attitudes, and other considerations. Th e mahr is considered the wife's separate property. — Payment of the mahr to the wife is le- gally due upon fi nalizing the contract. Islamic jurists, however, have historically understood that the larger the mahr amount, the less ca- pacity the husband may have to pay it at the time of marriage. As a result, they held that the parties can elect to have only a portion of the stipulated mahr paid upon fi nalizing the con- tract. Th e remainder can be deferred. In this case, the deferred amount was the 1 million German marks. — Although deferred, the entitlement to the later payment retains its quality as the wife's ex- clusive property throughout the marriage. — Th e deferred amount becomes payable upon the husband's death or the dissolution of marriage. Mere separation isn't suffi cient to trigger the husband's liability to pay the de- ferred amount. Th at occurs only on divorce. — In its historical context, the mahr was de- signed to give the wife some fi nancial stability without subjecting her to fi nancial responsibili- ties for the household. By contrast, the husband's expert, professor www.lawtimesnews.com — If the wife petitions for divorce, she can seek a for-cause divorce or a no- cause divorce. If she seeks a divorce for cause, such as physical abuse, she'd pre- serve her fi nancial claims against her husband, including her deferred mahr. If the woman sought a no-cause divorce, she'd have to forego her fi nancial claims upon her husband and would lose her right to the mahr. — Although the husband has a right to unilaterally pronounce a divorce, most Mus- lim states have said that no such declarations are legally eff ective. Instead, the parties must come to court to petition for a divorce. — In the event the husband invokes his right of divorce before a court, he's liable for any and all fi nancial obligations to his wife, including any deferred mahr payment. Th ere- fore, the husband could and often would re- frain from fi ling for divorce and wait for the wife to seek a no-cause proceeding. A serious factual dispute at trial in Yar was whether the parties had cohabited between the date of their civil marriage and their Islamic mar- riage ceremony. Equally disputed was the ques- tion of whether the husband was an atheist or a Muslim when he got married. Takim said that if they cohabited after the civil proceedings but be- fore the Islamic ceremony, the Islamic marriage was void. If the husband was an atheist, he said, the contract was void because an Islamic woman isn't permitted to marry a non-Muslim. Th e latter position, Emon argued, worked to the detriment of Muslim women. But the judge accepted the husband's evidence and held that the Islamic marriage was void due to cohabitation and the contract was void because the woman had married a non-Muslim. In other words, the court treated the agreement as one that failed to meet the requirements of a religious marriage contract rather than a civil one and thereby reversed the prescription of the Supreme Court of Canada. For good measure, Festeryga held that the mahr amount was exorbitant and unreasonable. If the husband was required to pay any sum, he had met that obligation by paying for the wedding expenses and gifting the bride a $30,000 mink coat. Th e judgment was appealed but not the portion dealing with the mahr. A case like this is a striking illustration of how lawyers have to be alert to multiple layers of cultural nuance and the need for experts who will guide them through it. It involves the types of questions they'll increasingly face in matters that include such religious elements. Simon Schneiderman is a lawyer with Simon Schneiderman Professional Corp. His practice is focused on family and commercial litigation. He can be reached at 416-361-0680 or clophie@aol. com. He acted for the wife in Yar.