Law Times

Law Times • November 13, 2017 Page 5 www.lawtimesnews.com NEWS Visit gpllm.law.utoronto.ca Questions? gpllm@utoronto.ca Apply today. ONE YEAR | PART-TIME | FOR LAWYERS AND BUSINESS LEADERS Master the Law. Canada's leading law school offers a graduate degree in four unique streams: Business Law Canadian Law in a Global Context Innovation, Law and Technology Law of Leadership Untitled-6 1 2017-07-27 2:46 PM the net family property, and the Court of Appeal agreed. The decision reinforced the principles of an earlier Court of Appeal ruling from 2011 in Khamis v. Noormohamed, but it resulted in a different finding because of the different facts of the Bakhshi case. In Khamis, the Court of Ap- peal affirmed a lower court de- cision that found a Maher pay- ment should be excluded from net family property because of specific wording in the contract that said it should be excluded. The Maher in Bakhshi, how- ever, did not have an equivalent provision. Patrick Di Monte, who rep- resented the husband on appeal, says the wording of these agree- ments is crucial. "In future, if Muslim men manage to keep the Maher si- lent, it will be included in the calculation of net family prop- erty," says Di Monte. "If the wife is astute enough — whether the Maher is made in the Middle East or here — to put that exclusion in, the Family Law Act says you can exclude an item of property from that fam- ily property if the parties agreed to that clearly at the time the Maher was made." He adds that the ruling goes further than the Khamis deci- sion as it says that, if the Maher is silent on this front, it will be included in net family property. The Court of Appeal allowed the exclusion in Khamis pursu- ant to s. 4(2)6 of the Family Law Act, which allows spouses to exclude property from net fam- ily property if they have agreed not to include it in a domestic contract. In Bakhshi, the Court of Appeal found the trial judge failed to review the Maher in determining whether they had made such an agreement. The Court of Appeal found the Maher payment should be included in net family property. This reduced the equalization payment to $36,520. The Court of Appeal found the wife was also owed the $44,449 in post- separation adjustments and the realization of the Maher pay- ment, for a total of more than $160,549. The husband would have paid $231,524 if the trial judge's decision was upheld. Heather Hansen, a certified family law specialist, who was not involved in the case, says the decision is not inconsistent with the reasoning of the Khamis decision even though the results were ultimately different. "Whether the contract is a re- ligious marriage contract or oth- erwise, there is no significance on the analysis that the trial judge or the Court of Appeal did in this case," says Hansen, a partner at Martha McCarthy & Company LLP. Natasha Bakht, a law profes- sor at the University of Ottawa, says the decision and others like it help to demystify Maher agreements. "The main thing is . . . it's real- ly saying that these are religious agreements but that they have fair financial basis [and] they're written agreements so there is no reason why they can't be en- forceable," she says. Frances Wood, the lawyer representing the wife in the case, did not respond to a request for comment. LT Maher excluded from net family property questioning why the issue would be reopened, particularly con- sidering a discussion already happened on the issue at the Dec. 2016 meeting when the rec- ommendations were approved. In the letter, the association acknowledged that the state- ment of principles will not be popular among all lawyers but that it is essential. Groia's motion will ask benchers to consider an exemption for conscientious ob- jectors of the requirement. Bencher Anne Vespry, who is seconding Groia's motion, says the motion will give benchers the opportunity to reconsider the statement of principles with- out threatening any of the other recommendations. Benchers had to vote on all 13 recommendations as an all- or-nothing package. Vespry was among the benchers who was critical of the statement of prin- ciples, and she voted to consider the requirement separately. "When you pair really im- portant and useful proposals or recommendations with others that might not stand as much scrutiny, and you say oppose this piece and we will lose everything — that can be very persuasive," says Vespry, who is a racialized lawyer. While benchers are set to de- bate the issue again, Lakehead University law professor Ryan Alford has turned to the courts to try to put an end to the state- ment of principles. He has asked the Ontario Superior Court for an interim injunction to stop the law society from enforcing the requirement, and he has request- ed a declaration that it is both unconstitutional and outside the law society's statutory authority. "When you ask people to swear that they have any partic- ular value — even if that view is one that we would all agree is un- problematic — you're coercing people to reveal what is inner- most," says Alford. He has asked the court to declare that the re- quirement is contrary to the rule of law and unsupported by the regulator's Rules of Professional Conduct. The professor's appli- cation argues the requirement is disproportionate, inoperable and unconstitutional. "A lot of people in the legal profession find the fact that the law society would be doing that particularly problematic, given that the law society is representa- tive of a profession that is meant to be guardians of the constitu- tion [and] defenders of the rule of law," he says. LT LSUC to consider exemption to requirement Continued from page 1 Continued from page 1

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