During the parties’ marriage, the Respondent’s Father, K, advanced $90,414.39 to his son to help fund the down payment on the matrimonial home. K advanced a further $67,000 to his son during the marriage that the Respondent claims was used to help pay the mortgage and other household expenses of the matrimonial home.
This case dealt with the division of property on martial breakdown. When couples separate there is no tangible division of the property, but there is a calculation used to determine the net asset value of each person during the marriage. A financial snapshot is taken of the value of the assets owned by each spouse on the date of marriage and on the date of separation. The wealthier spouse pays half of the difference of the higher net asset value. This calculation is used so that each spouse ends up with assets of equal value for the duration of their marriage. Hence, the calculation is known as an equalization payment.
In this case, the husband and wife were married for ten years. There were no children of the marriage and both parties were 58 years old. The legal issues included deciding which assets were eligible for a deduction and determining the true value of their marital assets (i.e.: their business, jewellery, and various real properties) as both parties had different values for the same property. This issue came down to whose testimony was most credible, and based on the husband’s inconsistent statements, the Court found the wife’s testimony regarding the values for marital property more convincing.
Within the case, the Ontario Superior Court of Justice was also faced with the issue of whether the Court is willing to enforce a traditional marriage contract under Muslim law, known as maher. Basically, this entitles the wife to a sum of money [$20,000.00 in this case] that is given to her upon marital breakdown as agreed by contract. Contracts for maher are seen as being intrinsic to Muslim law as the money given to the woman is part of the husband’s moral obligation. It is important to note that the maher is an agreement paid to the spouse in addition to and without prejudice to the husband’s obligations under the Ontario Family Law Act. Both parties did not obtain independent legal advice and neither party provided financial disclosure. At the culmination of the martial ceremony, neither spouse retained a copy of the marriage contract. However, given that setting aside a marriage contract is a discretionary power of the Court, the Court in this case found that given the nature of the terms were simple and the husband understood his obligation, the Court upheld the marriage contract.
The Supreme Court of Canada Marcovitz v. Bruker decision has held that although the dispute has a religious facet, it does not make it non-justiciable. This means that individuals can transfer their moral obligations into legally binding ones. Accordingly, the Court decided to uphold the traditional marriage contract based on the grounds that the marriage contract was binding under the Family Law Act. The Act allows parties to enter into a marriage contract in which both parties agree upon their respective rights and obligations upon separation. The marriage contract may cover ownership and division of property, spousal support obligations and various matters of settlement. However, there is a prohibition against contracting out of a possessory right of the matrimonial home, determining custody and child support obligations. In this case, the marriage contract is enforceable because it was made (1) in writing, (2) signed by both parties and (3) witnessed. There was no evidence of incapacity or duress which makes the marriage contract in this case valid.