%201.png?)
Article written by Ron Shulman
Canada has a long and proud heritage of being a multi-cultural society, and one that places a value on the diversity of its citizens. This laudable policy has numerous benefits, but it gives rise to significant responsibilities as well: Canadian courts must sometimes recognize foreign legal traditions, and evaluate the precise extent to which the laws, habits and customs of other countries and cultures should be recognized and imported into our own legal system.
Numerous important and culturally-sensitive laws and customs fall into this category. One example is the traditional Islamic marriage contract known as a “Mahr” (also referred to as “Meher”, “Mehr”, or less commonly, “Moakhr”), and the legal question of whether it is valid and enforceable in Canada. The court in Kaddoura v. Hammoud, 1998 CanLII 14937 (ON SC), described such contracts in this way:
[14] “Mahr” is a gift or contribution made by the husband-to-be to his wife-to-be, for her exclusive property. It is not, however, a gift in the sense that a gift is given by the grace of the giver, but in fact “Mahr” is obligatory and the wife-to-be receives it as of right. Mahr has its roots in the Holy Quran and it is an essential to Muslim marriage. Without it, there is no Muslim marriage. Dr. Jamal Mannaa Alisolaiman, Imam of the Mosque in Ottawa and a scholar in Islamic studies, testified that the Mahr was an obligatory gift, which was a mark of the husband-to-be’s commitment to the marriage. He described how in many marriages, a portion of the Mahr is paid promptly, that is, before the marriage is consummated, and a portion, often the larger portion, is deferred to be paid on demand by the wife, or upon divorce or upon the death of the husband. In the case of such deferred payment, the portion deferred had the effect of helping look after a wife after divorce or after her husband’s death. He also advised that although a wife could forbear or waive payment of the Mahr, she was entitled to it as a matter of Islamic religious principle.
[15] … [W]hile Mahr was in the nature of a right held by a Muslim wife, she could, by certain conduct or in certain circumstances, disentitle herself to it. …[A]ny dispute over the obligation of the Mahr was a matter to be determined by religious authorities. In any event, both agreed that any such dispute was to be resolved according to Islamic religious principles. …
[16] As it is essential to a Muslim marriage, there must be an agreement as to Mahr.
Fortunately, the preliminary issue of whether a Mahr agreement can ever be enforced by a Canadian court was conclusively resolved in Marcovitz v. Bruker, 2007 SCC 54 (CanLII), where the Supreme Court of Canada held that the mere fact that a contractual agreement has a religious aspect or basis does not preclude its judicial consideration and enforceability, provided the agreement otherwise satisfies the requirements to make it valid and legally binding. In that case, the Supreme Court of Canada was asked to consider a religion-based divorce known as a “get”; in doing so, the Court reflected on the legal nature in Canada of such religious obligations and quasi-contractual traditions:
122 In Canadian law, a court is thus not barred from considering a question of a religious nature, provided that the claim is based on the violation of a rule recognized in positive law. In this regard, there have already been cases in which Canadian courts have been asked to give effect to obligations related to a get or a religious marriage contract. The requirement that there be a rule of positive law before an action will lie is a neutral basis for distinguishing cases in which intervention is appropriate from cases in which it is not. …
123 However, if a spouse can show that the religious marriage contract meets all the requirements for a civil contract under provincial legislation, then the courts may order the fulfilment of undertakings to pay the amounts provided for in the contract. …
124 In every case, the parties and the court must refer to the relevant civil rules to determine whether the undertaking is binding. …
Accordingly, and as with all other types of marriage contracts, the legal validity of a Mahr is open to assessment by the family courts in the normal course.
Validity in Ontario
- i) Formal Requirements
With that framework in place, courts have considered the validity of Mahr agreements in a few previous cases, and have clarified the legal requirements in this regard. To be valid in Ontario, a Mahr must:
- Must be in writing, signed by both parties and witnessed, pursuant to the formal validity requirements of s. 55 of the Family Law Act, R.S.O. 1990, c. F.3 (Khanis v. Noormohamed, [2011] O.J. No. 667 (Ont. A.); Yar v. Yar 2015 ONSC 151 (CanLII)); and
- Must comply with s. 52 of the Family Law Act, in terms of the subject-matter and topics covered by the intended marriage contract (e. it may cover ownership in or division of property and certain other matters, but not custody of or access to children; it also cannot purport to place on a spouse’s rights to the matrimonial home). See for example Amlani v. Hirani, [2000] B.C.J. No. 2357 (B.C. S.C.), where contract assessed as permissibly dealing with property ownership.
Note also that various conflict-of-laws rules relating to marriage contracts are expressly set out in s. 58 of the Family Law Act, which entitle the courts to consider the proper law and validity of contracts made outside of Ontario in view of certain parameters.
- ii) Setting Aside a Mahr as Invalid
An Ontario court’s authority to declare a Mahr agreement invalid or unenforceable is established by s. 56(4) of the Family Law Act; this provision allows a court to set aside any domestic contract in accord with the general law of contract, as well as on various listed grounds. In this context, is must be noted that a determination that a Mahr is valid under Islamic law is not determinative of the issue in Ontario. (Yar v. Yar 2015 ONSC 151 (CanLII)).
Courts are then simply left to apply these general contract-validity principles to specific cases. In early decisions (i.e. pre-dating the S.C.C. decision in Marcovitz v. Bruker), some judges have expressed reluctance to wade into what has been called a “religious thicket” (Kaddoura v. Hammoud (1998), 168 D.L.R. (4th) 503 (Ont. Gen. Div.)). More recently, however, courts have openly expressed the goal of being flexible in accommodating the traditions of other countries and cultures where it is feasible to do so (see for example Aziz v. Al-Masri, 2011 BCSC 985 (CanLII)).
The few recent cases dealing with a Mahr show consistency in the courts’ application of contract principles. In Khanis v. Noormohamed, [2011] O.J. No. 667 (Ont. C.A.); the Ontario Court of Appeal upheld a trial judge’s decision to enforce a Mahr agreement obliging the husband to pay the wife a certain sum, in light of its full compliance with the Family Law Act requirements. In contrast, in Yar v. Yar 2015 ONSC 151 (CanLII), the Mahr was set aside primarily on the basis that it was written in Arabic, despite the fact that neither party was able to speak, read or write in that language. The document was also prepared without either party’s involvement, there was no negotiation, and there was no opportunity for either of them to obtain independent legal advice. The court found there was also demonstrated confusion at the time by the intended husband, in connection with the currency in which the Mahr was to be paid. In short, in deeming the Mahr to be unenforceable, the court concluded it was not satisfied that the parties to the agreement “were of a like mind, knew what they were agreeing to, and were agreeing to be bound by the terms of the contract”.
Interplay with Support Obligations
Leaving aside the question of formal validity, the contract-based nature of a Mahr nonetheless begs the question of how any sums paid under the agreement are to be characterized under Ontario family law. The cases on this issue are clear: they suggest that the Mahr-based obligation for a husband to pay a sum of money to the wife is generally considered to be separate and apart from his financial obligations under the Family Law Act.
For example, in Khamis v. Noormohamed (2011), 2011 CarswellOnt 794 (Ont. C.A.), the Ontario Court of Appeal specifically endorsed the trial judge’s findings which delineated between the obligations under the Mahr, and the separate equalization obligations under family law legislation. The Court of Appeal wrote:
At paras. 73 and 74, the trial judge made the following observations:
Setting aside a marriage contract under s. 56(4) of the Family Law Act is discretionary. This is not a case where the parties were opting out or giving up rights under the Family Law Act where understanding the legislative scheme and the other party’s financial position were critical. The terms of the marriage contract were simple. Other than the payment of the maher amount of $20,000, the parties retained their rights under the Family Law Act. The evidence satisfies me that the husband understood the promise he made and understood that it was binding upon him. I am not persuaded that, in these circumstances, the court should exercise its discretion to set aside the contract.
The husband submitted that if the $20,000 maher was enforceable, then his net family property at the date of separation should be reduced by the $20,000 for the debt then owing. The $20,000 obligation was entered into and in existence at the date of marriage and comes within the definition of “net family property”. It also existed at the date of separation. Accordingly, there is no effect on net family property. By necessary implication of the words “in addition and without prejudice to and not in substitution of all my obligations provided for by the laws of the land”, the maher amount is excluded from net family property. Otherwise it would undermine the express intention of the agreement and the contract would have no meaning. I find that the $20,000 maher also comes within the meaning of s. 4(2)6 of the Family Law Act and therefore is excluded from net family property. …
This approach was echoed in Etemad v. Hasanzadeh, 2014 CarswellOnt 17252, 2014 ONSC 6737, where the court observed that since the amount agreed to be paid under the Mahr is a debt owed by the husband to the wife at both the date of the marriage and at the date of separation, it does not affect the net family property calculation.
Finally, in Ghaznavi v. Kashif-Ul-Haque (2011), 2011 CarswellOnt 5868 (C.J.), the court concluded that the Mahr could either be considered excluded property under s. 4(2)(6) of the Family Law Act, or it might also be enforceable between the parties as a marriage contract under s. 52 of the Family Law Act, as being “any other matter in settlement of their affairs”. Either way, it was considered a separate obligation from that which arises under provincial family law.
Relationship to Spousal Support
In a similar vein, it appears that the amount payable under a Mahr is not considered a replacement for spousal support – unless perhaps the recipient so chooses. For example, in Etemad v. Hasanzadeh, 2014 CarswellOnt 17252, 2014 ONSC 6737, upon the dissolution of a 25-year marriage the wife chose to obtain judgment in Iran for the Mahr under the parties’ marriage contract rather than to seek temporary spousal support. The husband claimed that the amount he was to pay should be considered a replacement for future spousal support as well. The court disagreed; it stated that the wife’s choice in this regard was “a reason not to award retroactive support, not a basis to decline to award prospective spousal support.”
As an aside, it should be noted that the amount to which a wife is entitled under a Mahr cannot be designated as contractually-based “spousal support” if there is no independent support entitlement that arises under the legislation. This was the unique situation in Rashid v. Shaher, 2010 CarswellOnt 5954, 2010 ONSC 4351, where a wife had taken it upon herself to withdraw $24,000 from the husband’s account to reflect the three months’ spousal support that, pursuant to Sharia law, was her due entitlement under the Mahr in the event the marriage ended. While the court was sympathetic that the intent of this Mahr-based “penalty” was to allow her to support herself if she needed to leave the relationship due to her husband’s misconduct or treatment, it pointed out that the couple had never formally married under the laws of Canada. This meant that while her entitlement to the money may have been a live issue under Sharia law, she had no legal spousal support rights under Canadian law, and was precluded from asking the court for its assistance on this basis. She was ordered to repay the $24,000.
Lingering Judicial Trepidations?
As mentioned, the Supreme Court of Canada in Marcovitz v. Bruker has confirmed the enforceability of a properly-executed Mahr in Canada. Nonetheless, at least one judge has expressed some interesting public policy reservations about the underlying “bride-in-exchange-for-money” flavor of such agreements, even if they are religion-based. In Rashid v. Shaher, 2010 CarswellOnt 5954, 2010 ONSC 4351, the court reflected on the essential nature of a Mahr in the following terms:
…[The Mahr] is a gift from the groom to the bride for her own personal use.
31 The bride had the option to consent to the marriage and Moakhr or not, but [the bride] said she respected and trusted her father, so she accepted the terms he negotiated. The marriage before the Imam then proceeded on September 24, 2005. [The bride] says it would have been a sin if they had lived together without going through this process.
…
134 As the claim to the $20,000 is based on the marriage contract, I wish to address whether there is a public policy concern about enforcing a marriage contact, negotiated by a woman’s father, which requires her to marry a man in exchange for money. Had [the bride] not been the one asking to enforce this contract, and had she not had an option of deciding whether or not she wanted to go ahead with the marriage, I might have had real misgivings. However, in the circumstances of this particular case, there does not seem to be any public policy reason not to honour the agreement that the parties reached. I also note that I am not really being asked to enforce the contract; I am being asked to order [the bride] to give the money back. If there was a “victim” in this contract to pay money for a bride, it was her.
Conclusion
As indicated, courts in Ontario have consistently determined that Mahr agreements are valid in enforceable as marriage contracts, provided they otherwise conform to basic formal validity requirements. In this particular area, family law has shown itself to be sufficiently flexible, and has fortunately managed to deal fairly and consistently with these unique agreements.
Still, there are many other foreign traditions and laws that are yet-to-be-examined or challenged. Their religious and cultural origins, and the fact that they often have no counterpart in the more mainstream Canadian family law, will continue to make their legal scrutiny by courts a potentially sensitive issue.