Transfer of interest in real property through dowry or Mahr as irrevocable and unconditional gift

Abdollahpour v. Banifatemi, 2015 ONCA 834

In this case, the Court of Appeal deals with the issue of whether a wife who received a 50% interest in property as part of her marriage dowry is entitled to keep that interest.

Background

In Iranian culture, it is customary for a bride to receive a dowry or Mahr from the groom or his family as part of the wedding and marriage.  The parties in this case married in March 2012 and separated in December 2013.  The groom and his Appellant parents transferred 50% interest in a house they owned to the Respondent wife as her dowry via Deed of Gift.

As part of the divorce proceedings, the husband sought to have the wife’s 50% interest transferred back to his family on the basis that, according to Iranian tradition, the wife’s interest in the property was conditional on her staying in the marriage.

On a motion for summary judgement, Justice Smith ruled in the Respondent’s favour.  The Appellants’ claims were dismissed as the judge found that the transfer of the 50% interest in the property to the Respondent was an irrevocable and unconditional gift.

The Appellants appealed the judgement with respect to the property interest.  They further sought to introduce two pieces of fresh evidence: the translated marriage contract that listed the 50% interest as a dowry and an Islamic scholar’s expert report stating that, in certain situations, a wife must return her dowry in the event of a breakdown of the marriage.

Analysis

Fresh Evidence

The Court declined to evaluate whether the fresh evidence proposed by the Appellants was admissible on appeal as it would not change the outcome even if admitted.

The main issue was whether the parties agreed to the transfer being subject to the conditions imposed by Iranian culture or tradition.  It is the role of the motions judge to assess the parties’ intention behind the transfer.  An expert opinion cannot give an opinion on such an issue.

Was the Deed of Gift Conditional or Unconditional?

The Court found no error in the motion judge’s finding that the transfer of interest in the property was an irrevocable, unconditional gift.

Justice Smith applied the correct test to determine whether or not there was a gift.  A gift requires:

(1)  An intention on the part of the donor to make a gift without consideration or expectation of remuneration;
(2)  An acceptance of the gift by the done; and
(3)  A sufficient act of delivery or transfer of the property to complete the transaction.

The Court rejected the Appellants’ submission that the intention behind the transfer was to provide a dowry to the Respondent, which would be subject to the condition that the property would be returned if the recipient bride divorced or left the marriage as per Iranian culture.

Justice Smith did not misapprehend the evidence or make incorrect findings of fact that affected his conclusions with respect to the Deed of Gift.  The Court found that his conclusions were supported by the motion record which showed that:

  • The parties received independent legal advice during the negotiations;
  • The intentions of the parties were clearly stated in the Deed of Gift, which clearly indicated an intention to transfer the interest irrevocably; and
  • There was no indication or mention in the written exchanges or documents regarding the transfer by the lawyers that conditions applied to the gift.

Based on the above, it was open to Justice Smith to rule that the transfer was an irrevocable and unconditional gift.

Cultural Traditions

After a brief exploration of the Iranian concept of the Mahr dowry, the court noted that cultural traditions and norms cannot be simply imported into transactions involving real property merely by making reference to the cultural concept or tradition.

If the Appellants wanted to incorporate the traditional Mahr’s conditions into the transfer of interest to the Respondent as part of her dowry, they should have clearly expressed such an intention in the Deed of Gift when setting out the terms of the transfer.  As they failed to do so in this case, the transfer was a valid and irrevocable gift.

Regardless of any cultural or tradition based motivation or expectation underlying the Appellants’ intention for the transfer, a valid gift cannot be revoked or retracted once it is made.  A valid gift is not vitiated by the donee’s failure to satisfy the donor’s expectations.

As per Berdette, the court is concerned with ascertaining the intentions at the time of the transaction, not correcting a donor’s mistake in judgement.

Thus, the appeal was dismissed.

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.

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