INTRODUCTION
The Canadian Courts have considered Maher (sometimes also written as Mahr) as any property conveyed under an Islamic Marriage Contract and the Courts have enforced it as a valid civil contract despite having a religious aspect. The question of whether the property conveyed as a result of Maher is excluded from the definition of net family property (“NFP”) and excluded from equalization, has been discussed in the Court of Appeal for Ontario’s decision.
BACKGROUND
The trial judge concluded that the Maher was a valid and binding marriage contract pursuant to s. 55 of the Family Law Act (“FLA”). The trial judge further concluded that the value of the Maher (given to the wife) shall be excluded from the calculation of NFP. To reach this conclusion, the judge relied on s. 4(2)6 of the FLA. The husband in this case appealed the Order.
ANALYSIS
Before going to the Court of Appeal’s analysis, I would provide the relevant parts of s.4 of the FLA, on which the trial judge relied to exclude Maher from NFP:
4(1) In this Part,
[…]
“net family property” means the value of all the property, except property described in subsection (2), that a spouse owns on the valuation date…
[…]
4(2) The value of the following property that a spouse owns on the valuation date does not form part of the spouse’s net family property:
- Property, other than a matrimonial home, that was acquired by gift or inheritance from a third person after the date of marriage.
[…]
- Property that the spouses have agreed by a domestic contract is not to be included in the spouse’s net family property. [Emphasis added]
The Court of Appeal concluded that Maher shall become part of the equalization and shall not be excluded in that case. In reaching this conclusion, the Court finds: “s.4(2)6 of the FLA operates as an exception to the general rule and allows spouses to agree to exclude certain property from the NFP calculation. The issue in this case is whether the parties agreed to exclude the Maher payment from the wife’s NFP, as they had in Khanis. The trial judge erred in law by not reviewing the Maher to determine whether the spouses had actually made such an agreement”. The Court further finds that “Maher in this case contains no express agreement that the Maher payment is to be excluded from the wife’s NFP. Moreover, there is no basis for inferring the parties intended to exclude it. The objective contractual intentions of the parties are to be determined at the time when the contract is made.”
The Court also rejected the wife’s argument that Maher’s payment should be considered akin to a dowry, as the dowry would also be included as part of NFP.
CONCLUSION
The Court of Appeal concluded in this case that Maher’s payment shall be part of the NFP, in the absence of any evidence that can establish the objective intention of the spouses to treat Maher differently.
It is important to consult with a family lawyer in Ontario who understand the specific legal implications and requirements related to Maher in family law proceeding. IQBAL LAW can provide you with legal services to address such complicated family law issues effectively.