Abdollahpour v. Banifatemi, 2015 ONCA 834

• Judge: Gillese, Blair and D. Brown, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: October 20, 2015
• Jurisdiction: Ontario
• Citations: 2015 ONCA 834;(2015), 344 O.A.C. 14 (CA)

Abdollahpour v. Banifatemi (2015), 344 O.A.C. 14 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. DE.006

Ahmad Reza Abdollahpour, Sima Abdollahpour and Hamid Abdollahpour (applicants/appellants) v. Shakiba Sadat Banifatemi (respondent/respondent)

(C59977; 2015 ONCA 834)

Indexed As: Abdollahpour v. Banifatemi

Ontario Court of Appeal

Gillese, Blair and D. Brown, JJ.A.

December 2, 2015.

Summary:

A young Iranian couple separated after a short marriage. The husband sought a divorce and along with his parents sought to have the wife transfer back to the parents a 50% interest in a house which had been transferred to her as a dowry or mahr. The wife moved for summary judgment dismissing the claim, arguing that the transfer of the 50% interest in the property was an irrevocable and unconditional gift.

The Ontario Supreme Court, in a decision with neutral citation 2014 ONSC 7273, granted summary judgment in favour of the wife. The husband and his parents appealed.

The Ontario Court of Appeal dismissed the appeal.

Gifts - Topic 631

Gifts inter vivos - Revocation and avoidance - General - A young Iranian couple separated after a short marriage - The husband's parents sought to have the wife transfer back to them a 50% interest in a house which had been transferred to her as a dowry or mahr by a Deed of Gift - A motions judge granted summary judgment dismissing the parents' claim, holding that this was an irrevocable and unconditional gift - The parents appealed - The Ontario Court of Appeal dismissed the appeal - The motions judge did not err - The Deed of Gift was not subject to conditions - Even if the wife's father had verbally represented to the husband's father that the wife would return the property if she left the marriage, that representation could not bind the wife - In any event, such a verbal representation or promise would be ineffective because of s. 1(1) of the Statute of Frauds - That the property was referred to as part of the bride's dowry and the dowry was part of the marriage contract, and that there might be general Iranian cultural norms and traditions relating to such marriages was not enough - 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 - See paragraphs 13 to 43.

Sale of Land - Topic 1325

The contract - Necessity for writing - General - Statute of Frauds - Circumstances within statute - [See Gifts - Topic 631 ].

Cases Noticed:

McNamee v. McNamee (2011), 280 O.A.C. 372; 106 O.R.(3d) 401; 335 D.L.R.(4th) 704; 2011 ONCA 533, refd to. [para. 14].

Austie v. Aksnowicz (1999), 232 A.R. 118; 195 W.A.C. 118; 1999 ABCA 56, leave to appeal refused (2000), 253 N.R. 197; 255 A.R. 400; 220 W.A.C. 400 (S.C.C.), refd to. [para. 30].

Berdette v. Berdette (1991), 47 O.A.C. 345; 81 D.L.R.(4th) 194 (C.A.), refd to. [para. 36].

Statutes Noticed:

Statute of Frauds, R.S.O. 1990, c. S-19, sect. 1(1) [para. 28].

Counsel:

Evan Moore, for the appellants;

Kevin Kavanagh, for the respondent.

This application was heard on October 20, 2015, before Gillese, Blair and D. Brown, JJ.A., of the Ontario Court of Appeal. The following decision was delivered for the court by Blair, J.A., on December 2, 2015.