Case law: Maher

Bakhshi v. Hosseinzadeh 2017 ONCA 838: The parties in this case were married in Iran in 1995, at which time they entered into a Maher, which is an Islamic marriage contract. They emigrated to Canada and then separated in 2013. The wife initiated an application for divorce, custody, child support, equalization of property, and other relief.

The Maher provided the wife with the right to receive 230 gold coins (“the Maher payment”) upon her request (valued at $79,580). The trial judge deemed the value of the 230 gold coins to be “excluded property” pursuant to s. 4(2) of the Family Law Act which states that “property that the spouses have agreed by a domestic contract is not to be included in the spouse’s net family property”.

Having excluded the Maher payment from the calculation of the net family property (NFP) and equalization payment, the trial judge treated it as an additional amount owing to the wife and added it to the equalization payment.

The husband appealed this decision on the basis that the Maher contained no specific agreement that the payment be excluded from the wife’s NFP. He took the position there was no basis for inferring the parties had intended to exclude it.

Justice Juriansz of the Ontario Court of Appeal held that, without any evidence of an intention to treat the Maher differently, the payment agreement between the spouses must be treated under the FLA like any other payment obligation between them. Therefore, the Maher payment should be included in the NFP, and the equalization order was varied as a result.

The appeal was allowed and the Court awarded a payment by the husband to the wife of $116,100, which consisted of an equalization payment of $36,520 and $79,580 to satisfy the Maher obligation.

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