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MARITAL PROPERTY - Equalization or division - Exempt acquisitions and deductions - Practice and procedure - Appeals

Tuesday, November 14, 2017 @ 8:01 AM  

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Appeal by the husband from a trial judgment ordering equalization of family property and affirming validity of an Islamic marriage contract. The parties married in Iran in 1985 and entered into an Islamic marriage contract. Among other things, the contract included a provision requiring the husband to pay the wife 230 gold coins upon her request. In 2013, the wife initiated divorce proceedings in Ontario. In 2015, a trial occurred on the issues of equalization of family property, post-separation adjustments, and the treatment of the marriage contract. The trial proceeded uncontested. The husband attended trial but was not permitted to participate due to ignoring several prior court orders. The trial judge ordered the husband to make an equalization payment of $187,075 plus post-separation adjustments of $44,450. The marriage contract was affirmed as valid. The equalization payment was inclusive of the gold coins valued at $79,580. The husband appealed.

HELD: Appeal allowed in part. The trial judge did not err in interpreting the Islamic marriage contract as creating an enforceable demand obligation. Characterization of the agreement as a valid domestic contract was amply supported by the evidence. The trial judge's description of the equalization payment as inclusive of the Islamic marriage contract was misleading, as the value of the gold coins was added to the equalization payment, calculated as an additional amount owing by the husband. The treatment of the gold coin payment as excluded from calculation of net family property was incorrect. The calculation of the equalization payment was otherwise supported by the evidence. The valuation of Iranian property was not arbitrary. No double-counting was established. The equalization order was varied to $36,520 to reflect the inclusion of the gold coin payment in calculating net family property, with $44,449 owed for post-separation adjustments and $79,580 owed separately on account of the gold coins.

Bakhshi v. Hosseinzadeh, [2017] O.J. No. 5660, Ontario Court of Appeal, J.I. Laskin, K.N. Feldman and R.G. Juriansz JJ.A., November 2, 2017. Digest No. TLD-November132017004