Abdollahpour v. Banifatemi, 2015 ONCA 834
Ahmad Reza Abdollahpour, Sima Abdollahpour and Hamid Abdollahpour
Shakiba Sadat Banifatemi
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.:
 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 Reza’s parents.
 It is the custom in Iranian culture and tradition for the groom or the groom’s family to provide a dowry or mahr to the bride on the occasion of the wedding. In this case, Reza’s 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.
 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.
 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 Shakiba’s father had promised Reza’s 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.
 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.
 In thorough and careful reasons delivered on December 31, 2014, Justice Robert J. Smith granted summary judgment in favour of Shakiba.
 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.
 I agree with the motion judge, and would dismiss the appeal for the following reasons.
Discussion and Analysis
 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.
 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 Judge’s Role on the Summary Judgment Motion
 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.
 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?
 I see no error in the motion judge’s 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.
 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.
 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 Hamid’s 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.
 I do not accept this submission.
 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.
 The parties each received independent legal advice during the negotiations. Ms. Makooli represented Sima and Hamid. Shakiba’s brother, Shahab, was the negotiator for the bride’s family and he was represented by Mr. Kavanagh.
 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.
 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.
 Shakiba’s 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 Reza’s 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.
 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.
 After a discussion between the families on March 23, 2012, in which Shakiba’s 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.
 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 husband’s parents signed the documents confirming the gift with the benefit of independent legal advice.
 These findings were entirely open to the motion judge on the record. Apart from the statement of Hamid that Shakiba’s 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 Hamid’s own self-serving, after-the-fact testimony, there is no evidence respecting any such term or condition in the transfer.
The Stated Representation
 The motion judge found, on the basis of the evidence he reviewed, that it was “unlikely” Shakiba’s father had represented to Reza’s 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.
 He concluded that even if the statement had been made, it did not affect the result for two reasons. First, Shakiba’s 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 Shakiba’s interest in the land back to Reza’s 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 judge’s 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
 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.]
 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 Shakiba’s father (or, presumably, of Shakiba).
 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,  10 W.W.R. 713, at para. 52, leave to appeal refused,  S.C.C.A. No. 172, the “whole point of the Statute of Frauds is to provide written corroboration of a disputed oral deal.”
 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.]
 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 bride’s 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.
 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.
 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.
 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?
 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 donor’s 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,  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 appellant’s part, but to ascertain the appellant’s 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
 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.
 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 Shakiba’s father advised Reza’s 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 Shakiba’s 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.
 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.
 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.
 While it is not contested that Shakiba’s 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.
 Returning to the allegedly false representation made by Shakiba’s 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.
 The motion judge properly rejected the undue influence argument. I agree and reject the appellants’ submissions on fraudulent intent as well.
 For all of the foregoing reasons, I would dismiss the appeal.
 Shakiba is entitled to her costs of the appeal, fixed in the amount of $9,559.60, all inclusive.
Released: December 2, 2015