Court File No.: FS-31062/22

Date: June 19, 2025
Ontario Superior Court of Justice

Re: Elham Malekan, Applicant
And: Amir Abbas Behzadi, Respondent

Before: Kiran Sah
Attendance: Ash Mazinani, Counsel for the Applicant
Respondent Amir Abbas Behzadi (self-represented)
Heard: June 18, 2025

Endorsement

Overview

[1] This endorsement is a ruling on a motion heard following the start of the trial of this action. The issue to be determined involves the parties’ Mahr.

[2] Following the completion of opening statements and the commencement of the Applicant’s evidence in chief, the court raised questions on an issue brought to light during the parties’ openings.

[3] This decision deals with pleadings, standing, and fairness as it relates to the application of the Ontario family property law regime and the Islamic Mahr.

Brief Background

[4] The Applicant wife is 56 years old, and the Respondent husband is 71 years old. They have a 22-year-old child.

[5] The parties married in 2000 in Iran and signed a marriage contract on July 19, 2000, setting out terms of the Mahr.

[6] The parties separated in 2022.

[7] The issues to be determined in this trial include a determination of the appropriate equalization payment and ongoing and retroactive child support and spousal support.

[8] Neither party disputes the following:

• That the Mahr is the subject of their Iranian marriage contract dated July 19, 2000;
• The validity of the Mahr;
• That the Applicant is entitled to enforcement of the Mahr;
• The Mahr is an enforceable contract under the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”) and was made in writing, signed by the parties, and witnessed per s. 55(1) of the FLA;
• That the Applicant attempted to enforce the payment of the Mahr in Ontario and Iran; and
• The Mahr provides for 1,000 full Bahar Azadi gold coins.

[9] The parties dispute the following:

• Whether the Mahr should be equalized;
• The value of the Applicant’s entitlement to the Mahr as of the valuation date;
• The value of the Mahr as of the date of marriage; and
• Where the Mahr is to be inserted in the Net Family Property (“NFP”) calculation.

Position of the Parties

The Applicant

[10] The Applicant does not want the court to consider the payment of the Mahr in this proceeding.

[11] Her NFP filed in the trial record reflects a payment by the Respondent to her of over $595,000. The value of the Mahr is not included in the calculation. The calculation does contain various TBDs in relation to the Respondent’s business interests.

[12] If the value of the Mahr is to be included in the NFP calculation, the Applicant takes the position that it should be inserted as her valuation date asset and the Respondent’s valuation date liability.

[13] The Applicant maintains that it is not appropriate for the court to include the date of marriage value of the Mahr as an asset of hers and a debt to the Respondent on the date of marriage.

[14] The Applicant’s submissions in support of her position focused on the history of the parties’ pleadings, standing, and fairness. Each will be analyzed further below.

The Respondent

[15] The Respondent wants the Mahr to be equalized in the calculation of the parties’ NFP.

[16] His position changed with respect to how the value of the Mahr is to be inserted in the NFP statement.

[17] In his Comparison of Net Family Property Statement, filed in his trial record, the amount of $700,000 is inserted on the Applicant’s side of the ledger under “money owed to you,” effectively increasing her date of separation assets by that amount. He also inserted the amount of $700,000 on his side of the ledger as a valuation date debt owed by him. The Respondent’s Comparison of Net Family Property Statement also lists the Mahr valued at $90,000 as his date of marriage debt. It is his position that the NFP calculation would result in a payment by the Applicant to the Respondent of over $942,000.

[18] In oral submissions, he submitted that the court has discretion to determine how the Mahr should be categorized and then stated that only the date of marriage values should be included.

[19] The Respondent submits that Iran’s current economic and social “chaotic” situation is a force majeure event warranting the enforcement of the Mahr in Ontario using the date of marriage values only.

[20] The Application of this proceeding was issued in August 2022. Within the Application, the Applicant specifically sought an order enforcing the terms of the parties’ Iranian marriage contract and payment of the Mahr, which she estimated to be worth $700,000.

[21] Within the Respondent’s original Answer, dated September 2022, he requested an order that the Applicant’s Mahr be equalized pursuant to Bakhshi v. Hosseinzadeh, 2017 ONCA 838, 139 O.R. (3d) 531.

[22] The Respondent prepared an Amended Answer within these proceedings in June 2023. Within the Amended Answer, the Respondent struck out his request for an order that the Applicant’s Mahr, the 1,000 gold coins, as per the Iranian/Islamic marriage agreement be equalized pursuant to Bakhshi. He did claim an equalization of net family property. The Respondent struck out any reference to the Iranian Mahr in the Amended Answer.

[23] In June 2024, the Applicant signed a Form 12: Notice of Withdrawal stating that she withdraws her claim for the enforcement of the Mahr of 1,000 full Bahar Azadi gold coins pursuant to the parties’ Iranian marriage contract dated July 19, 2000, as was pleaded at paragraph 8, page 8, of her Form 8 Application, issued August 2, 2022.

[24] The Notice of Withdrawal is silent on costs. There is no indication of whether costs were paid to the Respondent, whether the court ordered otherwise, or whether the parties agreed otherwise as required by r. 12(3) of the Family Law Rules (“FLR”).

[25] The Trial Scheduling Endorsement Form (TSEF) makes no reference to the Mahr being at issue for this trial.

[26] Neither party’s draft order requests an order that the Respondent pay the Applicant her Mahr.

[27] The Applicant submits that the payment of the Mahr is not pleaded and was not raised by the parties at the Trial Management Conference or in the TSEF. She claims it is not an issue properly before the court and should not be considered in the context of the equalization of NFP.

[28] The Applicant takes the position that she has the option to enforce the Mahr in Ontario or Iran, and she picks Iran.

[29] The Respondent did not directly address the points raised by the Applicant in his submissions.

[30] While both parties initially pleaded and/or mentioned the Mahr in their pleadings, they tried to remove any reference by withdrawing the claim or pleading amendment.

[31] I do not accept the Applicant’s Notice of Withdrawal.

[32] There is no evidence of the parties’ agreement to the withdrawal of that portion of the Application. Even if there were, there is clearly no consent at this time.

[33] There is no evidence of costs payable to the Respondent or even a discussion of costs.

[34] There is no order of this court authorizing the withdrawal of the Mahr portion of the Applicant’s claim.

[35] Generally, a party may withdraw a pleading at any time, subject to a court order. There is no court order issued in this case.

[36] It is not proper to simply serve and file a Form 12: Notice of Withdrawal and expect the opposing party and the court to accept it without question.

[37] Even if I am incorrect in my assessment of r. 12 of the FLR and the Notice of Withdrawal did in fact remove this claim from the proceeding, the Respondent seeks to include the Mahr in the NFP calculation, essentially asking to amend his pleadings.

[38] The court has residual discretion to control its own process and consider claims sought to be withdrawn or added, even on the eve of trial: see Serra v. Serra, 2009 ONCA 105, 93 O.R. (3d) 161, with additional reasons at 2009 ONCA 395, 66 R.F.L. (6th) 40.

[39] I would allow the amendment to include the claim on the basis that all parties initially asked for it, they knew about it for some time, and the Applicant only sought to remove the claim a year ago, with no apparent discussion with or consent from the Respondent.

[40] In addition, both parties pleaded for an equalization of net family property.

[41] Under s. 4 of the FLA, net family property means the value of all property, except property described in subsection 2, that the spouse owns on valuation date after deducting the spouse’s debt and any other liability. Excluded property includes the value of property, other than a matrimonial home, that a spouse owned on the date of marriage, after deducting the spouse’s debt and other liabilities, other than debt or liabilities related directly to the acquisition or significant improvement of a matrimonial home, as calculated as of the date of marriage.

[42] The exclusions set out in s. 4(2) of the FLA do not apply here. Even though both parties agree that the terms of Mahr are a domestic contract, there is no provision within the domestic contract/Mahr which provides that it is not to be included in the parties’ net family property.

[43] “Property” as defined in the FLA means any interest, present or future, vested or contingent, in real or personal property and includes,

(a) property over which a spouse has, alone or in conjunction with another person, a power of appointment exercisable in favour of himself or herself,

(b) property disposed of by a spouse but over which the spouse has, alone or in conjunction with another person, a power to revoke the disposition or a power to consume or dispose of the property, and

(c) in the case of a spouse’s rights under a pension plan, the imputed value, for family law purposes, of the spouse’s interest in the plan, as determined in accordance with section 10.1, for the period beginning with the date of the marriage and ending on the valuation date.

[44] This definition of “property” includes the Mahr.

[45] By virtue of pleading equalization of net family property, the provisions of Part I of the FLA apply.

[46] Section s. 5(7) of the FLA states the purpose of the equalization provisions as follows:

The purpose of this section is to recognize that child care, household management and financial provision are the joint responsibilities of the spouses and that inherent in the marital relationship there is equal contribution, whether financial or otherwise, by the spouses to the assumption of these responsibilities, entitling each spouse to the equalization of the net family properties, subject only to the equitable considerations set out in subsection (6).

[47] Both parties and the court were on notice that an issue to be determined in this case is the equalization of net family property. To allow a party to pick and choose what property and/or debts and liabilities are to be included runs contrary to the purpose of the section.

[48] The Mahr is a debt owing by the Respondent to the Applicant. It is property to the Applicant, even if it is contingent. The Mahr is a financial provision, entered into by both parties, on consent, which they knew bestowed upon the Applicant entitlement to contingent property and a corresponding debt to the Respondent.

[49] The Mahr is required to be considered under the property provisions of the FLA, which is required to address all forms of property, debt, and money owing to the parties, unless there is a valid domestic contract that contracts out of the Ontario regime. No such valid domestic contract exists in this case.

[50] If the parties consented to the Mahr not being included in the calculation before this court or to allow the Mahr matter to be adjudicated in an Iranian court, I would not have interfered with that agreement. However, there is no such agreement between the parties.

Standing

[51] The Applicant submits that the Respondent does not have standing to assert claims regarding the Mahr on behalf of the Applicant.

[52] She relies on Morris v. Nicolaidis, 2021 ONSC 2957, and Karatzoglou v. Commisso, 2023 ONCA 738, 95 R.F.L. (8th) 264.

[53] The Respondent did not respond to these submissions.

[54] Both cases are distinguishable from the case at bar. Those cases dealt with third parties and efforts to assert trust claims relating to real property. They do not deal with property to be clearly included in equalization which was subject to a domestic contract like the Mahr at issue.

[55] There is no evidence of a trust claim in the case before me. The parties have agreed that the Mahr is a domestic contract between them.

[56] The Applicant is not successful on this ground.

Fairness

[57] In weighing fairness and the implications of including the Mahr in the NFP calculation, the Applicant submits that the court should consider potential remedies to mitigate any potential of unfairness.

[58] Specifically, the Applicant suggests that the court could consider the provisions of s. 5(6) of the FLA and vary the equalization between the parties if the resulting payment is found to be unconscionable.

[59] The Applicant proposes that this court should (a) conduct the NFP calculation without including the Mahr, (b) consider how the Mahr would affect the numbers, and (c) if it decides the payment is unconscionable, adjust the numbers accordingly.

[60] The Respondent did not reply to this submission.

[61] Given that I have decided to include the Mahr in the NFP calculation, I am not required to consider this request.

[62] The parties or the court may raise unconscionability and/or a s. 5(6) claim for an unequal division of NFP once their respective positions on all assets and debts are clarified through trial.

Date of Marriage and Valuation Date

[63] The Applicant argues that the Mahr should only be included as a valuation date asset and debt.

[64] While Bakhshi, the leading Court of Appeal decision on the treatment of the Mahr, did not explicitly include the Mahr as a date of marriage asset and debt in the NFP calculation, its primary focus is the effect of treating it as excluded property on the valuation date.

[65] The Court of Appeal did not turn their minds to the inclusion of the Mahr as a date of marriage asset and debt. That was not the subject of the appeal.

[66] There have been several recent decisions of this court discussing the inclusion of the Mahr as a date of marriage asset and debt: see R. v. N., 2021 ONSC 7638; F. v. A., 2023 ONSC 6703; and Nasrollahzadeh v. Akhtari, 2025 ONSC 3028.

[67] In R. v. N. and Nasrollahzadeh, the court heard expert evidence on the Mahr.

[68] I adopt the approach taken by the court in the cases above and will include the Mahr as a valuation date asset and debt and date of marriage asset and debt.

[69] I disagree with the Respondent’s submission that only the date of marriage values should be inserted in the calculation.

[70] The property regime in Ontario is set out in the FLA and it clearly states what is to be included in determining net family property. This includes the value of property and debts and liabilities on the date of marriage.

[71] The Mahr created a debt payable immediately upon marriage. While payment is contingent upon the Applicant making a demand, this does not disqualify it as property.

[72] Property has been defined to mean any interest, present or future, vested or contingent, in real or personal property. This includes the Mahr on the valuation date and the date of marriage.

Continuation of Trial

[73] In summary, the Mahr will be included in the net family property calculation for this trial as an asset and debt/liability as of the date of marriage and valuation date.

[74] After hearing the court’s ruling, the parties agreed to discuss potential experts/valuators to be retained to determine the value of the Mahr on the relevant dates.

[75] They each proposed one name. They will be given an opportunity to contact each of their proposed valuators to determine cost and how quickly each can attend to the valuation, given we are in trial.

[76] If the parties cannot consent on which to use, the court will select for them pursuant to r. 20.3 of the FLR.

“Justice Kiran Sah”

The Honourable Justice Kiran Sah

Released: June 19, 2025