Dec 24, 2017

Family Law: Judge refuses to grant Dowry for lack of proper expert evidence - here we go again...

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

Dowry, Mehrieh or Mahr

If there is one concept in BC Family Law which has remained confusing with consistently conflicting results through our Canadian courts, that is Dowry also known as Mehrieh or Mahr. Dowry or Mahr has been identified in our Canadian courts as an Islamic marriage contract or a gift which is almost always entered into just prior or at the time of a couple’s marriage.

There are hundreds of thousands, if not millions of immigrants from Middle Eastern Countries who make their home in Canada. Many of these immigrants were married in their home countries and followed marriage traditions and laws which make very little sense to our courts and our British Columbia family law. At the same time, our courts are often asked to deal with these concepts and apply them to Canadian divorces with very little guidance.

The interplay between an Islamic marriage contract and the Canadian family law is not well understood by our courts, and sometimes applying both at the same time and to the same couple results in unjustified and unfair outcomes in Canadian and British Columbia divorces. For this reason, Vancouver divorce lawyers should be familiar with the dowry concept and the measures to take to either apply it or oppose it.

The Intention Behind Dowry

In the case of A.M. v. M.S., the judge was faced with defining what Dowry is, how it applies to our courts and how to value it. Dowry usually comes in the form of gold coins or kilos of gold. Prior to a couple’s marriage, either the couple or their families negotiate the amount of dowry. The agreed upon amount is merely a promise which the husband gives to the wife. The wife in turn has liberty to seek her dowry at any point during the marriage or after separation. Almost always the wife does not seek her dowry during the marriage because…well why would you sue your husband during your marriage. Dowry is almost always sought after separation.

Dowry is a financial promise which is intended to provide security for the wife once the couple divorce. The amount of dowry is to cover property division and spousal support. When the amount of dowry is negotiated, couples often do not consider their financial circumstances and the ability of the husband to pay the wife the sum of money he promises to pay. Prior to separation, dowry is nothing but a symbolic gesture: the higher the amount, the higher the promise of the husband to stay married to wife because clearly he needs to be super sure of the marriage to avoid having to pay an exorbitant amount of money at the time of separation. For this reason, most times the couples at the time of marriage agree to an exponentially high amount of dowry because neither thinks they would ever end up in a divorce. When they do however, the money becomes payable immediately and so will financial problems.

How Dowry is Treated by the Middle Eastern Courts

When the money becomes payable immediately, in most situations the husband cannot pay it. The wife can then ask the courts in the middle eastern countries to hold the husband in ‘contempt’ for not paying. Previously, the courts would just jail the husband until somehow he came up with the money or borrowed from someone.

Recently and to the best of my knowledge, the Iranian courts have shifted their treatment of dowry: at the time of divorce if the husband is not able to pay, they will consider the husband’s financial situation and order him to pay a minimum quantity of gold coins equivalent to 110 gold coins or approximately $50,000. The also ask the husband to pay this amount in installments – i.e. one coin per month. Currently each coin is worth approximately $400. This type of treatment will ensure the husband avoids jail time. If however at the time of divorce the husband has the ability to pay the initially agreed upon amount, the courts will enforce dowry.

So what happens when the couple come to Canada and then decide to divorce?

Treatment of Dowry by the Canadian Courts

Our British Columbia courts have interpreted dowry as a marriage agreement. But what they sometimes do is that they give 50% of the family property and spousal support according to BC laws, and then go further and on top of everything else, enforce dowry as well. This results in a situation where the wife obtains more than 50% of the family property – something that requires getting over the significant unfairness test under the Family Law Act.

From what I understand, no BC court has granted dowry in any amount since the Family Law Act came to in existence. Some courts did grant dowry under the former Family Relations Act by applying the fair/unfair test, but the amount of dowry in those cases was very modest and not substantial (i.e. approximately $50,000). In cases where the amount of dowry was high, it was not enforced or granted for various reasons as explained below.

Enforcement of dowry in any amount through the BC courts also has numerous challenges because at the time of marriage, the couple who entered in to the dowry contract:

1. Often did not have any independent legal advice;

2. Their families negotiated the dowry (often the fathers) and the couple were not involved;

3. The dowry document was signed by the families and not the couple;

4. The dowry was negotiated in an hour, a day or at most a few days prior to the wedding;

5. The amount of dowry was something the husband often never had at the time of entering in to the contract;

6. The amount of dowry is something the husband does not have at the time of separation;

7. The amount of dowry, if enforced, may result in significantly unfair financial situation for the couple, etc.

Expert Evidence Needed to Enforce Dowry

Even if one passes the test for applying dowry or marriage contract in a BC divorce case, the exact amount of it must be known. Perhaps most importantly, the judge also needs to know what the middle eastern courts would likely do given the financial circumstances of the husband and the amount of dowry he agreed to. This is where things get tricky: are we asking the expert to take the place of a judge and tell the Canadian judge what she/he should do and how much to grant based on the middle eastern court’s treatment?

In A.M. v. M.S., the judge did not have any expert evidence on what the exact amount of dowry was: the husband argued that given his financial situation and despite agreeing to pay 400 gold coins, the Iranian courts would not ask him to pay more than 110 coins, and the wife argued that they would grant the full 400 coins.

The judge did not rule on the dowry issue and directed the parties to produce proper expert evidence as per the Rules of the Court which would identify Canadian equivalent worth of the wife’s dowry before he could apply the Sharia law and make a determination as to whether it could be enforced under the Canadian law.

Conclusion

Family lawyers who are representing clients seeking dowry should consider lowering the amount of dowry requested to have a realistic chance of having a BC judge enforce same. The concept of dowry, its worth and enforcement is also something that requires a proper expert report and an expert who can make him/herself available for cross examination.