



COURT OF APPEAL FOR ONTARIO

CITATION: Abdollahpour v. Banifatemi, 2015
    ONCA 834

DATE: 20151202

DOCKET: C59977

Gillese, Blair and Brown JJ.A.

BETWEEN

Ahmad
    Reza Abdollahpour, Sima Abdollahpour

and
    Hamid Abdollahpour

Applicants

(Appellants)

and

Shakiba Sadat Banifatemi

Respondent

(Respondent)

Evan Moore, for the appellants

Kevin Kavanagh, for the respondent

Heard: October 20, 2015

On appeal from the judgment of Justice Robert J. Smith of
    the Superior Court of Justice, dated December 31, 2014, with reasons reported
    at 2014 ONSC 7273, 59 R.F.L. (7th) 40.

R.A. Blair J.A.:

Background

[1]

On March 25, 2012, a young Iranian couple, Ahmad Reza Abdollahpour
    (Reza) and Shakiba Sadat Banifatemi, were married in Ottawa. They separated
    in December 2013, when Shakiba moved out of the marriage and out of the home
    where they had been living with Rezas parents.

[2]

It is the custom in Iranian culture and tradition for the groom or the
    grooms family to provide a dowry or
mahr
to the bride on the occasion
    of the wedding. In this case, Rezas parents, the appellants Sima and Hamid
    Abdollahpour, transferred to Shakiba a 50% interest in a house they owned at 4
    Leona Avenue in Ottawa by way of a Deed of Gift.

[3]

Following the breakdown of the marriage, Reza commenced divorce
    proceedings. Along with Sima and Hamid, he also sought to have the 50% interest
    in the property transferred back to them.

[4]

The appellants principal argument was, and is, that the transfer was
    made as part of the dowry or
mahr
and  according to Iranian culture
    and tradition  was therefore subject to a condition that Shakiba not leave the
    marriage and that, if she did, the property would be transferred back to the donors.
    They also argued that Shakibas father had promised Rezas father that the
    property would be returned if Shakiba left the marriage, that Shakiba had
    entered the marriage with the fraudulent intent to obtain a 50% interest in the
    property and in order to be sponsored as a permanent resident in Canada, and
    that Sima and Hamid had signed the Deed of Gift under duress or as a result of
    undue influence. In addition, Sima and Hamid sought repayment of the costs of
    the wedding and the return of all wedding gifts.

[5]

Shakiba brought a motion for summary judgment dismissing the claims on
    the ground that the transfer of the 50% interest in the property was an
    irrevocable and unconditional gift. She denied the other allegations.

[6]

In thorough and careful reasons delivered on December 31, 2014, Justice
    Robert J. Smith granted summary judgment in favour of Shakiba.

[7]

Reza, Sima and Hamid appeal from the judgment only as it relates to the
    property interest. On appeal, they seek to introduce fresh evidence in the form
    of a translated copy of the marriage contract, in which the 50% interest in the
    property is listed as part of the dowry, and an expert report from an Islamic
    scholar confirming that, in certain circumstances, a dowry (or
mahr
,
    as it is called in the Islamic tradition) is to be returned by the wife upon
    the breakdown of the marriage and opining on what he believes was the intention
    of the parties at the time of the transfer.

[8]

I agree with the motion judge, and would dismiss the appeal for the
    following reasons.

Discussion and Analysis

Fresh Evidence

[9]

I do not need to decide whether the proposed fresh evidence meets the
    necessary requirements for admission on appeal  although I am inclined to the
    view that it does not  because even if admitted, it would not affect the
    outcome of the appeal, in my view.

[10]

The
    issue is not whether Iranian culture or tradition features the characteristics
    explained by the expert, but whether the parties agreed to the transfer being
    subject to the conditions imposed by that culture or tradition. An expert
    cannot give an opinion as to what the parties intentions were  the very issue
    the motion judge had to decide  which is what the proposed expert purported to
    do here.

The Judges Role on the Summary Judgment Motion

[11]

At the time the summary judgment motion was heard, the
Family
    Law Rules
, O. Reg. 114/99 respecting summary judgment had not yet been
    amended to conform to r. 20 of the
Rules of Civil Procedure
, R.R.O.
    1990, Reg. 194. It was unclear whether the motion judge had the expanded powers
    to weigh evidence, evaluate credibility and draw reasonable inferences from the
    evidence that characterize r. 20.04(2.1). The motion judge therefore conducted
    his analysis both on the basis of r. 16(6) of the
Family Law Rules
(which
    requires only that the court determine whether there is a genuine issue
    requiring a trial of a claim or defence) and on the basis of the provisions in
    r. 20.04. He concluded that, on either analysis, there was no genuine issue
    requiring a trial with regard to whether the transfer constituted an
    irrevocable and unconditional gift.

[12]

The
Family Law Rules
have since been amended to
    conform with r. 20.04(2.1), and the appellants now accept, for the purposes of
    the motion and this appeal, that the motion judge and this Court are entitled
    to view the matter from the perspective of the type of expanded powers that are
    provided for under r. 20.04(2.1).

Was the Deed of Gift Conditional or Unconditional?

[13]

I
    see no error in the motion judges finding that the transfer of the 50%
    interest in the property to Shakiba was an irrevocable, unconditional gift and
    that no genuine issue requiring a trial was raised on the record with respect
    to that issue.

[14]

It
    is accepted that the motion judge applied the proper test for the determination
    of a gift: an intention on the part of the donor to make a gift without
    consideration or expectation of remuneration; an acceptance of the gift by the
    donee; and a sufficient act of delivery or transfer of the property to complete
    the transaction. See
McNamee v. McNamee
, 2011 ONCA 533,
335 D.L.R. (4th) 704
.

[15]

The
    appellants do not contest that the second and third criterion were satisfied in
    the circumstances of this case. They submit, however, that the motion judge
    erred in finding that Sima and Hamids intention was to make an unconditional
    gift of the property to Shakiba. Instead, they argue, the intention was to
    provide a dowry or
mahr
to Shakiba  something that is distinct from
    an irrevocable gift in Iranian culture and that was subject to the condition
    that the property would be returned to the donors if Shakiba divorced Reza or
    left the marriage.

[16]

I
    do not accept this submission.

[17]

Taking
    a hard look at the record, as he did, it was open to the motion judge to
    conclude that the terms of the Deed of Gift itself, as well as the evidence of
    the negotiations leading up to its execution  including the exchanges between
    the lawyers, the evolution of the substance of the document, and the draft
    documentation preceding the final Deed of Gift  all confirmed the intention
    that the transfer was irrevocable and unconditional.  In my view, the motion judge
    did not misapprehend the evidence or make incorrect findings of fact that
    materially affected his conclusions in this regard.

[18]

The
    parties each received independent legal advice during the negotiations. Ms.
    Makooli represented Sima and Hamid. Shakibas brother, Shahab, was the
    negotiator for the brides family and he was represented by Mr. Kavanagh.

[19]

The
    original proposal was that a one-third interest in the property would be
    transferred by Sima and Hamid in trust for Reza and Shakiba jointly. A draft trust
    declaration and agreement reflecting this was prepared by Ms. Makooli. It said
    nothing about the trust being revocable on the failure to comply with any
    conditions regarding the marriage.

[20]

In
    a subsequent exchange of emails between the lawyers, Mr. Kavanagh insisted that
    the gift be irrevocable and in an email dated February 28, 2012, Ms. Makooli
    confirmed that ultimately, this is a wedding
gift
to both kids
    (emphasis added). On March 1, 2012, Ms. Makooli sent a revised Deed of Gift
    providing that Sima and Hamid wished to convey an undivided one-third interest
    in the property to Reza and Shakiba jointly
and irrevocably
.

[21]

Shakibas
    father rejected the offer of a one-third interest. He sought a 50% interest for
    Shakiba, and the parties ultimately agreed to this proposal. Mr. Kavanagh took
    the second draft deed prepared by Ms. Makooli and amended it to remove Rezas
    name as a transferee  Sima and Hamid had decided they did not want a 50%
    interest to be transferred to Reza  and to provide that a 50% interest in the
    property be gifted to Shakiba.  A copy of this amended draft was sent to Sima
    on March 12, 2012.

[22]

On
    March 19, 2012, Shakiba met with Sima and Hamid at the offices of a lawyer, Mr.
    Nadon, to sign the necessary documents for the transfer. Included in that
    documentation was an Acknowledgement that [t]he effect of the Documents
    [including the Transfer document] ha[d] been
fully explained
to
    [them] (emphasis added) and a Direction to engross the deed or transfer to
    Shakiba as Tenant in Common part 50% interest. The Deed of Gift itself stated
    that the Grantors wish to convey to the Grantee,
irrevocably
, a fifty
    per cent (50%) title interest in the said lands (emphasis added). Nowhere in
    the exchanges between the lawyers leading up to the transfer, nor in any of the
    documents prepared to complete it, is there mention of any conditions attaching
    to the transfer, other than perhaps the marriage itself.

[23]

After
    a discussion between the families on March 23, 2012, in which Shakibas father
     who was then in Canada  insisted that the Deed of Gift be registered or the
    marriage would not proceed, Sima instructed Mr. Nadon to register the Deed,
    which was done on March 23, 2012.

[24]

Summarizing
    this evidence, the motion judge found that the Deed of Gift was not subject to
    the conditions that Shakiba would not leave the marriage and would continue to
    reside in the property as a matrimonial home for the following reasons:

(a) the intentions of the parties were clearly stated in the
    Deed of Gift, which was prepared to clarify and remove any uncertainty about
    the gift, in addition to registering the transfer of a 50% interest in the
    property to Shakiba;

(b) the parties reduced the terms of the gift to writing in the
    Deed of Gift document, which did not mention any conditions;

(c) none of the written documents prepared by the lawyers
    acting for the parties to complete the gift mentioned that any such conditions
    applied to the gift; and

(d) the husbands parents signed the documents confirming the
    gift with the benefit of independent legal advice.

[25]

These
    findings were entirely open to the motion judge on the record. Apart from the
    statement of Hamid that Shakibas father had promised that the property would
    be returned to Sima and Hamid if Shakiba left the marriage  which the motion
    judge later analysed and to which I will return in a moment  and apart from
    Sima and Hamids own self-serving, after-the-fact testimony, there is no
    evidence respecting any such term or condition in the transfer.

The Stated Representation

[26]

The
    motion judge found, on the basis of the evidence he reviewed, that it was
    unlikely Shakibas father had represented to Rezas father that Shakiba would
    return the interest in the property if she left the marriage. For the purposes
    of his analysis, however, he proceeded on the basis that there was such a
    verbal representation.

[27]

He
    concluded that even if the statement had been made, it did not affect the
    result for two reasons. First, Shakibas father was not a party to the
    transaction (or to the proceedings) and such a representation could not bind
    Shakiba, who is an adult in control of her own decisions and who, on the
    evidence, had not been told of the representation, much less agreed to be bound
    by it. I agree. Secondly, the motion judge concluded that a verbal
    representation or promise to transfer Shakibas interest in the land back to
    Rezas parents would be ineffective in any event because of the provisions of
    ss. 1(1) and 4 of the
Statute of Frauds
, R.S.O. 1990, c. S.19. I do
    not need to deal with the motion judges treatment of s. 4 because I agree with
    his conclusion that s. 1(1) is an effective bar to the appellants argument.

The
Statute of Frauds

[28]

Sections
    1(1) of the
Statute of Frauds
states:

Every estate or interest of freehold and every uncertain
    interest  in  lands  shall be made or created by a writing signed by the
    parties making or creating the same, or their agents thereunto lawfully
    authorized in writing,
and, if not so made or created, has the force and
    effect of an estate at will only
, and shall not be deemed or taken to have
    any other or greater force or effect. [Emphasis added.]

[29]

In
    the face of this provision, the motion judge was correct to hold that a verbal
    representation that Shakiba would re-convey her interest in the property if she
    left the marriage could create nothing more than an estate at will and could
    therefore be terminated at the discretion of Shakibas father (or, presumably,
    of Shakiba).

[30]

Moreover,
    one of the purposes of the writing requirement in s. 1(1) of the
Statute of
    Frauds
is to avoid the very kind of difficulty that has arisen here. As
    the Alberta Court of Appeal observed in
Austie v. Aksnowicz
,
1999 ABCA 56,
[1999] 10 W.W.R. 713, at para. 52, leave to
    appeal refused, [1999] S.C.C.A. No. 172, the whole point of the Statute of
    Frauds is to provide written corroboration of a disputed oral deal.

[31]

Accepting
    for the purposes of this discussion that the marriage contract is admitted as
    fresh evidence, the dowry provision in it states:

Dowry:
One volume of Holy Quran, one rock candy, one
    mirror and two chandeliers, one white rose, and
three parts [out of six
    parts] of a residential house at: 4 Leona Ave., Ottawa, Ontario
. [Emphasis
    added.]

[32]

The
    dowry provision does not disclose, either expressly or by necessary
    implication, what the appellants seek to establish as the additional essential
    term of the transfer by Deed of Gift  namely, the term or condition calling
    for re-conveyance of the property in certain circumstances. That the property
    is referred to as part of the brides dowry and the dowry is part of the
    marriage contract, and that there may be general Iranian cultural norms and
    traditions relating to such marriages, is not enough, in my opinion.

[33]

Even
    if a marriage is entered into in the context of the cultural norms and
    traditions of a couple and their families, the details of how those cultural
    norms and traditions are to apply will inevitably vary from marriage to
    marriage, thus rendering the terms of the conveyance in question difficult to
    ascertain in myriad individual cases. It would be inconsistent with the purpose
    of the
Statute of Frauds
and with the valid public policy need for
    certainty in real property transactions to imply a term or condition into the
    Deed of Gift based on a general cultural norm or tradition and the mere
    reference to the property in question under the heading dowry in the marriage
    contract.

[34]

A
    wide variety of cultures, and their norms and traditions, form an integral part
    of the Canadian mosaic. They cannot simply be imported into a transaction
    involving the transfer of real property by reference to a concept such as
    dowry, which forms a part of a particular culture or tradition. If families
    of the bride and groom in circumstances such as these wish to incorporate such
    a concept into the transfer of property to the bride as part of her dowry, it
    is easy enough for them to say with clarity in the Deed of Gift expressly what
    it is that they intend with respect to the terms of the transfer. The parties
    did not do so in this case.

[35]

If
    ambiguous references were enough to incorporate cultural practices and
    traditions into a real property transaction, as the appellants seek to do here,
    there would be a danger of underlying expectations and motivations arising from
    the cultural context easily becoming conflated with intention. It is the
    parties intention and their actual agreement that must be ascertained. Was the
    transaction a gift and, if so, what were the terms and conditions, if any,
    attached to that gift?

[36]

Finally,
    even if the appellant parents had an underlying motivation for the transfer and
    some unarticulated expectation in relation to it, arising out of their
    Iranian culture and tradition, a valid gift, once made, cannot be revoked or
    retracted and the failure of a donee to fulfill a donors expectations does not
    vitiate a valid gift: see
Berdette v. Berdette
(1991),
81 D.L.R. (4th) 194

(Ont. C.A.), at
    pp. 200-201, leave to appeal refused, [1991] S.C.C.A. No. 306. The Court also
    observed in the
Berdette
case, at p. 199, that it is not the task of
    the court  to correct a possible mistake of judgment on the appellants part,
    but to ascertain the appellants intention at the time of the transactions with
    which we are concerned. That is what the motion judge did here and I agree
    with his analysis.

Undue Influence and Fraud

[37]

The
    motion judge also rejected the appellants argument that the Deed of Gift
    should be set aside on the basis that it had been obtained by way of undue
    influence or fraud.

[38]

In
    oral argument, counsel advised that the appellants no longer seek to rely on
    their position below  rejected by the motion judge  that Shakiba entered into
    the marriage with the fraudulent intention of obtaining a 50% interest in the
    property and as a marriage of convenience in order to obtain permanent
    residency status in Canada. They continue to argue that she obtained the 50%
    interest in the property through the fraudulent intent or undue influence of
    her family, however. To establish undue influence, they rely on the fact that
    Shakibas father advised Rezas parents a few days before the wedding that, if
    the Deed of Gift was not registered, the wedding would not go ahead. During
    oral argument, the submission was made that the alleged false representation
    attributed to Shakibas father (that the property interest would be re-conveyed
    if Shakiba left the marriage) in some way played into the undue influence claim
    as well.

[39]

The
    motion judge rejected the submission that Sima and Hamid had signed the Deed of
    Gift under duress or as a result of undue influence exercised on them by
    Shakiba and her family. There was ample evidence to support this conclusion.

[40]

The
    draft Deed of Gift  clearly indicating that the gift was to be irrevocable and
    containing no indication that it was subject to any terms or conditions  was
    sent to Sima approximately two weeks before the wedding. Both Sima and Hamid
    are sophisticated business people: Sima is a real estate developer and Hamid
    operates a jewellery business in Ottawa. As previously discussed, they had
    legal representation when they were negotiating the terms of the transfer, and
    they both attended at the offices of an independent solicitor, Mr. Nadon, where
    they signed the Deed of Gift and an Acknowledgement stating that they were
    fully advised of the effect of the transfer.

[41]

While
    it is not contested that Shakibas father advised Sima and Hamid that the
    wedding would not go ahead if the Deed of Gift was not registered, that stance
    alone is insufficient to amount to duress or undue influence in the
    circumstances. Nobody complained about it at the time. Sima and Hamid went
    ahead with the registration of the Deed of Gift as outlined above. To amount to
    duress or undue influence, the impugned conduct must result in such a coercion
    of will or pressure on the recipient that he or she has no realistic
    alternative but to submit to it: see
Berdette
, at p. 201. That was not
    the case here.

[42]

Returning
    to the allegedly false representation made by Shakibas father, there is simply
    no evidence in the record that would justify a finding that  assuming the
    representation was made at all  it was made with the fraudulent intent
    necessary to vitiate the transaction. Nor is there any evidence to support the
    suggestion that Sima and Hamid were so coerced or that the representation
    created such pressure that they had no realistic alternative but to agree to
    the Deed of Gift.

[43]

The
    motion judge properly rejected the undue influence argument. I agree and reject
    the appellants submissions on fraudulent intent as well.

Disposition

[44]

For
    all of the foregoing reasons, I would dismiss the appeal.

[45]

Shakiba
    is entitled to her costs of the appeal, fixed in the amount of $9,559.60, all
    inclusive.

Released: December 2, 2015

R.A. Blair J.A.

I agree E.E. Gillese
    J.A.

I agree David Brown
    J.A.


