Law Times

Law Times • February 22, 2016 Page 9 www.lawtimesnews.com FOCUS Marriage ends, but judge rules against dowry return YAMRI TADDESE Law Times U nder Ontario law, is a dowry paid to a bride's family returnable to the groom's family should the couple's marriage break down? In a ruling that offered guid- ance on how courts will treat dowry payments in the after- math of divorce, the Ontario Court of Appeal recently said it all depends on the terms of the dowry and whether there is writ- ten evidence of those terms. In Abdollahpour v. Banifa- temi, Reza Abdollahpour and his parents, Sima and Hamid, sued Hamid's ex-wife Shakiba Bani- fatemi for the return of a dowry payment paid to her. Abdollah- pour and his parents argued that the dowry, which was paid in the form of 50 per cent interest in an Ottawa home, was subject to a condition that Banifatemi stays in the marriage in accordance with Iranian culture and tradition. The Abdollahpours also said Banifate- mi only married Abdollahpour to obtain the interest in the property and to be sponsored as a perma- nent resident in Canada. But in a decision consistent with a lower court's finding, the court of appeal said there is no evidence Abdollahpour and his parents placed terms on the dow- ry. Neither the terms of the trans- fer, nor the marriage contract, indicate the dowry is revocable, the court found. "That the property is referred to as part of the bride's dowry and the dowry is part of the marriage contract, and that there may be general Iranian cultural norms and traditions relating to such marriages, is not enough, in my opinion," Justice Robert Blair wrote. Blair added: "If ambiguous ref- erences were enough to incorpo- rate cultural practices and tradi- tions into a real property transac- tion, as the appellants seek to do here, there would be a danger of underlying expectations and mo- tivations arising from the cultural context easily becoming conf lat- ed with intention. It is the parties' intention and their actual agree- ment that must be ascertained." But Evan Moore, counsel to the plaintiffs, says a dowry isn't a gift in the traditional sense and he brought expert opinion to speak to that point. "The court's findings are pretty clear that while cultural traditions and norms may inform parties' decisions and may even form parts of terms of contracts between par- ties, when it comes to interest in land, those cultural norms and traditions still have to be reduced to writing," Moore says. Abdollahpour's parents in this case had signed a Deed of Gift that clearly stated the transfer was a gift. That's why Laura Cardiff, associate lawyer at Whaley Estate Litigation, says the plaintiffs had the evidence stacked against them. "There was a written nego- tiation of this land transfer and it was specifically to be an uncon- ditional gift. But if that didn't ex- ist, then the evidence, which the groom's family tried to introduce before the court of appeal, which was the expert report on Iranian custom, might have played a role," Cardiff says. Cardiff also says the case is an example of what happens when people have certain expectations when they give gifts but those ex- pectations are not voiced, written down, or understood by every- one involved. The court's finding in this case is a reminder that "once you have the intention to gift and you make a transfer, the gift is done, and it's unfortunate if you only realize later you only intended to give this gift in [certain] circum- stances," Cardiff adds. In Abdollahpour, the plain- tiffs argued that Banifatemi's father had promised the dowry would be returned should the marriage break down. The lower court judge had found it was "un- likely" Banifatemi's father made that promise. Even if he had, the judge said he would give no weight to that promise. The lower court judge "con- cluded that even if the statement had been made, it did not affect the result for two reasons. First, Shaki- ba's father was not a party to the transaction (or to the proceedings) and such a representation could not bind Shakiba, who is an adult in control of her own decisions and who, on the evidence, had not been told of the representation, much less agreed to be bound by it," Blair said. "I agree." The motion judge also said a verbal promise to transfer Bani- fatemi's interest in the land back to Abdollahpour's parents would be ineffective in any event be- cause of the provisions under the Statute of Frauds. Moore says Banifatemi herself had written an affidavit in which she indicated she had no part in the negotiation of the dowry, and that her father and brother had negotiated on her behalf. "That, we said, is normal in these type of dowry situations, and her father's representations supports what the expert was saying about the conditions that were attached to the dowry," Moore says. "But at the end of the day, the court said, 'You signed a Deed of Gift clearly saying the transfer was a gift to the daugh- ter-in-law notwithstanding the marriage contract.'" LT Laura Cardiff says the plaintiffs in a legal battle over a dowry gift had the evidence stacked against them. Fe 2 Please refer to the Federation of Law Societies of Canada website www. sc.ca then click on the link to the National Family Law at the bottom of the home page for further information on registration, accommodation and tourism. All program material will be provided to registrants in digital format, and online. The material can be accessed on your mobile device during and after the program, and is available online for a period of two (2) years after the closing date of the program. Block room rates have been negotiated at the Delta St John's Hotel, which is connected to the new convention centre where all the program sessions will be held (rates apply 3 days pre and post conference). You can also contact the Delta St. John's at 1.709.739.6404 or book through the link on the website listed below. The location is located within walking distance of restaurants and shops. Federation of Law Societies of Canada 2016 National Family Law Program St. John's Newfoundland and Labrador July 11-14 2016 Location: New St. John's Conference Centre July 10 Conference Of ce opens and late afternoon reception On line conference registration is now open! Registration fees include entrance to the conference, all program materials and light refreshments. Call to the Bar prior to 2011 registration fee is $850 plus 13% HST Call to the Bar after 2011 registration is $650 plus 13% HST FederationOfLaw_LT_Feb22_16.indd 1 2016-02-18 9:25 AM

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