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November 13, 2017

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BY ALEX ROBINSON Law Times T he Court of Appeal has determined that part of an Islamic marriage contract was part of net family property under the Ontario Family Law Act. The appeal in Bakhshi v. Hos- seinzadeh concerned whether property conveyed under an Is- lamic marriage contract — or Ma- her — should be excluded from net family property, which is the mon- etary value of parties' net worth that is equalized between spouses when they separate. Meysa Maleki, a lawyer with Niman Gelgoot and Associates LLP, who was not involved in the case, says the decision is signifi- cant because it elevates the status of a religious or cultural obligation to one that is capable of recogni- tion under the Family Law Act as an asset that can be included in the calculation of net family property. She says the decision also clari- fies the legal test around the issue. "Where the Court of Appeal departs from the trial judge and, I think, prior decisions is that they say there is a second step," says Maleki. "That second step requires you to take a look at the factual matrix of the case and take a look at the contract itself." The couple in the case entered into a Maher when they got mar- ried in Iran in 1995 and immigrated to Canada soon after. The Maher included a clause requiring the hus- band to pay his wife 230 gold coins, which the court valued at $79,580, when she requested them. When the wife filed for divorce in 2013, she brought an application seeking equalization of net family property along with a number of other remedies. After a one-day uncontested trial in which the husband did not respond, a judge ordered him to pay her an equalization payment of $187,075, which he said was inclusive of the Maher, and post- separation adjustments of $44,449. But the Court of Appeal found the judge had actually treated the Maher obligation as separate from the equalization calculation and only added the Maher payment af- ter the calculation was made, as he had decided it should be excluded. In his appeal, the husband ar- gued that the judge erred by ex- cluding the Maher payment from Statement of principles challenged in court BY ALEX ROBINSON Law Times A s the Law Society of Up- per Canada's statement of principles is set to face renewed scrutiny at Convocation and in the courts, organizations representing racial- ized lawyers are questioning why the issue has been reopened in the first place. The statement of principles is being implemented this year as part of an effort to battle barriers faced by racialized licensees in the legal profession. It requires lawyers and paralegals to adopt and abide by a statement of principles that acknowledges their "obligation to promote equality, diversity and in- clusion." The requirement was one of 13 recommendations approved together by Convocation in Dec. 2016 and that came out of a report that identified barriers faced by ra- cialized licensees. The report was the product of four years of research and consul- tation done by an LSUC working group, and for some organiza- tions, it was largely a compromise that did not go far enough. Those organizations now do not want to see one part of the initiative picked apart, and yet Convocation is set to consider an exemption to the re- quirement at its next meeting after Bencher Joe Groia asked it to do so. The requirement has faced some backlash from lawyers and legal scholars, who argue it im- poses beliefs on licensees and is a violation of freedom of conscience, leading to Groia's request and a court challenge filed by a Lakehead University law professor. "What's the point of having the report if we're just going to shelve it or stick our heads in the sand?" says Hafeez Amarshi, president of the South Asian Bar Association of Toronto. "We spent four years working on this report." The Canadian Association of Black Lawyers recently sent a let- ter to the law society, also support- ing the statement of principles and ONLINE LIBEL Time for laws to reflect internet age P7 FOCUS ON Insurance Law P8 PM #40762529 $5.00 • Vol. 28, No. 36 November 13, 2017 L AW TIMES C O V E R I N G O N T A R I O ' S L E G A L S C E N E • W W W . L A W T I M E S N E W S . C O M ACCESS TO INFO Bill hurts those advancing land claims P4 See Maher, page 5 OCA rules on Islamic marriage contract Hafeez Amarshi says he is surprised by opposi- tion to the statement of principles, which he sees as a benign requirement. See LSUC, page 5 Meysa Maleki says a recent Ontario Court of Appeal decision clarifies the legal test around how Mahers are applied. Photo: Robin Kuniski www.twitter.com/lawtimes Follow Contact Nicole Breakey 1-888-781-9083 ext. 117 E-mail: nicoleb@docudavit.com www.docudavit.com SCAN | CODE | LOAD ocudavit-EARLUG_LT_Apr24_17.indd 1 2017-04-20 7:54 AM 5 TH ANNUAL CONDUCTING EFFECTIVE WORKPLACE INVESTIGATIONS JOIN OUR FULLY ACCREDITED PROGRAM | EXPAND YOUR NETWORK AND OBTAIN CPD HOURS Register online: www.lexpert.ca/Work-Investigations • 416-609-5868 | 1-877-298-5868 *Discount applies to in-class only USE PROMO CODE EARLYBIRD2017 & SAVE $300* EARLY BIRD EXTENDED TO NOV. 27 Untitled-2 1 2017-11-09 2:10 PM

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