Melding Foreign Marriage/Divorce Traditions into Canadian Family Law
Around the world, Canada is renowned for its multiculturalism. Our social policies embrace cultural diversity, and often incorporate religious or cultural traditions from other parts of the world into our own. Among many other things, this helps promote a sense of community and fosters certain values.
But it may not be widely recognized that some of those traditions can also have legal repercussions for those who exercise them here in Canada.
A case in point is the Muslim marriage contract known as the “Mahr” (sometimes spelled “Maher”), which his customary for Muslim couples who are getting married. It is equivalent to a “bride price” or “dowry”: The soon-to-be husband agrees in writing to pay the wife, as separate property, a specified amount that is set out in contract.
Under Canadian law, there was originally some dispute as to whether this type of traditional marriage contract could even be enforced in this country. The Supreme Court of Canada eventually resolved the question: It held that even though a Mahr has a religious aspect, it can be an enforceable foreign marriage contract under provincial legislation like the Ontario Family Law Act (“FLA”). The only stipulation is that it must be made in writing, signed by the parties, and witnessed. If there is a disagreement on how the contract is interpreted, the court must consider the objective intentions of the parties, including any religious or cultural purposes the contract may have.
So while enforceability is no longer in dispute, there was a second problem: How to treat the money paid by the husband to the wife under a Mahr after they separate, when it comes time to determine their Net Family Property (NFP) figures for equalization?
The court took a look at this issue in a recent case called Ramezani v. Najafi. It confirmed the rationale in a ruling from a few years ago that we covered in the article “Is Husband’s Payment of 230 Gold Coins Under Islamic Marriage Contract Excluded from Wife’s Property?”. It concluded the Mahr payment from husband to wife must be treated under the FLA like any other payment obligation between the spouses.
The same principles apply to Sharia marriage contract under Islamic law. Subject to the requirements around signatures and witnessing, they are likewise valid and enforceable in Ontario. This was seen in a recent case called Hesson v. Shaker, where the court ordered that the $30,000 payable by the husband to the wife under such a contract was legally considered to be his debt to her, for the purposes of the equalization calculation.
Divorce is another area where foreign laws and traditions can pose unique challenges when imported into the Canadian Family Law context.
In a case called N.S. v. A.N.S., the court was faced with a husband who spitefully refused to give his wife a “Get”, which is a Jewish divorce. Under Jewish law, only a husband can give one to the wife, and until he does so, the wife cannot remarry in accord with her religion, nor have children recognized as legitimate. The husband in that case refused to cooperate allegedly due to the wife’s “conduct” and “lies”; however the court found he was really trying to control, harass, threaten and intimidate the mother during their divorce and custody negotiations.
The Ontario Family Court responded by striking out some of the husband’s pleadings, and making divorce and custody orders in the wife’s favour. Although this did not solve the wife’s religion-based conundrum around her husband’s refusal to give a Get, it did give her the go-ahead to obtain some recourse under Canadian law in connection with her divorce, property, and custody issues.
For the full text of the decisions, see:
Ramezani v. Najafi, 2021 ONSC 7638
Hesson v. Shaker, 2020 ONSC 1319
N.S. v. A.N.S., 2021 ONSC 5283
