Cultural expectations no match for explicit contracts, Appeal Court says

TORONTO – Reliance on cultural expectations or norms is no substitute for explicit contract language when giving a gift or transferring property, Ontario’s top court ruled on Wednesday.

The decision comes in the case of a young Iranian couple in Ottawa whose marriage fell apart after the bride received a dowry — also known as a mahr — from the groom’s family.

“A wide variety of cultures and their norms and traditions form an integral part of the Canadian mosaic,” the Appeal Court ruled.

“They cannot simply be imported into a transaction involving the transfer of real property by reference to a concept such as ‘dowry,’ which forms a part of a particular culture or tradition.”

Ahmad (Reza) Abdollahpour and Shakiba Sadat Banifatemi married in Ottawa in March 2012. According to Iranian custom, his family gave the bride a dowry that included a 50 per cent stake in a house they owned. They transferred the ownership by way of a deed of gift.

After they separated in December 2013, Abdollahpour and his family wanted the property back. Banifatemi refused and the Abdollahpours sued.

Essentially, the groom’s family argued the transfer was part of the dowry and that Iranian culture and tradition dictated that Banifatemi would have to return the gift if she left the marriage.

A year ago, Ontario Superior Court Justice Robert Smith sided with the former bride, prompting the former groom and family to appeal. They argued Smith was wrong to find the gift was given unconditionally.

In upholding the ruling, the Appeal Court noted the two families had negotiated the property transfer before the marriage — after receiving independent legal advice — and that the lawyer for the groom’s family described the transfer as a “wedding gift to both kids.” In addition, the deed of gift, which was formally registered, stated that the groom’s family was transferring “irrevocably” the property to the bride.

As such, the Ontario Court of Appeal concluded, everything pointed to an intention by both sides that the transfer was both irrevocable and unconditional, and that there was no indication of any expectation of a return if the marriage broke down.

It simply isn’t good enough, the Appeal Court concluded, to insist after the fact that cultural expectations formed part of an agreement unless explicitly noted, or that merely listing a gift as part of a dowry is sufficient to create an implied set of conditions related to traditional norms.

“If families of the bride and groom in circumstances such as these wish to incorporate such a concept into the transfer of property to the bride as part of her dowry, it is easy enough for them to say with clarity in the deed of gift expressly what it is that they intend with respect to the terms of the transfer,” the Appeal Court said in its ruling.

“The parties did not do so in this case.”