Bakhshi v. Hosseinzadeh*
2017 ONCA 838
Court of Appeal for Ontario, Laskin, K.N. Feldman and Juriansz JJ.A.
November 2, 2017
Family law — Domestic contracts — Marriage contract — Parties
entering into maher in Iran which required husband to pay wife
230 gold coins upon her request — Trial judge’s finding that maher was
valid domestic contract which created demand obligation that was
enforceable under Family Law Act being supported by evidence —
Maher containing no express agreement that maher payment was to be
excluded from wife’s net family property — Trial judge erring in applying s. 4(2)6 of Family Law Act and concluding that Maher payment
was excluded from net family property — Family Law Act, R.S.O. 1990,
c. F.3, s. 4(2)6.
The parties were married in Iran and entered into an Islamic marriage contract, or maher, which required the husband to pay the wife 230 gold coins upon
her prompt request. The parties subsequently emigrated to Canada. The wife
brought an application claiming a divorce, custody, child support, equalization
of net family property (“NFP”) and other relief. The trial judge found that the
maher was a valid and binding marriage contract under s. 55 of the Family Law
Act (“FLA”). Relying on s. 4(2)6 of the FLA, he concluded that the value of the
maher was to be excluded from the calculation of NFP. He treated the maher
payment as an additional amount owing to the wife and added it to the equalization payment. The husband appealed.
Held, the appeal should be allowed.
The trial judge’s interpretation of the maher as creating a demand obligation
that was enforceable under the FLA, his finding that the maher was a valid
domestic contract under s. 55 of the FLA, and his decision not to exercise his discretion under s. 56(4) of the FLA to set aside that contract were supported by the
evidence. However, the trial judge erred in applying s. 4(2)6 of the FLA and concluding that the maher payment was excluded from NFP. He failed to review the
maher to determine whether the parties actually agreed to exclude the maher
payment from the wife’s NFP. The maher contained no such express agreement.
The maher payment should be included in NFP and the equalization order
should be varied as a result.
Bari v. Nassr,  O.J. No. 3834, 2015 ONSC 4318 (S.C.J.); Boustanji v.
Barazi,  O.J. No. 3669, 2017 ONSC 4261 (S.C.J.); Ghaznavi v. Kashif-Ul-Haque,  O.J. No. 3023, 2011 ONSC 4062, 5 R.F.L. (7th) 241, 204 A.C.W.S.
(3d) 331 (S.C.J.); Khanis v. Noormohamed,  O.J. No. 667, 2011 ONCA 127,
91 R.F.L. (6th) 1, 198 A.C.W.S. (3d) 741, affg  O.J. No. 2245, 177 A.C.W.S.
(3d) 446, 2009 CanLII 27829 (S.C.J.); Marcovitz v. Bruker,  3 S.C.R. 607,
 S.C.J. No. 54, 2007 SCC 54, J.E. 2008-68, 52 C.C.L.T. (3d) 1, 46 R.F.L.
(6th) 1, 370 N.R. 1, 162 A.C.W.S. (3d) 940, 288 D.L.R. (4th) 257, EYB 2007-
127332, 166 C.R.R. (2d) 36; Mohammadi v. Safari,  O.J. No. 4201, 2017
ONSC 4696 (S.C.J.); Yar v. Yar,  O.J. No. 547, 2015 ONSC 151 (S.C.J.),
* Vous trouverez la traduction française à la p. 544, post.