In Abdollahpour v. Banifatemi 2014 ONSC 7273 the Ontario Superior Court dealt with a case where in keeping with Iranian tradition, the groom's family gave a pre-marital gift of half ownership in a home valued at approximately $1 million. The wife was an Iranian student studying at Carleton University and the husband was a Canadian studying at Carleton as well when the parties met. Prior to the marriage the parties attended with separate lawyers and a Deed of Gift was drafted and executed transferring the interest in the home. The marriage lasted approximately 1.5 years after which the wife advised the husband that she no longer wished to remain married to him. She advised that she could no longer live in the same house as his mother. As a result she left the marriage and the divorce proceedings commenced. The Husband and his family brought an application to have pre-marital gift (interest in the house) returned. The Husband's position was that :
- The Wife did not intend to have a real marriage and used the Husband to gain permanent residency in Canada;
- The gift was contingent upon her remaining married to the Husband; and
- The Wife's father verbally promised that if she left the marriage, that the interest in the home would be returned.
The relief the Husband sought was to have the interest in the home transferred back to his parents, the Wife reimburse the full cost of the marriage and she return all of the wedding gifts she received.
The Wife's position was that the transfer of interest was unconditional. The Court agreed.
In rendering the decision, Justice Smith held that once a valid gift has been made, it cannot simply be retracted unless some cogent evidence is shown that the party giving the gift has retained an expressed right of revocation. Furthermore, Justice Wilson opined that: (1) the intentions of the parties were clearly stated in the Deed of Gift that was prepared; (2) the Deed of Gift had no mention of conditions; (3) the parties had the benefit of legal counsel, who, if were advised of any conditions would have reduced those to writing. Lastly, none of the positions advanced by the Husband or his family were supported by documents or other cogent evidence.
With respect to the role of the father, the court held that any alleged promises made by a family member does not effect the validity of the property transfer. The father is not party to the proceedings, furthermore, Justice Smith held that the Wife was over the age of the majority and has the power to contract and make decisions on her own.
While this case dealt with dowry, courts have also looked at the issue of gold jewelry changing hands during the course of a marriage - another eastern practice that has made its way to the western world. in Chera v. Chera the British Columbia Court of Appeal dealt with a case where one of the issues in dispute was gold that was gifted before the marriage. The Court held that: (1) the gift was prior to the marriage; (2) the gift was made expressly to the wife by a third party; (3) no evidence was advanced that the gift of gold was for a family purpose (savings, investment etc); (4) no evidence that it was customary that the gold was to be returned upon breakdown of the marriage; and (5) it was an "unconditional gift."