Court File and Parties
NEWMARKET COURT FILE NO.: FC-13-044517-00
DATE: 20151207
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Faranak Bakhshi, Applicant
AND:
Masoud Hosseinzadeh, Respondent
BEFORE: J.S. McLeod, J.
COUNSEL: Naser Abedi, Counsel, for the Applicant
Respondent is Self-Represented
HEARD: November 20, 2015
REASONS FOR JUDGMENT
[1] This matter comes before the court as an uncontested trial with respect to three issues:
equalization;
post-separation adjustments; and
whether a contract for Maher is enforceable.
A divorce order was issued on September 23rd, 2014 by Nicholson, J.
[2] All other substantive matters, save and except the issues identified above, were resolved by final order of McGee, J., dated February 18th, 2015.
[3] Justice McGee also prepared the trial scheduling endorsement form (TSEF) wherein the three remaining issues were identified. The respondent was and has remained in default; in addition he has failed to comply with specific provisions of the February 18th, 2015 order which could have permitted him to request limited participation in the default hearing.
[4] The February 18th, 2015 order left the "extent" to which the respondent could participate in the default hearing, up to the conference judge. As indicated Justice McGee was also the conference judge. The TSEF dated October 30th, 2015 makes no provision for the respondent's participation. I made a preliminary order in this matter earlier, precluding the respondent's participation in light of the above.
Equalization
[5] The applicant, through her counsel, filed two exhibit books containing the materials which the applicant relied upon to substantiate the numbers set out in her net family property Statement (NFP). The NFP is found at Tab 3 of the continuing record. The applicant also testified in this matter. I found her evidence sincere and creditable.
[6] With the exception of the following items I find that the applicant has substantiated the values in the NFP. The exceptions are:
value of the respondent's 2004 Nissan ($4000.00);
value of the two farm fields in Iran, which are in the respondent's name ($135,000.00); and
the value of the respondent's TD Chequing Account ($800.00).
The applicant testified in support of the value of the farm fields. She stated that the fields were purchased after the respondent depleted the party's joint bank account and prior to separation. I accept her evidence that $108,000.00 was diverted to acquire these lands. Accordingly, the NFP will be amended by deleting the $4,000.00 for the Nissan and $800.00 for the bank account of the respondent. The farm field's value of $135,000.00 shall be reduced to $108,000.00.
Post-Separation Adjustments
[7] I accept the testimony and documentary evidence of the applicant on the issue of post-separation adjustments. She is entitled to the following:
$34,251.68 being the respondents share of post-separation mortgage payments which he did not make;
$4,200.00 being the respondents share of utilities and insurance premiums as they relate to the matrimonial home; and
$5,998.25 being the additional flight costs incurred by the applicant (post-separation) when the respondent affectively blocked the applicant and the children's return to Canada from Iran.
Marriage Contract and the Maher
[8] In determining whether or not the applicant is entitled to the payment of the Maher I am guided by the decision of Backhouse, J. in Khanis v. Noor Mohamed, 2009 27829 (ON SC)[^1]. Much as in the Khanis decision the marriage contract in this case was in writing and signed by both parties. The party's signatures were both witnesses. There is a certificate of the officiant at the marriage. I received evidence that the parties signed the marriage contract on their own free will. There was no duress. The contract is found at Tab A of Exhibit 1.
[9] The applicant testified that the amount of the Maher was negotiated between the parties. The contract required the respondent to pay 230 gold coins of 22 carats each along with other items upon the applicants "prompt request". The applicant presented evidence which demonstrated that the value of the coins in totality was $79,580.00 Canadian.
[10] The contract does not specify that the Maher is in substitution of the husband's obligations arising out of marriage.
[11] Neither party obtained independent legal advice. No financial statements were exchanged and neither party provided financial disclosure. The applicant retained a copy of the marriage contract following the ceremony.
[12] One of the issues to be determined was whether or not the marriage contract entered into by the parties is valid and binding under the Family Law Act.
[13] I adopt the reasoning of Justice Backhouse in the Khanis case[^2].
[67] Courts across Canada have differed on whether traditional marriage contracts under Muslim law are enforceable. British Columbia courts have found that contracts for maher are enforceable. (Nathoo v. Nathoo, [1996] B.C.J. No. 2720 (BCSC); Amlani v. Hirani, 2000 BCSC 1653, [2000] B.C.J. No. 2357; N.M.M. v. N.S.M., 2004 BCSC 346, [2004] B.C.J. No. 642.) However, in Ontario, in Kaddoura v. Hammoud,[1998] O.J. No. 5054, Rutherford J. (at paras. 25-26) held that the Court should not determine the rights and obligations of the parties under the maher, as it would lead the Court into the "religious thicket". Since Kaddooura was decided, the Supreme Court of Canada in Bruker v. Marcovitz, 2007 SCC 54, [2007] S.C.J. No. 54, has held that the fact that a dispute has a religious aspect does not make it non-justiciable. Persons can transfer their moral obligations into legally binding ones.
[68] Accordingly, it must be determined whether the marriage contract entered into by the parties is valid and binding under the Family Law Act. The Family Law Act permits parties to enter into a marriage contract in which they can agree upon their respective rights and obligations upon separation with respect to the ownership and division of property and their support obligations and other matters in the settlement of their affairs. There are certain limitations such as a prohibition against interfering with a possessory right of the matrimonial home and determining custody and child support rights. Under s.55 (1), a domestic contract is unenforceable unless made in writing, signed by the parties and witnessed. In addition, there are judicial oversight provisions contained in s. 56 (4) which states:
"s.56 (4) A court may, on application, set aside a domestic contract or a provision in it,
(a) if a party failed to disclose to the other significant assets, or significant debts or other liabilities, existing when the domestic contract was made;
(b) if a party did not understand the nature or consequences of the domestic contract; or
(c) otherwise in accordance with the law of contract."
[14] Setting aside a marriage contract under Section 56.4 of the Family Law Act is discretionary. The terms of the marriage contract herein were simple. The evidence satisfies me that the husband understood the promise he made and understood that it was binding upon him. In these circumstances the court should not exercise its discretion and set aside the contract.
[15] The value of the Maher in these circumstances is also to be considered excluded from net family property. Section 4(2)6 of the Family Law Act, provides:
- Property that the spouses have agreed by a domestic contract is not to be included in the spouse's net family property.
[16] In light of the foregoing I find as follows:
The respondent owes to the applicant an equalization payment of $187,075.00 (inclusive of the Maher); plus
$44,449.93 in post-separation adjustments.
Order Directing the Respondent to Apply for an Islamic Iranian Divorce
[17] In the opening statement made and filed by the applicant, as Exhibit 4, the applicant requested an order that the respondent "shall apply for an Islamic Iranian divorce" which would mandate that the respondent take certain specific steps.
[18] The steps required the respondent to:
attend at an approved agency for Islamic divorce;
execute all documents required for an Islamic divorce; and
provide the Iranian Embassy or the Interests Section of Iran with his personal documents to register the divorce with the Iranian government.
[19] The applicant requests that the respondent be ordered to take such steps within 30 days of my decision.
[20] At the conclusion of the default hearing I directed the applicant's counsel to provide the authorities he relied upon in support of his submission that this court has jurisdiction to make the order of direction.
[21] Written submissions on this point were made to the court on the 26th November 2015. Two cases were provided along with a copy of a temporary order of Madam Justice Stevenson dated July 25th, 2014 issued out of the Superior Court of Justice, Toronto (File No. FS-12-382379).
[22] The order of Stevenson, J. was based on a "consent." It ordered the relief which the applicant herein also seeks.
[23] The decision of Backhouse, J. in Etemad v. Hasanzadeh, 2014 ONSC 6737 is authority that supports the proposition that this court has the jurisdiction to make an order which the applicant seeks. In the Etemad case, the court heard evidence as to whether or not Mr. Hasanzadeh needed to give consent to a religious divorce.
Para. 49 The question of whether or not Mr. Hasanzadeh was required to or needed to give consent to a religious divorce was raised early in the proceedings. He took the position that there was no such thing as a religious divorce and that either party could obtain a divorce in Iran.
Para. 50 The expert evidence satisfied me that an Islamic divorce is obtainable in Ontario and that the parties would still be considered married in Iran without a religious divorce. The effect of this, according to the evidence, is that the wife was effectively prevented from going to Iran. Moreover, without the husband's consent, it would be very difficult or impossible for her to obtain a divorce in Iran. Conversely, the husband could facilitate an Islamic divorce in Ontario very simply, by signing his consent.
Para. 51 I concluded that this issue was properly before me and that there was no prejudice to the husband. Accordingly, I granted an amendment to the wife's application to claim that the husband's answer be struck for failing to remove all barriers that are within his control and that would prevent the other spouse's remarriage within her faith pursuant to section 2(6) of the Family Law Act.
Para. 52 I gave the husband 30 days to take the necessary steps to unconditionally obtain a religious divorce in Ontario. I ordered that if he had not done so within 30 days, then I would fix a date for this matter to be returned before me to ensure that he had every opportunity to make further submissions and lead any additional evidence on this point.[^3]
[24] In the case at bar a specific claim for this relief was not sought. The claims by the applicant include a claim for divorce and other relief. The order for "direction", was however requested in the applicants opening statement.
[25] This matter proceeded by "23C" and a subsequent default hearing. Although no amendment to the application was sought at the outset of the hearing, counsel specifically pointed out this request in his opening statement which was given orally and of which a copy was presented to the respondent. Mr. Hosseinzadeh was present and seated at counsel table throughout the entire default proceeding. He was not entitled to participate as a result of his previous noting of default and failure to comply with several court orders.
[26] I am of the view that this court has jurisdiction to grant the relief sought herein. I am prepared to do so for the following reasons. Firstly, I find that the respondent was effectively on notice of this claim. The applicant sought a divorce which she obtained on the 23rd of September 2014. The applicant could not, however, obtain the Islamic divorce unless the respondent takes specific steps to obtain it. Without the religious divorce the parties would still be considered married in Iran. Secondly, the process and reasons with respect to the Islamic divorce were set out in the opening statements of the applicant. Little turns on the inability of the respondent to participate in the hearing on this issue. His history, in fact, shows a consistent failure to comply with court orders and failures to participate.
[27] The respondent knew the applicant sought a divorce order. Inherent to this would be the religious divorce. Without it the applicant would still be considered married, and according to Islamic law she could be subjected to severe punishment should she decide to return to Iran. (It is to be noted that the applicant's family continued to reside in Iran and there is a strong likelihood that she will return at least to visit family).
[28] I would, accordingly, use the courts inherent jurisdiction to permit the application to be amended nunc pro tunc for the specific relief sought herein. To do otherwise would render this judicial proceeding inefficacious. Accordingly, order to go that the respondent shall apply for an Islamic Iranian divorce by attending an approved agency for an Islamic divorce and execute all divorce documents required for an Islamic divorce. The respondent shall provide the Iranian Embassy or the Interests Section of Iran with his personal documents to register the divorce with the Iranian government within 30 days from the date of this order.
Costs
[29] The applicants counsel was invited to submit written reasons in support of the request for costs. A rather basic bill of costs was submitted. It may more accurately be described as an invoice. In addition, a list of other legal costs billed to the applicant by other lawyers was submitted. The total costs from all accounts amounts to $12,753.60. No offers to settle were filed.
[30] I note that the default hearing was necessary because the applicant's affidavit in support of the initial "23C" was observed by Justice McGee to be lacking evidence upon which the court could consider some of the relief she was requesting. The hearing was necessary to "clean up" the evidence on the three issues which were identified at the outset of these reasons. Accordingly, costs inclusive of disbursements are ordered on a partial indemnity basis fixed in the sum of $8,500.00 plus H.S.T.
[31] I also order that the amounts herein specified are, to the extent possible, to be paid out from those funds currently held by the accountant of the Superior Court pursuant to the order of McGee, J. dated June 25th, 2015.
J.S. McLeod, J.
Date: 7 December 2015
[^1]: Khanis v. Noor Mohamed, 2009 27829 (ON SC)
[^2]: Supra, n.1
[^3]: Etamed v. Hasanzadeh, 2014 ONSC 6737 (para. 49,50,51,52)