Kaddoura v. Hammoud, (1998) 83 O.T.C. 30 (GD)

• Jurisdiction: Ontario
• Court: Ontario Court of Justice General Division (Canada)
• Judge: Rutherford, J.
• Citation: (1998), 83 O.T.C. 30 (GD)
• Date: 03 December 1998

Kaddoura v. Hammoud (1998), 83 O.T.C. 30 (GD)

MLB headnote and full text

Temp. Cite: [1998] O.T.C. TBEd. DE.067

Sam Hussein Kaddoura (petitioner) v. Manira Hammoud (respondent)

(Court File No. 53247/96)

Indexed As: Kaddoura v. Hammoud

Ontario Court of Justice

General Division

Rutherford, J.

December 3, 1998.

Summary:

A husband and wife, who were Muslim, separated after 18 months of marriage. Before the parties married, the husband agreed to pay the wife a $35,000 Mahr, which was a gift or contribution made by the husband to be to the wife to be for her exclusive property. The husband paid $5,000 and deferred the remaining $30,000. At their wedding, the husband undertook to pay the $35,000 Mahr and signed the Muslim marriage certificate that referred to the $35,000 Mahr. The husband petitioned for divorce. The wife counter-petitioned, claiming, inter alia, the deferred $30,000 Mahr. The wife asserted that the Muslim marriage certificate was a written marriage contract within s. 52(1) of the Family Law Act. The husband asserted that the Mahr was a religious obligation and should not be an obligation justiciable in the Ontario civil courts.

The Ontario Court (General Division) dismissed the wife's counter-petition and awarded the husband costs of $1,500. The deferred Mahr ought not to be enforced because it should not be adjudicated in the civil courts. The Mahr and the extent to which it obligated a husband to make payment to his wife was essentially and fundamentally an Islamic religious matter. To determine the rights and obligations of the parties regarding the Mahr undertaking in their Islamic marriage ceremony would necessarily lead the court into the "religious thicket", a place that the courts could not safely go. The court stated that if there was no claim for exemplary damages, which was ill conceived and unsuccessful, it would have left parties to bear their own costs. It was somewhat offensive and dishonourable on the husband's part to knowingly participate in the wedding customs and practices of his Muslim community, and then eschew those customs and practices when they worked to his financial detriment.

Courts - Topic 2007

Jurisdiction - General principles - Issues not suitable for judicial determination - Religious doctrine - See paragraphs 1 to 31.

Family Law - Topic 924

Husband and wife - Marital property - Contracts - What constitutes - See paragraphs 1 to 31.

Family Law - Topic 955

Husband and wife - Marital property - Distribution orders - Practice - Costs - See paragraphs 32 to 38.

Family Law - Topic 966

Husband and wife - Actions between husband and wife - Practice - Costs - See paragraphs 32 to 38.

Family Law - Topic 3202

Separation agreements, domestic contracts and marriage contracts - What constitute - See paragraphs 1 to 31.

Practice - Topic 7021

Costs - Party and party costs - Entitlement to party and party costs - Successful party - Exceptions - Conduct - See paragraphs 32 to 38.

Cases Noticed:

Vorvis v. Insurance Corp. of British Columbia, [1989] 1 S.C.R. 1085; 94 N.R. 321; 58 D.L.R.(4th) 193; [1989] 4 W.W.R. 218; 36 B.C.L.R.(2d) 273; 90 C.L.L.C. 14,035; 25 C.C.E.L. 81, refd to. [para. 9].

Hermann v. Charlesworth, [1905] 2 K.B. 123, refd to. [para. 23].

Serbian Eastern Orthodox Diocese, etc. v. Milivojevich, 426 U.S. 696, refd to. [para. 26].

Baxter v. Baxter (1983), 45 O.R.(2d) 348 (H.C.), refd to. [para. 26].

Authors and Works Noticed:

Waddams, The Law of Damages (2nd Ed. 1983), p. 562 [para. 8].

Counsel:

Jon D. Snipper and Heidi N. Rupert, for the petitioner;

M.S. Shaikh, for the respondent.

This matter was heard by Rutherford, J., of the Ontario Court (General Division), who delivered the following decision on December 3, 1998.