Maher Agreements Upheld

This case is an unsuccessful appeal from a court decision arising from a six day trial.  The appellant husband and respondent wife were married on April 27, 1996 and separated on March 27, 2006, both being 61 years of age.  As there were no children of the marriage, the major issue at trial was that of equalization and resulted with an order from the trial judge that among other things, the husband pay $84,999 to the wife.  Of this amount, approximately $65,000 was for equalization and $20,000 was pursuant to the contract of Maher the parties entered into at the time of marriage.

In his appeal, the husband submits that the trial judge erred in her treatment of assets the parties had at the date of marriage.  In particular, the trial judge provided that the Maher Agreement that the parties had entered into at the time of marriage was a valid marriage contract and therefore should be enforceable as such.  Maher is a sum of money that the man agrees to pay the woman in a Muslim marriage contract.  The notion here is to provide some financial security for the wife upon the dissolution of the marriage.

In this case, the appellant husband argued if the $20,000 Maher was enforceable, then his net family property at the date of separation should be reduced by the $20,000 for the debt owing on the valuation date.  The trial judge ruled that if treated this way, the debt existed on the date of marriage and thus fell within the ambit of net family property.  Therefore, the fact that this debt existed on the date of separation had no effect on the appellant husband’s net family property.

It was further held at appeal that the terms of the Maher agreement which included “in addition and without prejudice to and not in substitution of all my obligations provided for by the laws of the land” made it clear that the Maher amount is excluded from net family property.  The appeals judge held that to be treated any other way would undermine the explicit intention of the agreement and thereby render the contract meaningless.  In further support of the latter, it was found that the $20,000 Maher falls within the meaning of s. 4(2)6 of the Family Law Act and therefore is excluded from net family property.  Section 4(2)6 Family Law Act provides that property that the spouses have agreed by a domestic contract is not to be included in the spouse’s net family property.

Therefore, it was ultimately concluded that Maher is not to be included in the calculation of net family property.  However, even if it is included, the net effect of this inclusion makes no difference to the net family property of the party owing the Maher amount.

Andrew Feldstein

The Feldstein Family Law Group (FFLG) is one the largest family law firms that practices Family Law exclusively in Greater Toronto, with ten lawyers and counting. The boutique law firm has won the Top Choice Award for Family Law™ in Toronto for the past eleven years (2007 to 2017 inclusive).

Managing Partner Andrew Feldstein has been practicing family law for more than 20 years and frequently comments on Family Law issues through the media. The Feldstein Family Law Group offers vast written, video, and media resources on its website to those who find that they need to end their relationship.

This Post Has One Comment
  1. While we agree with the outcome of this case when it is a simple matter or in other words, when the Maher amount is a smaller sum of money, issues arise of how such contracts should be dealt with when these arrangements are for a vastly greater sum. The question essentially becomes whether upholding the Maher is unconscionable when the parties have agreed to the exchange of a substantial amount of money upon the dissolution of their marriage and should the question of enforceability of the contract be approached with greater scrutiny depending on the financial disclosure exchanged by the parties at the time of drafting the agreement. Further, in light of the fact that Maher is intended for the support of the wife upon the end of the marriage, the issue of whether the quantum of Maher should impact the determination of ongoing support must also be addressed.

    In the broadest scheme of things, like with all domestic contracts, the enforceability of the Maher agreement should be determined in view of all surrounding circumstances and due consideration must be given to the impact of such domestic contracts on any corollary issues arising from the separation.

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