A case involving a dowry dispute after a divorce serves as a lesson to the legal community to document the intent of premarital loans and gifts in writing, says Pickering family and immigration lawyer Angela Princewill.
In Abdollahpour v. Banifatemi, 2015 ONCA 834 (CanLII), a judge found a wife was entitled to keep her 50 per cent interest in an Ottawa home that was given to her as a dowry, even after their divorce.
The husband and his family argued the dowry, according to Iranian culture and tradition, was subject to a condition that the wife not leave the marriage and that, if she did, the property would be transferred back to the donors.
But in an appeal, the judge ruled that although a wide variety of cultural norms and traditions are part of the Canadian mosaic, the traditional meaning of an Iranian dowry is not enough. It must be documented in the “Deed of Gift.”
“If families of the bride and groom in circumstances such as these wish to incorporate such a concept into the transfer of property to the bride as part of her dowry, it is easy enough for them to say with clarity in the Deed of Gift expressly what it is that they intend with respect to the terms of the transfer,” the appeal court judges wrote in their joint decision. “The parties did not do so in this case.”
Princewill, who was not involved in this case but has handled other dowry disputes for clients, says the parties likely thought they were making the agreement against the backdrop of their culture, however, the method of documenting these gifts used the words “irrevocable gift.”
In addition to the wording in the couple’s Deed of Gift, a subsequent email from the husband’s family lawyer described the stake as “a wedding gift to both kids.” The couple separated after less than two years of marriage.
Princewill says that in law, when you’ve made an “irrevocable gift,” it doesn’t matter what your expectations are, or its cultural roots.
“You’ve made a full gift, it’s complete, that’s it,” Princewill tells AdvocateDaily.com. “If they wanted to make it conditional or they wanted to incorporate their culture into this, then it should have been written down.”
In that way, the verdict was not a surprise, she says. But she adds the decision indicates an acceptance of cultural practice in family law.
“The court does recognize that there is a place in Canadian law to incorporate other people’s norms and culture, such as dowries.
“The judges were very clear that these things can happen, and we can incorporate other cultural norms into Canadian law, however these expectations, cultures and norms have to be articulated.”