INTRODUCTION

[1] The Applicant brings this motion pursuant to Rule 16(6) of the Family Law Rules to enforce a marriage contract. The Applicant seeks an Order requiring the Respondent to pay $60,000.00 pursuant to the marriage contract in full satisfaction of the Applicant’s claims under Part 1 (Family Property) of the Family Law Act, R.S.O. 1990, c. F.3, as amended (“FLA”).

[2] For reasons described below I have found that the marriage contract is partially enforceable. I order that the Respondent pay the Applicant the sum of $15,846.00.

BACKGROUND

[3] The Applicant is 36 years old. She was born in Afghanistan, lived in Iran until 2004 and is now a Canadian citizen. Her entire family lives in Canada. The Respondent is 35 years old. He was also born in Afghanistan. The Applicant and the Respondent met online, via Skype, while the Respondent was living in Iran. Both parties are Muslim.

[4] The Applicant travelled to Iran from Canada to marry the Respondent. The parties signed a “Marriage Certificate” in a Nikah ceremony that was held at the Embassy of Afghanistan in Tehran, Iran on October 14, 2013. The Marriage Certificate is written in English and Farsi. It includes a Maher – a pre-nuptial agreement specifying what things the groom will give to his bride.

[5] The Marriage Certificate states, in English, that:

The terms agreed upon by the spouses

The marriage contract between Mr. Abbas Safari and Ms. Masoumeh Mohammadi is permanent.

Prompt marriage portion _______________.

Deferred marriage portion: a piece of land / 150 square metres in Canada; 14 gold coins and travel to Makka.

The Embassy of Afghanistan in Tehran verifies the authenticity of the marriage contract concluded between Mr. Abbas Safari S/O Rajab Ali who is an Afghan national & Ms Masoumeh Mohammadi, d/o Hossein Ali who is an Afghan national, whose full particulars have been recorded in this marriage certificate, and therefore issues this marriage certificate bearing the registration number 1693 to certify the same.

[6] The Applicant states the Afghan Embassy gave the parties two copies of the Marriage Certificate. One copy was kept by the Applicant and the other copy was kept by the Respondent.

[7] The Applicant states that the “actual wedding” took place on October 23, 2013.

[8] In September 2014 the Applicant paid the Government of Canada the sum of $1,040.000 to sponsor the Respondent’s immigration to Canada from Iran.

[9] On May 14, 2015, the Respondent arrived in Canada. Rather than live with the Applicant, the Respondent chose to live with his mother, brother and sister-in-law in Mississauga, Ontario. A few days later he began living with the Applicant. They consummated their marriage.

[10] On August 18, 2015, the Respondent became a permanent resident of Canada.

[11] On April 25, 2016, the parties separated. The Respondent told the Applicant that their marriage was over and he moved to his mother’s home.

[12] The Applicant believes that the Respondent has continued a relationship with another woman in Iran who is the mother of his two children and that prior to their separation that he had affairs with other women. The Applicant believes that the Respondent married her solely to become a permanent resident in Canada.

[13] The Applicant is disabled due to injuries to her arm and back as a result of an elevator crash that occurred prior to her marriage. She currently receives $990 per month under the Ontario Disability Support Program.

[14] The Respondent is employed as a tailor in Toronto. He earns about $35,000.00 per year. It is alleged that he also earns income from his own suit making business.

[15] This Application was commenced on October 28, 2016. The Applicant seeks spousal support retroactive to April 25, 2016 as well as an order that the marriage contract is enforceable. In his Answer, the Respondent seeks a divorce, a restraining/non-harassment order, a declaration that the marriage contract is not enforceable and the return of his personal belongings, including his Canadian immigration papers and Iranian passport. This motion addresses the enforceability of the marriage contract.

[16] The Respondent submits that the marriage contract is neither valid nor enforceable. He submits that: (1) the terms of the Maher described above that are found in the Marriage Certificate were not present when he signed the Marriage Certificate; (2) the amount of the Maher is uncertain and, if the position of the Applicant regarding its value is accepted, it is also unconscionable.

ANALYSIS

Motion for Summary Judgment - Principles

[17] The rules governing a motion for summary judgment under Rule 16 of the Family Law Rules reflects the approach to this type of motion under Rule 20 of the Rules of Civil Procedure.

[18] Whether there is a genuine issue requiring a trial, turns on the following test described by the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7 at para. 49:

There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

[19] In response to affidavit material or other evidence supporting a motion for summary judgment, a responding party may not rest solely on the allegations or denials in the party’s pleadings, but must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial: see Rule 20.02(2). Each side must “put its best foot forward” with respect to the existence or non-existence of material issues to be tried: see Papaschase Indian Band No. 136 v. Canada (Attorney General), 2008 SCC 14 at para. 11. A court is entitled to assume that the record contains all the evidence that the parties would present if the matter proceeded to trial: see Aronowicz v. EMTWO Properties Inc., 2010 ONCA 96 at paras. 17-19.

[20] This motion proceeded on the basis of affidavit evidence filed by both parties. The parties were not questioned on their affidavits. While the parties disagree on whether the Respondent signed a marriage contract that contained no promises on his behalf to deliver gifts to the Applicant, I find that I am able to make a “fair and just” determination of the merits of the motion for summary judgment exercising the powers afforded under Rule 16 of the Family Law Rules.

IS THE MARRIAGE CONTRACT VALID AND ENFORCEABLE?

[21] Muslim tradition provides for a “Maher” prior to marriage:

… For Muslim clients, religiously based marriage agreements are common, but often lawyers are unaware of their existence or implications.

Mahr (also spelled Maher, Mohr and Mehr) is a Muslim tradition in which an agreement is entered into prior to marriage concerning a sum of money that a groom promises to pay his bride in the event of a marriage breakdown or death.

The Encyclopaedia of Islam [E.J. van Donzel et al., eds., The Encyclopaedia of Islam, new ed., vol. 6 (Leiden: E. J. Brill, 1991) p. 78.] defines mahr as “the gift which the bridegroom has to give to the bride when the contract of marriage is made and which becomes the property of the wife.” [emphasis in original]

A husband is obliged to pay this sum to his wife. It provides some financial security for the wife. There is a prompt mahr (muajjal), which is paid at the time of the marriage, and deferred mahr (muwajjal), to be paid only if the couple divorces or husband predeceases the wife. It is common for the bulk of the mahr to be deferred, both because young husbands do not have the finances to pay a large sum up front and because many wives see a large mahr as only necessary if their husbands are no longer supporting them. Where it is not specified which part is prompt and which part is deferred, Sunnis and Shias differ: Shias regard the whole mahr as prompt, and Sunnis regard one-half of the amount as prompt and the other half as deferred.

The mahr is not considered the settlement of all future financial dealings between the couple in the event of divorce or death. In fact, the Qur'an, the laws of several Muslim countries, and several schools of thought, state that the wife is entitled to maintenance and any of her own property in addition to the mahr upon divorce. …

It should be emphasized that marriage in Islam (and also in Judaism) is a civil contract. There is nothing sacred about the solemnization of marriage as is familiar with the Christian traditions. Although Muslim wedding ceremonies often have a religious component, this is not essential for celebration of an Islamic marriage. Moreover, unlike in Christianity, in which the sacrament is indissoluble except in very rare circumstances, a Muslim marriage may be brought to end by a simple divorce. The Quran itself speaks about divorce and the fair treatment of divorced wives.: Fareen L. Jamal, Enforcing Mahr in the Canadian Courts, Ontario Bar Association, Family Law Section, Volume 24, No. 3 - June 2012, pages 1 and 2; http://www.oba.org/en/pdf/sec_news_fam_may12_Enforcing_Jamal.pdf

[22] A marriage contract that as a matter of Muslim tradition provides for a Maher is enforceable in Ontario. As Justice Backhouse stated, at para. 67, in Khanis v. Noormohamed, 2009 27829 (ON SC), [2009] O.J. No. 2245, aff’d 2011 ONCA 127, “[p]ersons can transfer their moral obligations into legal binding ones”.

Does the Marriage Contract Satisfy the Requirements of s. 55(1) of the FLA?

[23] To be enforceable under the FLA, the marriage contract must be made in writing, signed by the parties and witnessed: FLA, s. 55(1).

[24] There is no dispute that the Marriage Certificate (including the Maher provisions) constitutes a marriage contract that was made in writing, signed by the parties and witnessed.

Was the Marriage Contract Altered After It Was Signed and Witnessed?

[25] The Respondent denies that the Marriage Certificate included a promise to provide the Applicant with 150 square meters of land in Canada and 14 gold coins.

[26] In his affidavit sworn July 14, 2017 the Respondent states:

Upon examination of the photocopy of the Marriage Certificate, the dowry section included 150 square metres of land in Canada, 14 gold coins, and a trip to Hajj.

I believe that [the] Applicant added these terms after keeping the Marriage Certificate especially since the terms of the 150 square metres of land in Canada is written disjointly.

In addition, I was not in any financial position prior to marriage or am currently able to purchase 150 square metres of land in Canada and as such, I would not [have] agreed to such a dowry prior to marriage.

Furthermore, the value of the gold coins should not be the value of a Canadian gold coin, but rather the value of Iranian gold coins, which is worth approximately $329 per coin because the Marriage Certificate was executed in Iran. …

Even though we talked about the trip to Hajj as a trip we would take as a married couple, I am willing to pay for her trip to Hajj.

When I signed the Marriage Certificate, I did not receive any legal consultation as to the consequence of entering into the Marriage Certificate with the Applicant and signing the document.

I believe that the translation of the Marriage Certificate that was provided by the Applicant is not the proper translation since it stated that I have residence of Iran but now in Canada.

In short, the dowry section of the Marriage Certificate, when I signed it with the Applicant in front of the two witnesses, was blank. Yet I am willing to uphold our oral conversation and pay for the trip of Hajj. I never once agreed to provide 14 gold coins and 150 square meters of land in Canada to the Applicant.

[27] The Respondent submitted a further affidavit sworn July 25, 2017 which states:

In the presence of the Imam, we were asked about the Mahr Agreement terms, and I stated a flower and a trip to the Hajj. When the Imam asked the Applicant, the Applicant stated the flower, the trip to Hajj, one left arm and right leg. The Imam said that it was not acceptable and told us to go elsewhere. As such the Imam did not sign any documents nor officiated our marriage.

As previously stated in my Affidavit dated July 14, 2017, the Applicant and I did not have any negotiation or meeting of the minds in regards to the Mahr agreement. We only orally talked about the trip to Hajj that we would take as a married couple. The terms in regards to the gold coins and the 150 (square) metres of land in Canada was not written when I signed the marriage certificate.

[28] In her affidavit sworn July 24, 2017 the Applicant states:

It is customary under Muslim law for every couple to have a Maher agreement. The allegations that the Respondent did not know the terms of the Maher agreement are false. We discussed the terms of the agreement prior to the marriage and they were written on the date that the marriage certificate was signed. In fact, during the marriage ceremony the Imam asked the Respondent three times what the terms of the Maher agreement were. The Respondent responded three times. Similarly, I was asked three times what [were] the terms of the Maher agreement. I responded three times.

[29] As noted above, the Marriage Certificate also stated, in English:

The terms agreed upon by the spouses

The marriage contract between Mr. Abbas Safari and Ms. Masoumeh Mohammadi is permanent.

Prompt marriage portion _______________.

Deferred marriage portion: a piece of land / 150 square metres in Canada; 14 gold coins and travel to Makka.

The Embassy of Afghanistan in Tehran verifies the authenticity of the marriage contract concluded between Mr. Abbas Safari S/O Rajab Ali who is an Afghan national & Ms Masoumeh Mohammadi, d/o Hossein Ali who is an Afghan national, whose full particulars have been recorded in this marriage certificate, and therefore issues this marriage certificate bearing the registration number 1693 to certify the same. [Emphasis added]

[30] It is uncontradicted that: (1) it is customary under Muslim law for every married couple to enter a pre-nuptial marriage that provides for a Maher; (2) the Marriage Certificate states that the parties entered into a marriage contract; (3) the Marriage Certificate states that Ghullam Rasoul Mohamadi and Wali Rahimi witnessed their marriage at the Embassy of Afghanistan in Tehran. In the Marriage Certificate the photographs, names, place and date of birth, as well as other personal identifiers of these two men, are found under the headings as “Particulars of the First Witness to the Marriage Contract” and “Particulars of the Second Witness to the Marriage Contract”, respectively.

[31] If, as alleged by the Respondent, there were no written promises in the marriage contract at the time that it was signed and witnessed, then: (1) the marriage contract would not have been in keeping with Muslim tradition; (2) there would have been no reason to have a marriage contract that makes no promises; (3) although the Marriage Certificate states in English that Ghullam Rasol Mohammadi and Wali Rahimi “… witnessed the marriage contract”, there would have been no need for them to have done so; (4) there would have been no need for the Embassy of Afghanistan to issue a Marriage Certificate that “verifies the authenticity of the marriage contract”. As a result, I find that the Respondent’s evidence that there were no written promises in the marriage contract at the time that he signed it to not be credible and I prefer the Applicant’s evidence on this point.

[32] Accordingly, I find that the marriage contract provided that the Respondent promised to give the Applicant 150 square metres of land in Canada, 14 gold coins and a trip to the Hajj.

Is the Marriage Contract Void for Uncertainty?

[33] The Respondent submits, in the alternative, that the marriage contract is void as the terms of the promises found in the marriage contract are uncertain.

[34] A marriage contract is a “domestic contract”: FLA, s. 51.

[35] Section 56(4)(c) of the FLA provides that a court may, on application, set aside a domestic contract or a provision in it in accordance with the law of contract.

[36] Section 58(a) of the FLA states that the manner and formalities of making a domestic contract and its essential validity and effect are governed by the proper law of the contract, except that a contract of which the proper law is that of a jurisdiction other than Ontario is also valid and enforceable in Ontario if entered into in accordance with Ontario’s internal law. The proper law of a contract is governed by the law that the parties intended to apply: Vita Food Products Inc. v. Unus Shipping Co., 1939 269 (UK JCPC), [1939] UKPC 7, [1939] 2 D.L.R. 1, at para. 12. Subsection 58(a) of the FLA is inapplicable given that the parties have not proven, nor submitted, that the proper law of the contract is the law of a jurisdiction other than Ontario. In any event, even if the law of Iran or Afghanistan were the proper law of the contract, the parties have adduced no expert evidence regarding the law of contract in those jurisdictions and, as a result, in the absence of such evidence the proper law of the contract is the law of the forum which, in this case, is Ontario.

[37] In UBS Securities Canada, Inc. v. Sands Brothers Canada, Ltd., 2009 ONCA 328, the Ontario Court of Appeal stated, at para. 47, that:

For a contract to exist, there must be a meeting of minds, commonly referred to as consensus ad idem. The test as to whether there has been a meeting of the minds is an objective one - would an objective, reasonable bystander conclude that, in all the circumstances, the parties intended to contract? As intention alone is insufficient to create an enforceable agreement, it is necessary that the essential terms of the agreement are also sufficiently certain. … [Emphasis added]

[38] The assessment of whether there is consensus on the essential terms of a contract was further addressed by the British Columbia Court of Appeal in Berthin v. Berthin, 2016 BCCA 104, at para. 47:

Of course, the terms in question must be enforceable -- i.e., must have a definite as opposed to uncertain meaning such that a court can order either for damages or for specific performance in the event of breach. There is no doubt that courts will "lean heavily against finding contracts void for uncertainty" … . Thus Madam Justice D. Smith stated in Frolick v. Frolick, supra:

An effective agreement requires a meeting of the minds of the parties. An enforceable contract requires a consensus between the parties on all of the essential terms of their agreement. It is the responsibility of the parties, not the court, to clearly express those essential terms so "that their meaning can be determined with a reasonable degree of certainty": Scammell and Nephew Ltd. v. Outston, [1941] A.C. 251.

If the parties fail to reach a meeting of the minds on the essential terms of their agreement, or fail to express themselves in such a fashion that the meaning of the terms they agreed upon cannot be reasonably divined by the court, then the agreement will fail for lack of certainty. However, the requirement of certainty of the terms is always balanced with the reality of transactional negotiations. Parties may intentionally leave gaps in the terms of an agreement to provide for future or mutually satisfactory accommodations. In those circumstances, the court should not apply the doctrine of certainty so rigidly so that the intentions of the parties to create a binding agreement are thwarted.

Lambert J.A. observed in Griffin v. Martens (1988), 1988 2852 (BC CA), 27 B.C.L.R. (2d) 152 (C.A.) at P4: "As long as the agreement is not to be constructed by the court, to the surprise of the parties, or at least one of them, the courts should try to retain and give effect to the agreement that the parties have created for themselves." [Emphasis added]

[39] In Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, the Supreme Court of Canada stated, at para. 47, that to determine the intent of the parties and the scope of their understanding "… a decision-maker must read the contract as a whole, giving the words used their ordinary and grammatical meaning, consistent with the surrounding circumstances known to the parties at the time of formation of the contract." The Ontario Court of Appeal in Salah v. Timothy's Coffees of the World Inc., 2010 ONCA 673, at para. 16, provided further guidance:

The basic principles of commercial contractual interpretation may be summarized as follows. When interpreting a contract, the court aims to determine the intentions of the parties in accordance with the language used in the written document and presumes that the parties have intended what they have said. The court construes the contract as a whole, in a manner that gives meaning to all of its terms, and avoids an interpretation that would render one or more of its terms ineffective. In interpreting the contract, the court must have regard to the objective evidence of the “factual matrix” or context underlying the negotiation of the contract, but not the subjective evidence of the intention of the parties. The court should interpret the contract so as to accord with sound commercial principles and good business sense, and avoid commercial absurdity. If the court finds that the contract is ambiguous, it may then resort to extrinsic evidence to clear up the ambiguity. Where a transaction involves the execution of several documents that form parts of a larger composite whole—like a complex commercial transaction—and each agreement is entered into on the faith of the others being executed, then assistance in the interpretation of one agreement may be drawn from the related agreements.

150 Square Metres of Land in Canada

[40] The Applicant’s affidavit states:

… the average price of a condo in Toronto (where I live) is approximately $518,879.00. A print out of this has been attached hereto as Exhibit “D”. It is my understanding that the cost of a condo would be much higher in Toronto that actual land. As such, I am requesting … a payment of $25,000.00.

[41] The Applicant submits that she believed that the Respondent would purchase land in Toronto for the Applicant because the parties intended to live in the Toronto area. The marriage contract does not reflect the Applicant’s subjective belief. There is nothing in the marriage contract or its surrounding circumstances that objectively supports the Applicant’s belief.

[42] In any event, the promise to give the Applicant “150 square metres of land in Canada” even if it means “150 square metres of land in Toronto” is still uncertain. It fails to identify what particular property was to be given by the Respondent to the Applicant. An address for the property to be transferred would have sufficed and could have resulted in this promise being enforced by specific performance: McKenzie v. Walsh, 1920 72 (SCC), [1920] 61 S.C.R. 312.

[43] I find that the Respondent’s promise to deliver “150 square metres of land in Canada” to the Applicant is void for uncertainty.

14 Gold Coins

[44] The Respondent submits that the promise to give fourteen gold coins to the Applicant should be interpreted to mean fourteen Iranian gold coins rather than fourteen Canadian gold coins as suggested by the Applicant. The parties do not dispute that an Iranian gold coin has a value of about $329.00 per coin and that a Canadian gold coin has a value of about $1,745.39 per coin.

[45] The Respondent submits that the reference to “gold coin” in the marriage means an Iranian gold coin because the marriage contract was entered into in Iran. The Applicant does not explain why the term “gold coin” in the marriage contract would, based on the terms of the marriage contract or the surrounding circumstances, mean a Canadian gold coin.

[46] I find that the Respondent’s interpretation of the term “gold coin” is reasonable. I also find, in the absence of any evidence to the contrary of the value of an Iranian gold coin, that the value of “14 gold coins” under the marriage contract is $4,606.00.

Travel to Makka

[47] The Respondent admits that he told the Applicant that he would pay for the Applicant’s Hajj pilgrimage.

[48] The Respondent does not submit that this promise is too uncertain to be enforced.

[49] The Applicant has provided evidence which suggests that the average price for a Hajj pilgrimage travel package is $11,240.00. This amount is not disputed by the Respondent. No other evidence was provided by the Respondent.

[50] I find that the value of “travel to Makka” as provided by the marriage contract is $11,240.00.

Conclusions

[51] I order that the Respondent pay the sum of $15,846.00 to the Applicant in respect of the enforceable promises made by the Respondent under the marriage contract to the Applicant.

[52] The parties have agreed to bear their own costs of this motion regardless of its outcome.

Mr. Justice M. D. Faieta

Released: August 11, 2017

Mohammadi v. Safari, 2017 ONSC 4696

Case Summary

INTRODUCTION

BACKGROUND

ANALYSIS

Motion for Summary Judgment - Principles

IS THE MARRIAGE CONTRACT VALID AND ENFORCEABLE?

Does the Marriage Contract Satisfy the Requirements of s. 55(1) of the FLA?

Was the Marriage Contract Altered After It Was Signed and Witnessed?

Is the Marriage Contract Void for Uncertainty?

150 Square Metres of Land in Canada

14 Gold Coins

Travel to Makka

Conclusions

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Financial Outcomes

Issues

Statutory Provisions 4

Legal Tests 2

Legislation 1