Culture's Role in Family Law: A Word from the Ontario Court of Appeal
by Paula Lester on January 14, 2016
What role do cultural norms and expectations play when determining property rights upon separation? This issue was recently discussed by the Ontario Court of Appeal in the case of Abdollahpour v Banifatemi.
In that case, the husband and wife were Iranian. Upon marriage, the husband’s parents gave their daughter-in-law a “mahr” or “dowry” that consisted, in part, of a 50 percent interest in a property owned by the parents-in-law. When the couple separated, the husband and his parents sought the return of the wife’s share in the property.
The husband and his parents argued that, according to Iranian culture, the mahr was subject to a condition that the wife not leave the marriage. On that basis, the wife’s 50 percent share in the property should revert back to the parents-in-law now that the marriage had ended.
The wife successfully brought a motion for summary judgment to dismiss the claim by the husband and parents-in-law. On appeal, the Ontario Court of Appeal upheld the dismissal for the following reasons.
Husband and parents-in-law’s arguments
The husband and his parents argued that the property transfer to the wife was not a true, irrevocable gift. Rather, in the Iranian culture, a mahr is to be returned under certain conditions where a wife leaves the marriage. Because of this cultural norm, all of the parties, including the wife, would have intended and agreed that the transfer of the property was conditional on the wife remaining in the marriage.
The husband and his parents also tried to argue that the wife’s father, in negotiating the mahr, represented to the husband’s father that the 50 percent interest in the property would be returned to the parents-in-law if the wife left the marriage.
The husband and his parents also argued that they had transferred the property under undue influence, but this argument was easily rejected by the Court of Appeal.
Court of Appeal’s ruling
The Court agreed with the summary motion judge that the transfer of the 50 percent interest in the property was a true irrevocable and unconditional “gift”.
While the husband and his parents tried to use the Iranian culture as a basis for arguing that the transfer was not unconditional or irrevocable, the Court rejected this argument and looked, instead, to the particular facts of this case. The facts showed that, during the pre-marriage negotiations concerning the contents of the mahr, the wife’s lawyers insisted that the transfer of the property interest be irrevocable.
The Court also rejected the argument that the representations of the wife’s father somehow bound the wife or formed part of the conditions of the transfer of property. This argument seemed to rest on a cultural norm where parents may make bargains that bind their soon-to-be married children. However, under Canadian law, the wife, who did not even know about these representations, could not be bound by them. In any event, legislative requirements under the Statute of Frauds do not permit parties to rely on verbal representations when transferring real property.
On the issue of culture
The Court of Appeal then took the time to make some very important comments on the interaction between cultural norms and the law. It noted that, in Canada, we have many different cultures and subcultures. If a cultural norm is going to be imported into a legal transaction, this has to be explicitly stated and the norm has to be defined in the parties’ agreement. Parties cannot simply import a cultural norm by making a reference to a term such as a “mahr”, because the meaning of that term varies depending on the culture and subculture.
The court noted:
“If ambiguous references were enough to incorporate cultural practices and traditions into a real property transaction … there would be a danger of underlying expectations and motivations arising from the cultural context easily becoming conflated with intention.”
What the Court of Appeal does not say, but is implicit in its ruling, is that culture cannot override a person’s free will, nor can it dictate a person’s right to deal with property as they wish. Therefore, judges are directed to make rulings on the basis of the particular circumstances before them, and not on the basis of real or perceived norms about a person’s background culture.