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An Ontario court recently considered a case that dealt with an interesting question: when might a marriage contract be void (i.e., not enforceable) for uncertainty?

What happened?

The parties, who were both Muslim, met online. In 2013, the wife travelled from Canada to Iran to marry the husband. The parties signed a marriage certificate in a Nikah ceremony that was held in Iran. The marriage certificate was written in English and Farsi, and included a Maher (a pre-nuptial agreement specifying what things the husband would give to his wife).

Among other things, the marriage certificate indicated the “deferred marriage portion” (i.e., what the husband would pay the wife in the event of a marriage breakdown or death) included “a piece of land / 150 square metres in Canada, 14 gold coins, and travel to Makka.”

In 2015, the husband arrived in Canada and became a permanent resident. In 2016, the parties separated.

The Wife’s Motion to Enforce the Marriage Contract

The wife brought a motion pursuant to Rule 16(6) of the Family Law Rules to enforce the parties’ marriage contract. In particular, the wife sought an order requiring the husband to pay her $60,000 pursuant to the marriage contract.

A marriage contract is considered to be a “domestic contract” under s. 51 of the Family Law Act (FLA).

Section 56(4)(c) of the FLA provides that a court may set aside a domestic contract, or any provision in it, in accordance with the law of contract.

In the past, the Ontario Court of Appeal has found that:

For a contract to exist, there must be a meeting of minds, commonly referred to as consensus ad idem. The test as to whether there has been a meeting of the minds is an objective one – would an objective, reasonable bystander conclude that, in all the circumstances, the parties intended to contract? As intention alone is insufficient to create an enforceable agreement, it is necessary that the essential terms of the agreement are also sufficiently certain. … [Emphasis added]

Furthermore, the Supreme Court of Canada determined that, in order to ascertain the intent of the parties and the scope of their understanding, the decision-maker must read the contract as a whole, giving the words used their ordinary and grammatical meaning, consistent with the surrounding circumstances known to the parties at the time of formation of the contract.

The Court’s Decision

The court determined that it was able to make a “fair and just” determination of the merits of the motion for summary judgment, exercising the powers afforded to it under Rule 16 of the Family Law Rules. After careful review of the affidavit evidence filed by both parties, the court found that their marriage contract was partially enforceable and ordered the husband to pay the wife the sum of $15,846.

There was no dispute that a marriage contract that provides for a Maher is enforceable in Ontario, as the Ontario Court of Appeal has held that “[p]ersons can transfer their moral obligations into legal binding ones.”

There was also no dispute that the marriage contract, including the Maher provisions, constituted a marriage contract that was made in writing, signed by the parties and witnessed.

Furthermore, the court determined that the marriage contract was not altered after it was signed and witnessed. As a result, the court found that the marriage contract provided that the husband promised to give the wife 150 square metres of land in Canada, 14 gold coins and a trip to the Hajj.

However, the husband’s promise to deliver 150 square metres of land in Canada to the wife was void for uncertainty. Specifically, the promise to give the wife “150 square metres of land in Canada” was uncertain, even if it meant “150 square metres of land in Toronto”, as it failed to identify what particular property was to be given by the husband to the wife. An address for the property to be transferred would have sufficed and could have resulted in this promise being enforced by specific performance.

The court also agreed with the husband’s submission that the reference to “gold coin” in the marriage contract meant an Iranian gold coin (which had the value of approximately $329 per coin) because the marriage contract was entered into in Iran. As a result, the value of “14 gold coins” under the marriage contract was $4,606.

Finally, the husband admitted that he told the wife that he would pay for her Hajj pilgrimage, and did not submit that this promise was too uncertain to be enforced. Given that the average price for a Hajj pilgrimage travel package was $11,240, this was the value attributed to the reference of “travel to Makka” as provided by the marriage contract.

Lessons Learned

Drafting a marriage contract is a challenging process and requires many special considerations. It is best to get an experienced family law lawyer to draft your marriage contract so that you can ensure it will be enforceable in the event of a separation. At Gelman & Associates, we can help you draft a marriage contract, or review and enforce pre-existing agreements. Contact us today to learn how a marriage contract drawn up by experienced family law lawyers can help protect your rights and assets upon separation. Call us at (416) 736-0200 or 1-844-736-0200 or contact us online for a confidential initial consultation.


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