“These cases treat Mahers like any other contract… The outcome of each case depends, just as in any other case of contractual interpretation, on the objective intentions of the parties as ascertained through the particular wording of the Maher when read as a whole and considered in light of its factual matrix. As such, evidence about the religious and/or cultural significance of the Maher to the parties could conceivably be relevant to the factual matrix in determining their objective contractual intentions. In the final analysis, however, the court’s role is confined to enforcing only those undertakings that fulfil the requirements of a civil domestic contract under provincial legislation.”[1]
The Ontario Court of Appeal in Bakhshi v. Hosseinzadeh[2] has described the Maher (also spelled Mahr, Mohr and Mehr) as an Islamic marriage contract. While some cases have inaccurately called it a “religious” agreement or a dowry, the Maher is “a formal requirement of all Muslim marriages…in which an agreement is entered into prior to marriage concerning a sum of money that a groom promises to pay his bride in the event of a marriage breakdown or death.”[3] As a result, Canadian courts have considered the proper treatment of the Maher. In doing so, certain basic principles and considerations have come to light through the developing case law on this issue.
First, courts are likely to enforce the Maher under Ontario law if it satisfies the elements of a valid civil contract. In the case of Akkawi v Habli,[4] the judge found the Maher to be a valid contract, which was enforceable in Ontario. In making this finding, he noted: “the agreement was in writing, signed by both parties, witnessed and entailed clear obligations. I find that both parties believed the contract to be binding and at no time did either party testify that they did not understand the terms of the agreement or that they misunderstood when the obligation crystallized. Both parties testified that they relied on the marriage contract as it was a pre-condition before entering into their marriage.”[5]
Second, given that each contract has its own terms, the courts will consider “the objective intentions of the parties through the particular wording of the Maher when read as a whole and considered in light of its factual matrix.”[6] Like all family law cases and cases involving contractual interpretation, each case will turn on its own facts with a consideration of the form, content and context of the agreement.
Third, the payment owing under the Maher will be part of the calculation of the parties’ net family property unless there is an express agreement by the parties in the Maher stating otherwise. As such, the courts will consider whether the Maher has an explicit term where the parties have agreed to exclude the payment owing from the net family property calculation. In the case of Khanis v Noormohamed,[7] the payment owing under the Maher was excluded from net family property precisely because the parties agreed that the payment of the agreed sum of money by way of Maher “shall be in addition and without prejudice to and not in substitution of all [of the husband’s] obligations provided for by the laws of the land.”[8]
Fourth, “absent any evidence of an objective intention at the time of the contract to treat the Maher differently, the payment is treated under the Family Law Act like any other payment obligation owing between spouses.”[9] To that end, the payment owing under the Maher has been described as “a demand obligation that is a debt for the husband on the date of separation, an asset for the wife on the date of separation; [with] the wife [being] entitled to collect the debt owed to her.”[10]
As a result, whether the Maher will be found to be a valid and enforceable contract will turn on the facts and merits of each case. Like any case involving contractual interpretation, the courts will consider the form, content and context of the contract in deciding whether it should be upheld and enforced.
[1] Bakhshi v Hosseinzadeh, 2017 ONCA 838 at para 22.
[2] Ibid.
[3] For a full discussion and emphasis on how “marriage in Islam…is a civil contract” see Fareen L. Jamal, “Enforcing Mahr in the Canadian Courts” in Law Society of Upper Canada, Six-Minute Family Law Lawyer, 2015.
[4] Akkawi v Habli, 2017 ONSC 6124 (“Akkawi”).
[5] Ibid at para 228.
[6] Ibid at para 225.
[7] Khanis v Noormohamed, 2009 CanLII 27829 (ON SC).
[8] Ibid at para 74 [emphasis added].
[9] Akkawi, supra note 4 at para 225.
[10] Ibid.
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