Issue

Is a “Mehriyeh” or dowry, which is a financial payment from husband to wife in many middle eastern countries, enforceable in British Columbia?

Facts

No facts provided.

Conclusion

Courts in British Columbia and Ontario have found that contracts for Maher are enforceable where the evidence established that they met the definition of “marriage agreement” in the applicable family law legislation and where they are not unfair. (Kariminia v Nasser)

The BCSC recognized the enforceability of a Maher in Nathoo v. Nathoo. (N.M.M. v. N.S.M.)

There have been a number of cases in British Columbia that have dealt with the nature of contracts and Mehriehs similar to the Iranian Marriage Contract. For example, in Delvarani v. Delvarani, where Powers J. commented that documents similar to this have been recognized and enforced in British Columbia where the evidence supports those findings. They have been recognized as valid and binding marriage agreements as contemplated by the Family Relations Act, R.S.B.C. 1996, c. 128. (Sharifpour v Rostami)

Claims to enforce dowry provisions have been accepted in British Columbia where the evidence established that they met the definition of “marriage agreement” in the former Family Relations Act. The marriage portion of a religious marriage certificate “has been interpreted to be in the nature of a reverse dowry or sum of money agreed upon by the parties, which is to be paid by the husband to the wife in the event of a separation”. In Amlani, the court was satisfied that it was a term of the marriage contract that the “marriage portion” amount (“maher” or “mehr” in that case) was payable upon dissolution of the marriage. A similar finding was made in N.M.M. In both of these cases, the marriage portion was enforced as a marriage agreement. In Delvarani it was not, as the judge was not satisfied that an agreement had in fact been reached. (Mohammadi v. Mohammadi)

In Mohammadi v. Mohammadi, with respect to a marriage certificate signed in 1999 containing a dowry, Fisher J. held that even if the dowry was a valid marriage agreement under the Family Relations Act, it was subject to being set aside if the court determines it to be unfair, a less stringent standard than that under the Family Law Act.

The existence of an enforceable marriage agreement must be supported by the evidence in each case. In some cases, there may be restrictions on when the mehr is payable. Even if the dowry qualified as a valid marriage agreement under the Family Relations Act it may be set aside if it is found by the court to be unfair. (El-Jaroudi v El-Mikati)

In El-Jaroudi v El-Mikati, the wife claimed for a marriage dowry which she said was payable upon dissolution of the marriage pursuant to a Lebanese Islamic marriage contract signed in 1998. The husband acknowledged that the parties entered into the marriage contract, but argued that it was void and unenforceable. Counsel conceded there was a difference between Lebanese and Iranian marriage contracts. On the facts, the Court found that the marriage contract would not be enforceable as it was unfair. Shergill J. held that the marriage agreement did not create a contractual remedy in addition to a civil remedy within the BC family law regime, but rather, instead of a civil remedy. It provided for resolution of any property claims the claimant might have on marriage dissolution, through payment of a deferred dowry. The marriage contract was held to be part of a separate property regime that addressed all the property rights available to the claimant under Islamic Sharia Law. The claimant acceded to the Court’s jurisdiction by pursuing a claim for division of family property and debts, and so waived her rights to assert a claim for payment of a dowry, which was part of a different property law regime.

In Kariminia v Nasser, Forth J. awarded a sum for maher and referred to the discussion in Mohammadi for the principles concerning dowry.

In Sharifpour v Rostami, Weatherill J. did not enforce a Mehrieh, a form of reverse dowry. Weatherill J. found that the Iranian marriage contract was essentially a pre-nuptial agreement within the meaning of s.93 of the Family Law Act. The contract for 2,000 gold coins was found to be purely for symbolic reasons. In addition, even if it were binding, the Court would have set it aside as it could have been significantly unfair to enforce it.

In A.M. v M.S., Steeves J. applied Mohammadi, and held that in light of disagreements between the parties as to the meaning of Iranian law and value of the mehr, if the parties wished a decision as to how it would be treated and its values they would be required to comply with the rules on expert evidence as to the law and value of the mehr.

Law

In Mohammadi v. Mohammadi, 2016 BCSC 1873 (CanLII), the respondent wife sought enforcement of the dowry provision in her Iranian marriage contract. The dowry was not enforced as the evidence showed that the parties never intended to enforce the dowry of 700 gold coins, and even if they did, it would not have been a fair agreement given the substantial amount involved and the claimant’s limited financial resources, both at the time of the marriage and at the time of the hearing.

Fisher J. held that similar claims to enforce provisions of these kinds of marriage documents have been accepted in British Columbia where the evidence established that they met the definition of “marriage agreement” in the former Family Relations Act. The marriage portion of a religious marriage certificate “has been interpreted to be in the nature of a reverse dowry or sum of money agreed upon by the parties, which is to be paid by the husband to the wife in the event of a separation”. In Amlani, the court was satisfied that it was a term of the marriage contract that the “marriage portion” amount (“maher” or “mehr” in that case) was payable upon dissolution of the marriage. A similar finding was made in N.M.M. In both of these cases, the marriage portion was enforced as a marriage agreement. In N.M.M., the husband believed that the maher was symbolic only, but he also understood that by signing the document he undertook to pay the amount specified to his wife in the event of a marriage breakdown. In Delvarani it was not, as the judge was not satisfied that an agreement had in fact been reached. With respect to a marriage certificate signed in 1999 containing a dowry, it has been held that even if the dowry is a valid marriage agreement under the Family Relations Act, it is subject to being set aside if the court determines it to be unfair, a less stringent standard than that under the Family Law Act:

Marriage portion (dowry)

[45] The parties’ Iranian marriage certificate includes a “Marriage Portion” which provides as follows:

A volume of Holy Koran, a pane of mirror, a pair of candleholders, which are all submitted to the Wife and she admitted receipt, plus 700 Full Bahar Azadi Gold Coins, being the husband’s liability and payable to the Wife upon her demand. Signed by the two spouses.

[46] The respondent testified that the value of the 700 gold coins referenced in the marriage portion is approximately $276,000. It appears that the dowry is a contract between the husband and the wife. The respondent described it as both a contract between the families and a contract just between the parties. She said that she has never claimed this amount and did not plan to claim it in Iran, but at the same time, she has never given up her right to claim it.

[47] The claimant testified that the marriage portion of the marriage certificate was purely symbolic. He never had the equivalent of 700 gold coins and that number was based on a numeric calculation of the respondent’s name. His understanding is that the dowry is security for housewives in Iran who do not work. In any event, he said that the respondent had agreed not to seek her dowry in Iran and submitted that she should not be able to do so here.

[48] Similar claims to enforce provisions of these kinds of marriage documents have been accepted in British Columbia where the evidence established that they met the definition of “marriage agreement” in the former Family Relations Act, RSBC 1996, c. 128 (repealed): Delvarani v. Delvarani2012 BCSC 162N.M.M. v. N.S.M.2004 BCSC 346Amlani v. Hirani2000 BCSC 1653. Given that the Iranian marriage certificate in this case was signed in 1999, the provisions of the Family Relations Act apply to issues involving the enforcement of marriage agreements, per s. 252(2)(a) of the Family Law Act.

[49] The Family Relations Act, in s. 61(2) defined a “marriage agreement” as

… an agreement entered into by 2 people before or during their marriage to each other to take effect on the date of their marriage or on the execution of the agreement, whichever is later, for …

(b) ownership in, or division of, family assets or other property during marriage, or on the making of an order for dissolution of marriage, judicial separation or a declaration of nullity of marriage.

[50] In Delvarani, the court reviewed these cases and concluded that the marriage portion of an analogous religious marriage certificate “has been interpreted to be in the nature of a reverse dowry or sum of money agreed upon by the parties, which is to be paid by the husband to the wife in the event of a separation” (at para. 202). However, it was emphasized that the evidence must support that conclusion in each case.

[51] In Amlani, the court was satisfied that it was a term of the marriage contract that the “marriage portion” amount (“maher” or “mehr” in that case) was payable upon dissolution of the marriage. A similar finding was made in N.M.M. In both of these cases, the marriage portion was enforced as a marriage agreement. In Delvarani it was not, as the judge was not satisfied that an agreement had in fact been reached.

[52] Even if the dowry is a valid marriage agreement under the Family Relations Act, it is subject to being set aside if the court determines it to be unfair, a less stringent standard than that under the Family Law Act. In Amlani and N.M.M., the amounts claimed were relatively modest, in the range of $50,000. In this case, the amount claimed is quite substantial, assuming the respondent’s estimated value of $276,000 is accurate.

[53] The evidence here is far from clear. No expert evidence was adduced about the traditions of dowry or its enforceability in Iran. The marriage portion of the document does not refer to separation but simply states that the 700 gold coins are “the husband’s liability and payable to the Wife upon her demand”. Neither the respondent nor the claimant testified that the dowry was payable in the event of separation but they agreed that it had to be paid or waived if they wanted to register their Iranian divorce.

[54] In N.M.M., the husband believed that the maher was symbolic only, but he also understood that by signing the document he undertook to pay the amount specified to his wife in the event of a marriage breakdown. Here, the claimant believed that the dowry of 700 gold coins was purely symbolic and that the respondent never intended to enforce it. In the context of these parties, the claimant’s evidence about this makes sense. The respondent confirmed that she never claimed the dowry until this litigation and was not planning to claim it in Iran. Moreover, at the time of this marriage, the claimant was not a wealthy man. I find it difficult to accept that he would have undertaken to be liable for such a large dowry that he had no ability to pay had he understood that the respondent intended to claim it from him.

[55] However, the respondent bases her dowry claim not only on the terms of the marriage portion itself but also on what she asserts was an acknowledgement by the claimant that he owed her the dowry and an agreement they made in June 2014, all of which is strongly denied by the claimant. This relates to her reasons for withdrawing money from the parties’ joint line of credit in May 2014.

[56] As I understand the respondent’s evidence, she initially took $195,000 from the line of credit because the claimant said that he owed her the dowry. Shortly after this, she agreed to return $105,000 on the understanding that the claimant would transfer to her his 50% interest in their Iran apartment. The claimant never did transfer his interest but, as she learned later, sold it to his niece. The respondent said that she kept the remaining $90,000 because the claimant said he owed it to her, and then used it to pay for surgery her mother needed in Iran.

[57] The claimant denied having any discussion with the respondent about compensating her for her dowry or the $195,000 withdrawal. He said that he had no idea she was planning to do this and that she did so while he was out of town on business. He was very upset, and when he returned home he had a discussion with the respondent about returning all of the money. According to him, the respondent withdrew the money because she wanted to make sure he didn’t take it. Bank records show that $195,000 was withdrawn on May 27, 2014, just before the respondent capped the limits on the line of credit, and $105,000 was deposited on June 9, 2014. The claimant has always maintained that the respondent should have returned the entire amount. He was upset enough about this that on July 9, 2014 he obtained a without notice order restraining the respondent from disposing of family property.

[58] I do not accept the respondent’s evidence about this. Not only was it completely at odds with the claimant’s evidence, it was inconsistent with her evidence that she never claimed her dowry and did not intend to claim it, and it was inconsistent with evidence she gave in an affidavit sworn in these proceedings on August 12, 2014. There she explained these transactions as follows:

… the Claimant and I agreed that I could withdraw $195,000 from our joint line of credit … In part it was to pay me back for my share of the rental income the Claimant had received for over 10 years without sharing it with me from the property we owned and rented out in Tehran and in part for the coins that the Claimant took from me. The Claimant later changed his mind and now claims that I took the money without his permission. I replaced $105,000 as the Claimant told me he would provide me with the money he owed from the sale of our jointly owned property.

[59] The respondent’s only explanation was that this evidence was also the reason why she took the money from the line of credit. It is not clear what jointly owned property she was referring to.

[60] In my view, the evidence falls short of establishing that the marriage portion in the February 1999 Iranian marriage certificate constitutes a binding agreement that is enforceable as a marriage agreement under the Family Relations Act. The evidence shows that the parties never intended to enforce the dowry of 700 gold coins, and even if they did, it would not have been a fair agreement given the substantial amount involved and the claimant’s limited financial resources, both at the time of the marriage and presently.

[61] The respondent’s submission that the claimant should be required to purchase her interest in the Iran apartment is based on a finding that the claimant agreed to pay her dowry with the $90,000 and his interest in the Iran apartment. I have not made that finding. While I am troubled by the claimant’s conduct in respect of his disposal of his interest in that property, I see no proper basis on which I can order him to purchase a foreign property from the respondent. There are provisions in the Family Law Act regarding the court’s authority to make orders respecting the ownership and division of “extraprovincial property”, but no submissions were made about this and no authorities were provided that could assist me to assess whether such a remedy is possible or appropriate here.

In El-Jaroudi v El-Mikati, 2020 BCSC 868 (CanLII), the wife claimed for a marriage dowry which she said was payable upon dissolution of the marriage pursuant to a Lebanese Islamic marriage contract signed in 1998. The husband acknowledged that the parties entered into the marriage contract, but argued that it was void and unenforceable. Counsel conceded there was a difference between Lebanese and Iranian marriage contracts. On the facts, the Court found that the marriage contract would not be enforceable as it was unfair. Shergill J. held that the marriage agreement did not create a contractual remedy in addition to a civil remedy within the BC family law regime, but rather, instead of a civil remedy. It provides for resolution of any property claims the claimant might have on marriage dissolution, through payment of a deferred dowry. The marriage contract was held to be part of a separate property regime that addressed all the property rights available to the claimant under Islamic Sharia Law. The claimant acceded to the Court’s jurisdiction by pursuing a claim for division of family property and debts, and so waived her rights to assert a claim for payment of a dowry, which was part of a different property law regime.

Shergill J. held that the existence of an enforceable marriage agreement must be supported by the evidence in each case. In some cases, there may be restrictions on when the mehr is payable. Even if the dowry qualified as a valid marriage agreement under the Family Relations Act it may be set aside if it is found by the court to be unfair:

  1. MARRIAGE DOWRY

[13] One of the biggest points of contention between the parties is Ms. El-Jaroudi’s claim for a marriage dowry which she says was payable by Mr. El-Mikati upon dissolution of the marriage, pursuant to a Lebanese Islamic marriage contract dated January 31, 1998 (the “Marriage Contract”).

[14] Mr. El-Mikati acknowledges that the parties entered into the Marriage Contract. However, he argues that the contract is void and unenforceable on jurisdictional grounds. Alternatively, if I find that the contract is enforceable, he submits that the terms of the contract have not been met.

  1. Legal Framework

[15] Section 252(2)(a) of the FLA provides that the Family Relations Act, R.S.B.C. 1996, c. 128 [FRA] applies in relation to proceedings respecting enforcement of an agreement respecting property division, where the agreement was entered into prior to the FLA coming into force: Mohammadi v. Mohammadi, 2016 BCSC 1873 at para. 48.

[16] A “marriage agreement” is defined in s. 61(2) of the FRA, as follows:

61 (2) A marriage agreement is an agreement entered into by a man and a woman before or during their marriage to each other to take effect on the date of their marriage or on the execution of the agreement, whichever is later, for

  1. a) management of family assets or other property during marriage, or
  2. b) ownership in, or division of, family assets or other property during marriage, or on the making of an order for dissolution of marriage, judicial separation or a declaration of nullity of marriage.

[17] The existence of an enforceable marriage agreement must be supported by the evidence in each case: Mohammadi at para. 48.

[18] Even if the dowry in this case qualifies as a valid marriage agreement under the FRA, it may be set aside if it is found by the court to be unfair: Mohammadi at para. 52.

[…]

  1. Analysis

[33] For reasons set out below, I find that the claimant is not entitled to the deferred dowry in the Marriage Contract.

[34] The Marriage Contract fits the criteria for a marriage agreement as per the FRA. It was made between a man and a woman at the commencement of their marriage, and was to take effect at the time of execution, on the making of an order for dissolution of marriage. The deferred dowry is properly characterized as “other property” within s. 61(2)(b) of the FRA.

[35] However, the Marriage Contract provides for payment of a deferred dowry to the wife as part of a specific legal remedy within the context of Lebanese Islamic marriage traditions, which are governed by Sharia Law. Under those traditions, the parties to the marriage contract agree to govern their affairs in accordance with Sharia Law, which dictates how and when the deferred dowry is to be paid. The deferred dowry acts to extinguish any claim the wife has to assets held by the husband beyond that which is provided for in the Marriage Contract. I conclude that it provides a religious remedy for division of family property and debts, as an alternative to, rather than ancillary to, civil remedies.

[36] The claimant relies on Amlani v. Hirani2000 BCSC 1653 at paras. 16-23 for the proposition that she can pursue civil remedies while also seeking enforcement of the Marriage Contract. In Amlani, Justice Sinclair-Prowse rejected the husband’s argument that the mehr was only payable in the absence of civil remedies being available to the wife. In doing so, she noted that the husband’s position was inconsistent with the evidence in that case: Amlani at paras. 29-31.

[37] The facts of Amlani are considerably different than in the case at bar for the following reasons:

  1. a) The marriage contract in Amlaniwas for an Ismaili marriage.
  2. b) The Amlanicontract was entered into in the US during a religious marriage ceremony which was held in the US and which occurred about one year after the parties married in a civil ceremony also held in the US.
  3. c) The parties acknowledged in the contract that the marriage had occurred in accordance with US laws.
  4. d) The contract contained a declaration from the husband that his undertaking to pay the agreed sum of money by way of mehrto his wife “shall be in addition and without prejudice to and not in substitution of all my obligations provided for by the laws of the land”.

[38] Here, the parties are Sunni Muslims, they married in Lebanon and entered into the contract in Lebanon in accordance with Sunni Sharia laws. Conspicuously absent is a declaration in the Marriage Contract from Mr. El-Mikati that the agreement applies in addition to his obligations under Canadian law. It would be surprising if it did, since there is no evidence that at the time of their marriage the parties contemplated that they may be divorcing years later in Canada, in a civil divorce proceeding held under the Canadian legal framework.

[39] In addition, there is evidence in this case both from the parties and Sheikh Fawaz that there are restrictions on when the mehr is payable. Such evidence was missing in Amlani.

[40] The claimant also relies on Kariminia v. Nasser2018 BCSC 695, which is similarly distinguishable. The parties in Kariminia were both Iranian, and had signed an Iranian marriage contract. Counsel for Ms. El-Jaroudi concedes that there is a material difference between Iranian Islamic marriage contracts and Lebanese Islamic marriage contracts. In addition, before getting a Canadian divorce, the wife in Kariminia had obtained judgment in Iran requiring the husband to pay her the dowry. The husband did not attend the hearing in Canada, and Justice Forth does not refer to any evidence about the purpose of the dowry. In those circumstances, Justice Forth upheld the dowry portion of the marriage contract which provided for the payment of 114 gold coins (approximately $49,000).

[41] In Delvarani v. Delvarani2012 BCSC 162, Justice Powers refused to enforce a marriage agreement, holding that it did not constitute a valid marriage agreement under the FRA because the parties did not reach an agreement to payment upon dissolution of the marriage. The court noted at para. 209 that it was difficult to accept that the husband would have committed himself to paying the dowry in addition to any other obligations that he may have under BC laws. Justice Powers went on to note that even if the marriage agreement was valid under the FRA, it was clearly unfair.

[42] A similar conclusion was reached by Justice Fisher (as she then was) in Mohammadi. In that case, the court refused to enforce the marriage agreement, holding at para. 54 that “I find it difficult to accept that he would have undertaken to be liable for such a large dowry that he had no ability to pay had he understood that the respondent intended to claim it from him.”

[43] Having regard to all of the evidence in this case, I conclude that the Marriage Contract is not enforceable alongside a claim for civil remedies under the FRA. In my view, Mr. El-Mikati would not have agreed to pay $60,000 (a not insubstantial amount in light of the parties finances) if he had known that he would also have financial obligations under Canadian civil laws.

[44] Even if the Marriage Contract were enforceable in addition to civil remedies, I conclude that it would be unfair to enforce it, given the amount being claimed relative to the parties’ assets and the impact that enforcement of the agreement would have on the parties’ respective financial positions and legal rights. I say this notwithstanding s. 108(3) of the FLA, which I address more fully elsewhere in these Reasons.

[45] In the event that I find the Marriage Contract enforceable, but conclude that Ms. El-Jaroudi cannot seek enforcement of the Marriage Contract while also pursuing civil remedies, Ms. El-Jaroudi has asked me to defer to the civil remedies available to her under the FLA and DA. When viewed in the light of an alternative property regime, she considers that the Marriage Contract is unfair as it provides inadequate relief and goes contrary to the equal property regime in place in this province. I agree with this characterization of the Marriage Contract, and that in any event, this court is not well placed to make a determination of entitlement to the mehr, since the criteria for entitlement are unique to Sharia law, where the focus is on who initiated the divorce proceeding, who is to blame for the marriage breakdown, and whether there was any mistreatment during the marriage that would entitle the claimant to receiving the dowry. Such considerations are predicated on a fault-based view of entitlement, which was rejected by our legislators long ago.

[46] I conclude that the Marriage Agreement does not create a contractual right in addition to a civil remedy within the BC family law regime, but rather, instead of a civil remedy. It provides for resolution of any property claims the claimant might have on marriage dissolution, through payment of a deferred dowry. The Marriage Contract is part of a separate property regime that addresses all the property rights available to the claimant under Islamic Sharia Law. Ms. El-Jaroudi has acceded to this court’s jurisdiction by pursuing a claim for division of family property and debts under the DA and FLA. She has therefore waived her rights to assert a claim for payment of a dowry which is part of a different property law regime.

[47] The claimant’s claim for the deferred dowry is dismissed.

In Kariminia v Nasser, 2018 BCSC 695 (CanLII), Forth J. awarded a sum for maher and referred to the discussion in Mohammadi for the principles concerning dowry. Forth J. held that courts in British Columbia and Ontario have found that contracts for Maher are enforceable where the evidence established that they met the definition of “marriage agreement” in the applicable family law legislation and where they are not unfair:

The Marriage Agreement and the payment of the Maher

Parties’ Positions

[19] The respondent seeks a compensation order equivalent to the value of 114 Bahar Azadi gold coins from the claimant. The evidence of the respondent is that the Marriage Contract was entered into and there is an Iranian court order that the respondent pay her the 114 Bahar Azadi gold coins, court costs, and attorney’s fees.

[20] The respondent provided evidence that, as of October 23, 2017, the value of one Azadi 22k coin was worth $430 CAD, therefore 114 coins are equivalent to $49,020 CAD.

[21] The position of the claimant is unknown since he did not appear at this application.

Legal principles

[22] The legal issues were recently discussed by Fisher J., (as she then was) in Mohammadi v. Mohammadi, 2016 BCSC 1873:

Marriage portion (dowry)

[45] The parties’ Iranian marriage certificate includes a “Marriage Portion” which provides as follows:

A volume of Holy Koran, a pane of mirror, a pair of candleholders, which are all submitted to the Wife and she admitted receipt, plus 700 Full Bahar Azadi Gold Coins, being the husband’s liability and payable to the Wife upon her demand. Signed by the two spouses.

[46] The respondent testified that the value of the 700 gold coins referenced in the marriage portion is approximately $276,000. It appears that the dowry is a contract between the husband and the wife. The respondent described it as both a contract between the families and a contract just between the parties. She said that she has never claimed this amount and did not plan to claim it in Iran, but at the same time, she has never given up her right to claim it.

[47] The claimant testified that the marriage portion of the marriage certificate was purely symbolic. He never had the equivalent of 700 gold coins and that number was based on a numeric calculation of the respondent’s name. His understanding is that the dowry is security for housewives in Iran who do not work. In any event, he said that the respondent had agreed not to seek her dowry in Iran and submitted that she should not be able to do so here.

[48] Similar claims to enforce provisions of these kinds of marriage documents have been accepted in British Columbia where the evidence established that they met the definition of “marriage agreement” in the former Family Relations Act, RSBC 1996, c. 128 (repealed): Delvarani v. Delvarani2012 BCSC 162N.M.M. v. N.S.M., 2004 BCSC 346Amlani v. Hirani2000 BCSC 1653. Given that the Iranian marriage certificate in this case was signed in 1999, the provisions of the Family Relations Act apply to issues involving the enforcement of marriage agreements, per s. 252(2)(a) of the Family Law Act.

[49] The Family Relations Act, in s. 61(2) defined a “marriage agreement” as

… an agreement entered into by 2 people before or during their marriage to each other to take effect on the date of their marriage or on the execution of the agreement, whichever is later, for …

(b) ownership in, or division of, family assets or other property during marriage, or on the making of an order for dissolution of marriage, judicial separation or a declaration of nullity of marriage.

[50] In Delvarani, the court reviewed these cases and concluded that the marriage portion of an analogous religious marriage certificate “has been interpreted to be in the nature of a reverse dowry or sum of money agreed upon by the parties, which is to be paid by the husband to the wife in the event of a separation” (at para. 202). However, it was emphasized that the evidence must support that conclusion in each case.

[51] In Amlani, the court was satisfied that it was a term of the marriage contract that the “marriage portion” amount (“maher” or “mehr” in that case) was payable upon dissolution of the marriage. A similar finding was made in N.M.M. In both of these cases, the marriage portion was enforced as a marriage agreement. In Delvarani it was not, as the judge was not satisfied that an agreement had in fact been reached.

[52] Even if the dowry is a valid marriage agreement under the Family Relations Act, it is subject to being set aside if the court determines it to be unfair, a less stringent standard than that under the Family Law Act. In Amlani and N.M.M., the amounts claimed were relatively modest, in the range of $50,000. In this case, the amount claimed is quite substantial, assuming the respondent’s estimated value of $276,000 is accurate.

[23] In the Ontario Superior Court decision of Bakhshi v. Hosseinzadeh, 2015 ONSC 7407 [Bakhshi], the court adopted the reasoning of Backhouse J. in Khanis v. Noormohamed, 2009 CanLII 27829 (ONSC) at paras. 67 and 68:

[67] Courts across Canada have differed on whether traditional marriage contracts under Muslim law are enforceable. British Columbia courts have found that contracts for maher are enforceable. (Nathoo v. Nathoo, [1996] B.C.J. No. 2720 (BCSC); Amlani v. Hirani2000 BCSC 1653, [2000] B.C.J. No. 2357; N.M.M. v. N.S.M., 2004 BCSC 346, [2004] B.C.J. No. 642. ) However, in Ontario, in Kaddoura v. Hammoud, [1998] O.J. No. 5054, Rutherford J. (at paras. 25-26) held that the Court should not determine the rights and obligations of the parties under the maher, as it would lead the Court into the “religious thicket”. Since Kaddooura was decided, the Supreme Court of Canada in Bruker v. Marcovitz, [2007] S.C.J. No. 54, has held that the fact that a dispute has a religious aspect does not make it non-justiciable. Persons can transfer their moral obligations into legally binding ones.

[68] Accordingly, it must be determined whether the marriage contract entered into by the parties is valid and binding under the Family Law Act. The Family Law Act permits parties to enter into a marriage contract in which they can agree upon their respective rights and obligations upon separation with respect to the ownership and division of property and their support obligations and other matters in the settlement of their affairs. There are certain limitations such as a prohibition against interfering with a possessory right of the matrimonial home and determining custody and child support rights. Under s. 55(1), a domestic contract is unenforceable unless made in writing, signed by the parties and witnessed. In addition, there are judicial oversight provisions contained in s. 56 (4) which states:

“s.56 (4) A court may, on application, set aside a domestic contract or a provision in it,

(a) if a party failed to disclose to the other significant assets, or significant debts or other liabilities, existing when the domestic contract was made;

(b) if a party did not understand the nature or consequences of the domestic contract; or

(c) otherwise in accordance with the law of contract.”

[24] In N. M. M. v. N.S. M., 2004 BCSC 346 [N.M.M.], the issue of the enforceability of a Maher was considered:

[29] This court recognized the enforceability of a Maher in  Nathoo v. Nathoo [1996] B.C.J. No. 2720 (S.C.) where Dorgan J., dealing with an identical document, said at para. 23:

Turning to the issues in respect of Maher, I have concluded and indeed the parties agree, the agreement they entered into on the date of their marriage is a marriage agreement pursuant to s.48 of the  Family Relations Act. According to s. 51 of the Act the terms of a marriage agreement between the parties may be varied if the terms are found to be unfair considering the factors in s.51. On the evidence, and applying those factors, I cannot conclude the provisions of this agreement are unfair.

[30] Likewise, in  Amlani v. Hirani 2000 BCSC 1653 (CanLII), [2000] B.C.J. No. 2357 (S.C.) Sinclair Prowse J. held that a Maher in terms identical to those in this case was a marriage agreement as defined by the  Family Relations Act.

[25] In N.M.M. the court upheld the marriage agreement and the payment of the Maher.

Discussion

[26] Courts in British Columbia and Ontario have found that contracts for Maher are enforceable where the evidence established that they met the definition of “marriage agreement” in the applicable family law legislation.

[27] As noted in Nathoo v. Nathoo, [1996] B.C.J. No. 2720 (S.C.) at para. 25:

[25] Our law continues to evolve in a manner which acknowledges cultural diversity. Attempts are made to be respectful of traditions which define various groups who live in a multi-cultural community. Nothing in the evidence before me satisfies me that it would be unfair to uphold the provisions of an agreement entered into by these parties in contemplation of their marriage, which agreement specifically provides that it does not oust the provisions of the applicable law.

[28] Given that the Iranian Marriage Contract in this case was signed in 1994, the provisions of the Family Relations Act,RSBC 1996, c. 128 [FRA] apply to issues involving the enforcement of marriage agreements, per s. 252(2)(a) of the Family Law Act, S.B.C. 2011, c. 25 [FLA].

[29] The FRA, in s. 61(2) defined a “marriage agreement” as

… an agreement entered into by 2 people before or during their marriage to each other to take effect on the date of their marriage or on the execution of the agreement, whichever is later, for

(b) ownership in, or division of, family assets or other property during marriage, or on the making of an order for dissolution of marriage, judicial separation or a declaration of nullity of marriage.

[30] I find that the Marriage Contract should be upheld. It plainly states that “one hundred and fourteen full Bahar Azadi gold coins in the liability to his wife payable on her demand” is the “marriage portion”, and is signed by both parties. The contract is not unfair, and the respondent is entitled to judgment against the claimant for the amount of $49,020 on the account of Maher.

[31] In addition, the respondent seeks a judgment for the court fees and attorney fees as ordered in the case in the amount of IRR 30,430,000. The notice of application of the respondent sought the enforcement of the Marriage Contract but not the Maher judgment. The claimant has not had notice of this and in light of his non-attendance, it is my view it would not be appropriate to consider this issue without notice being provided. The respondent has leave to make a further application for the payment of the court and attorney fees on proper notice being given to the claimant.

In N.M.M. v. N.S.M., 2004 BCSC 346 (CanLII), Forth J. held that the BCSC recognized the enforceability of a Maher in Nathoo v. Nathoo:

[29] This court recognized the enforceability of a Maher in  Nathoo v. Nathoo [1996] B.C.J. No. 2720 (S.C.) where Dorgan J., dealing with an identical document, said at para. 23:

Turning to the issues in respect of Maher, I have concluded and indeed the parties agree, the agreement they entered into on the date of their marriage is a marriage agreement pursuant to s.48 of the  Family Relations Act. According to s. 51 of the Act the terms of a marriage agreement between the parties may be varied if the terms are found to be unfair considering the factors in s.51. On the evidence, and applying those factors, I cannot conclude the provisions of this agreement are unfair.

[30] Likewise, in  Amlani v. Hirani 2000 BCSC 1653 (CanLII), [2000] B.C.J. No. 2357 (S.C.) Sinclair Prowse J. held that a Maher in terms identical to those in this case was a marriage agreement as defined by the  Family Relations Act.

In Sharifpour v Rostami, 2018 BCSC 681 (CanLII), Weatherill J. did not enforce a Mehrieh, a form of reverse dowry. Weatherill J. found that the Iranian marriage contract was essentially a pre-nuptial agreement within the meaning of s.93 of the Family Law Act. The contract for 2,000 gold coins was found to be purely for symbolic reasons.  In addition, even if it were binding, the Court would have set it aside as it could have been significantly unfair to enforce it.

Weatherill J. noted that there have been a number of cases in British Columbia that have dealt with the nature of contracts and Mehriehs similar to the Iranian Marriage Contract. For example, in Delvarani v. Delvarani, where Powers J. commented that documents similar to this have been recognized and enforced in British Columbia where the evidence supports those findings. They have been recognized as valid and binding marriage agreements as contemplated by the Family Relations Act, R.S.B.C. 1996, c. 128:

XIV. Issue # 5 – Is the Claimant bound by the Iranian Marriage Contract?

[351] The respondent relies on the Iranian Marriage Contract that she argues contractually obliges the claimant to pay her 2,000 Iranian Full Bahar Azadi Gold coins (“2000 Gold Coins”). She says those coins are worth in the order of $800,000 today. She says the Iranian Marriage Contact is an obligation on the claimant that is separate from his obligations under the Family Law Act. In the Iranian culture, it is known as a Mehrieh, a form of reverse dowry.

[352] The Iranian Marriage Contract was signed in March 2006, during the first marriage ceremony. The respondent says it was a standard form of “fill-in-the-blanks” marriage agreement that the officiant had in his office and is needed for the couple to be considered married in Iran.

[353] The respondent testified that the intention behind these types of contracts, which are standard in Iranian culture, is to protect her and the Children and provide security in the event of divorce because men have all the power and resources in Iran. Even today, she says, women have no rights in Iran and cannot even show their faces in public. She considers the Iranian Marriage Contract as a business contract that, because they have separated, creates a debt owing to her by the claimant of, she submits, $800,000.

[354] The claimant admits signing the Iranian Marriage Contract but says the reference to the 2000 Gold Coins was simply to symbolize his respect for the respondent. The amount of the Mehrieh depends on how much the man values the woman. It is more of a status symbol and a symbol of respect within the Iranian culture and society. It is, he says, often a matter of competition within Irani families. In 2006 when he signed it, his net worth was only $455,000 so there is no chance he would have committed to such a debt other than as a symbolic gesture to allow their marriage to be recognized in Iran. He says the idea of the Mehrieh is to make it hard for men to consider getting divorced because of the financial penalty it could create in Iran. Protections similar to the Divorce Act and FLA in Canada are often not available to women in Iran.

[355] There have been a number of cases in British Columbia that have dealt with the nature of contracts and Mehriehs similar to the Iranian Marriage Contract. For example, in Delvarani v. Delvarani, 2012 BCSC 162, Powers J. commented at paras. 201-209:

[201] Documents similar to this have been recognized and enforced in British Columbia where the evidence supports those findings. They have been recognized as valid and binding marriage agreements as contemplated by the Family Relations Act, R.S.B.C. 1996, c. 128 [FRA]:

Nathoo v. Nathoo, [1996] B.C.J. No. 2720 (S.C.)

Amlani v. Hirani2000 BCSC 1653

N.M.M. v. N.S.M., 2004 BCSC 346

[202] The Marriage Portion has been interpreted to be in the nature of a reverse dowry or sum of money agreed upon by the parties, which is to be paid by the husband to the wife in the event of a separation. However, the evidence must support that conclusion in each case.

[203 In Amlani, the Court characterized the Mehr amount as a separate property interest that exists independently of the matrimonial or family assets, and crystallizes upon the breakdown of the marriage. In that case, the Court found that Mr. Amlani had agreed and undertook to pay the amount and that Ms. Hirani had confirmed her acceptance of that amount.

[204] In the Amlani case, the document did not state when the money would become payable, but the court accepted oral evidence to determine that it became payable upon the breakdown of the marriage. The Court found this was an implied term in the agreement. In British Columbia as well as other provinces, the courts have tried to be flexible in accommodating the traditions of other countries and cultures where it is feasible to do so: Aziz v. Al-Masri2011 BCSC 985, para. 3, and Nathoo, paras. 24-25.

[205] I note in Nathoo the evidence was that the husband had proposed a $10,000.00 amount. The wife requested $40,000.00 and they agreed upon $20,000.00. The court found there was nothing unfair about enforcing that agreement.

[206] In Amlani, the agreement itself specified that this was an amount to be paid in addition to and without prejudice, or in substitution of any other obligations provided for by the law of the land. The amount was $51,000.00, and the court dismissed the husband’s application for a declaration that it was not enforceable as a marriage agreement under the FRA.

[207] In N.M.M., the amount was $51,250.00. The agreement specified payment upon breakdown of the marriage. The parties separated after 13 years, and the husband asserted that he had not read the document when he signed it and believed it was merely symbolic. However, the court found that he was aware and understood the content of the agreement, the amount stipulated, and had accepted it as a legally binding document.

[208] The amounts in these cases were modest as they were in other cases decided in other jurisdictions, including: Khanis v. Noomohamed2009 CanLII 27829 (ON SC), [2009] O.J. No. 2245 – $20,000.00; Ghaznavi v. Kashif-UI-Haque2011 ONSC 4062 – $25,000.00; Nasin v. Nasini2008 ABQB 219 – $10,000.00.

[209] In this case, I am not satisfied on the balance of probabilities that in fact the parties had any agreement that Mr. Delvarani would pay these 3,000 gold coins to Ms. Javadi. I am not satisfied that this part of the document was completed at the time it was signed by Mr. Delvarani. Mr. Delvarani may have been infatuated with Ms. Javadi at the time of the marriage, but it is difficult to accept he would have committed himself to paying such a large amount of money in addition to any other obligations he might have under the laws of British Columbia.

[356] For similar reasons, I am not satisfied that the Iranian Marriage Contract binds the claimant. In my view, it was essentially a pre-nuptial agreement within the meaning of s. 93 of the FLA.

[357] In the circumstances that exist in this case, I accept the claimant’s evidence that the Iranian Marriage Contract was prepared to allow the couple to enter and exit Iran and be considered a married couple.

[358] I am not satisfied on a balance of probabilities that the claimant would have committed to paying 2000 Gold Coins valued at almost double his then worth to the respondent in addition to any other obligations he might have had under Canadian or provincial law. This is especially the case given what I accept was a tumultuous relationship the parties had from the outset of their relationship and the number of separations they had early on. I am satisfied that the Iranian Marriage Contract was entered into only because the respondent was pregnant with the couples’ first child and they wanted to be able to travel to Iran with their family and be treated as a married couple. The 2000 Gold Coins was an amount placed in the Iranian Marriage Contract purely for symbolic reasons so that the respondent would be considered worthy in the Iranian culture.

[359] Even if the Iranian Marriage Contract was binding, I would set it aside as being significantly unfair. It was made in 2006 when they decided to get married and while the claimant’s Picture Paradise business was doing relatively well. The respondent did not rely on it either during the marriage or after the parties separated. To enforce the Iranian Marriage Agreement on the claimant in the circumstances of this case would be significantly unfair: Hartshorne v. Hartshorne, 2004 SCC 22.

In A.M. v M.S., 2017 BCSC 2061 (CanLII), Steeves J. applied Mohammadi, and held that in light of disagreements between the parties as to the meaning of Iranian law and value of the mehr, if the parties wished a decision as to how it would be treated and its values they would be required to comply with the rules on expert evidence as to the law and value of the mehr:

(d) The mehr and the oral agreement

[120] In broad terms the parties present the separation agreement and divorce order as reflecting their civil marriage, separation and divorce. There is no reference in the separation agreement or the divorce order to the Iranian marriage of the parties. That is appropriate since this court does not have jurisdiction over substantial issues relating to Sharia law.

[121] The parties made an oral agreement in April 2015 with respect to their Iranian divorce. According to the respondent the elements of this oral agreement were that the parties would obtain a Sharia divorce. The respondent also says that the claimant agreed to forgo her mehr, valued by him at $45,100, in exchange for the respondent paying mortgage payments on the Coquitlam property for two years ($2,150 a month; totalling $38,700); transfer of a car to the claimant (valued at $8,127); and payment by the respondent of spousal support at $263 per month. As he stated in his text message of July 28, 2016, in his mind he transferred his one-half interest in the Coquitlam property to the claimant in return for an Iranian divorce and the claimant forgoing her mehr.

[122] As a first comment on the respondent’s account of the oral agreement, the numbers do not add up. He says the claimant gave up her mehr, valued by the respondent at $45,100, for three payments: $38,700 for mortgage payments over two years, $8,127 for the car and spousal support of $263 paid over five years (commencing November 1, 2015). The total amount of these items is $62,607. The respondent does not say that he was being generous and, indeed, except for a short period after separation, he has demonstrated a lack of generosity. The result is that I am unable to give much credence to the respondent’s evidence about the financial aspects of the oral agreement.

[123] For her part, the claimant agrees there was an oral contract and that it was in April 2015. She also agrees that the agreement included a Sharia divorce and the respondent was to pay mortgage payments and spousal support in the amounts and over the time periods as described by the respondent (which he has done). And the claimant agrees that she said she would forgo her mehr. She does not mention the car. She does agree that the oral agreement was to be implemented at the same time as the Coquitlam property was transferred to her.

[124] Overall, setting aside the respondent’s quite unreliable description of the financial aspects of the 2015 oral agreement, it can be said with some confidence that there was an agreement that the parties would divorce, the respondent would pay spousal support and mortgage payments and the claimant would forgo her mehr. The transfer by the respondent of his one-half interest in the Coquitlam property was part of the separation agreement and divorce order but also related to the Iranian divorce in two respects. First, the Iranian divorce and the transfer of the property were to take place at the same time and, second, the claimant forgoing her mehr was part of the consideration for the respondent entering into the separation agreement and divorce order. The evidence does not support a conclusion that the car was part of the oral agreement (there is a transfer of a car on November 1, 2015 included in the March 2016 divorce order).

[125] The transfer of the property never took place because of the respondent’s insistence that he had to approve a mortgage on the property in favour of the claimant (then his insistence that he had to approve any sale) and the Iranian divorce had to take place before the property was transferred. I have found above that he was wrong on both counts.

[126] I next turn to consideration of the mehr in the Iranian marriage deed. The legal issues of a mehr were usefully discussed by Justice Fisher (as she then was) in Mohammadi v. Mohammadi, 2016 BCSC 1873:

Marriage portion (dowry)

[45] The parties’ Iranian marriage certificate includes a “Marriage Portion” which provides as follows:

A volume of Holy Koran, a pane of mirror, a pair of candleholders, which are all submitted to the Wife and she admitted receipt, plus 700 Full Bahar Azadi Gold Coins, being the husband’s liability and payable to the Wife upon her demand. Signed by the two spouses.

[46] The respondent testified that the value of the 700 gold coins referenced in the marriage portion is approximately $276,000. It appears that the dowry is a contract between the husband and the wife. The respondent described it as both a contract between the families and a contract just between the parties. She said that she has never claimed this amount and did not plan to claim it in Iran, but at the same time, she has never given up her right to claim it.

[47] The claimant testified that the marriage portion of the marriage certificate was purely symbolic. He never had the equivalent of 700 gold coins and that number was based on a numeric calculation of the respondent’s name. His understanding is that the dowry is security for housewives in Iran who do not work. In any event, he said that the respondent had agreed not to seek her dowry in Iran and submitted that she should not be able to do so here.

[48] Similar claims to enforce provisions of these kinds of marriage documents have been accepted in British Columbia where the evidence established that they met the definition of “marriage agreement” in the former Family Relations Act, RSBC 1996, c. 128 (repealed): Delvarani v. Delvarani2012 BCSC 162N.M.M. v. N.S.M., 2004 BCSC 346Amlani v. Hirani2000 BCSC 1653. Given that the Iranian marriage certificate in this case was signed in 1999, the provisions of the Family Relations Act apply to issues involving the enforcement of marriage agreements, per s. 252(2)(a) of the Family Law Act.

[49] The Family Relations Act, in s. 61(2) defined a “marriage agreement” as

… an agreement entered into by 2 people before or during their marriage to each other to take effect on the date of their marriage or on the execution of the agreement, whichever is later, for …

(b) ownership in, or division of, family assets or other property during marriage, or on the making of an order for dissolution of marriage, judicial separation or a declaration of nullity of marriage.

[50] In Delvarani, the court reviewed these cases and concluded that the marriage portion of an analogous religious marriage certificate “has been interpreted to be in the nature of a reverse dowry or sum of money agreed upon by the parties, which is to be paid by the husband to the wife in the event of a separation” (at para. 202). However, it was emphasized that the evidence must support that conclusion in each case.

[51] In Amlani, the court was satisfied that it was a term of the marriage contract that the “marriage portion” amount (“maher” or “mehr” in that case) was payable upon dissolution of the marriage. A similar finding was made in N.M.M. In both of these cases, the marriage portion was enforced as a marriage agreement. In Delvarani it was not, as the judge was not satisfied that an agreement had in fact been reached.

[52] Even if the dowry is a valid marriage agreement under the Family Relations Act, it is subject to being set aside if the court determines it to be unfair, a less stringent standard than that under the Family Law Act. In Amlani and N.M.M., the amounts claimed were relatively modest, in the range of $50,000. In this case, the amount claimed is quite substantial, assuming the respondent’s estimated value of $276,000 is accurate.

[127] I pause to note that the respondent makes a short submission that the mehr is a legal contract and it is “bound” by the “previous” Limitation Act, R.S.B.C., c 266. The point is that a six-year limitation period commenced on the day the mehr was “advanced” and has now expired. However, if the respondent is correct then any claim to a mehr in an Iranian marriage of more than six years could not be made. No authority is given for this submission and it must be dismissed.

[128] The parties differ significantly on the meaning of Iranian law and the value of the mehr. There is no evidence that the parties agreed or even discussed the value of the mehr at the time of the oral agreement in April 2015. In fact, it became an issue only after the Coquitlam property was sold and the net proceeds were available. The respondent’s submission assumes throughout that the mehr was always valued at $45,100 but the evidence is that its value was not discussed as part of the 2015 separation agreement or 2016 divorce order.

[129] The respondent relies on an affidavit from Negar Nami Parsa. Mr. Parsa is a lawyer with a Vancouver address who has practiced law in Iran since 2008. He has a Bachelor’s degree in law and a Master’s degree in international law. He deposes that his practice is predominately specialized in corporate and family law, presumably in Iran.

[130] Mr. Parsa explains in his affidavit that a divorce in Iran is based on “the sole acceptance and permission of the husband” and a wife cannot get a divorce without the husband’s permission (except for some specific exceptions such as the husband’s drug addiction). Nonetheless Mr. Parsa also says that there can be a divorce if the husband does not agree, but it can take years. Where the parties agree on a divorce it can take three months.

[131] Mr. Parsa’s affidavit continues that in Iran, where a husband does not have the requisite funds to pay a mehr in a marriage contract, and where the mehr is greater than 110 gold coins or its equivalent, the husband’s assets are taken into account and assessed. If an Iranian court finds that the husband does not have the requisite funds to pay the mehr, the court will order that the husband pay “the least amount as set out in Iranian law, which is 110 gold coins or its equivalent amount.” I note this description is contrary to the submission of the respondent that a mehr is only of symbolic value.

[132] The respondent also relies on his own affidavit. This includes a copy of a Google translation of an Iranian press release about Iranian law. It includes a reference to “coins”, not gold coins. In his affidavit he deposes that he is destitute; his average income over the three-year period 2014 to 2016 is $10,365 and in 2016 his income was $3,990. He has significant debt. His evidence is also that he works 60 hours a week as a realtor and mortgage broker and it is not explained how this large number of hours results in a minimal income. Nor is there an explanation about how the respondent paid mortgage payments of $2,150 for two years, spousal support for five years and he continues to pay child support. As with the respondent’s submission on the value of the items in the November 2015 oral agreement, these numbers also do not add up.

[133] In any event the respondent says in his affidavit that he is entitled to be released from the mehr in the marriage deed by the payment of 110 gold coins. He says each coin has a value of $410 for a total of $45,100 and that is the value of the mehr in this case. Counsel for the respondent also offered his own interpretation of Iranian law based on someone else’s translation but I declined to accept that submission.

[134] The claimant says she has never heard of the description of Iranian law relied on by the respondent. She also questions the date the law relied by the respondent took effect and she says the 110 gold coins are a mandatory payment and the balance owing by the husband is assessed based on the financial circumstances of the husband. With regards to the value of the mehr, the claimant uses an on-line site for a value of a kilogram of 24 carat gold of $54,236 (as of June 12, 2017). Using this figure, according to the claimant, the value of the 5 kilograms referenced in the mehr is $270,000.

[135] There are obvious problems with this evidence. The respondent tenders Mr. Parsa’s affidavit as being from “someone with expertise, but it does not purport to be an expert ‘opinion’ report.” This frankly confusing statement is intended to avoid the requirement to comply with the Supreme Court Family Rules on expert evidence because the affidavit does not comply with the usual requirements of an expert report as described in Rule 13-6, among others. In any case, the affidavit is clearly opinion evidence. With regards to the Google translation of Iranian law, it must be rejected out of hand as quite unreliable hearsay and opinion evidence. An additional problem is that in his affidavit the respondent does not explain the basis of his valuation of Iranian gold coins as being $410 each.

[136] The claimant’s evidence is better but also problematic. The reference to the date of the Iranian law cited by the respondent is a submission of counsel based on her or some other unknown person’s translation of an unknown source. Her calculation of the value of 5 kilograms of 24 carat gold is based on an on-line source and it is not known how reliable that source is.

[137] In summary, I am asked to choose between two valuations of the mehr in this case and the difference between them is $264,900. As well, I have not been given the information necessary to fully or properly assess each valuation. It is not a stretch to say that the decision making process with the evidence here is akin to flipping a coin. In my view it is self-evident that the evidence in this case is unsuitable for the kind of determinations sought by both parties. I decline to make those determinations.

[138] If the parties wish a decision from this court on how a mehr is treated in Iranian law in the case of a divorce and the value of the mehr they will have to make an application to that effect. I acknowledge that the Rules on expert evidence only apply to a “trial.” However, given the wide differences between the parties about the valuation of the mehr and in light of the need for legitimate expert evidence on Iranian law, pursuant to s. 218 of the FLA and my inherent jurisdiction, I direct that any evidence on these issues must comply with the rules on expert evidence: Family Rules, Part 13. Again, the two issues requiring expert evidence are the valuation of a kilogram of gold and Iranian divorce law, in particular the valuation of a mehr as part of a divorce.

[139] A decision on the value of the mehr will be made after the filing of the appropriate application and response, accompanied in each case with the appropriate evidence. I add that an expert and his/her report may be cross-examined under Rule 13-7(3). I also note that Rule 13-3 provides for the appointment of a joint expert.

[140] As to the relationship between the value of the mehr and the one-half interest of the net proceeds of the sale of the Coquitlam property the respondent says he is entitled to, I have concluded above that he is not entitled to that amount. That may also be an issue under Sharia law but that is for the appropriate authority to say. It has no bearing on the release of the remaining proceeds from the sale of the Coquitlam property to the claimant.

Authorities

Mohammadi v. Mohammadi, 2016 BCSC 1873 (CanLII)

El-Jaroudi v El-Mikati, 2020 BCSC 868 (CanLII)

Kariminia v Nasser, 2018 BCSC 695 (CanLII)

N.M.M. v. N.S.M., 2004 BCSC 346 (CanLII)

Amlani v. Hirani, 2000 BCSC 1653 (CanLII)

Sharifpour v Rostami, 2018 BCSC 681 (CanLII)

A.M. v M.S., 2017 BCSC 2061 (CanLII)


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