SDR Valuations Inc.
Family

Disputes over reimbursement of wedding gifts common in family law

The case of an Iranian family in Ottawa requesting reimbursement of wedding gifts and costs from their son’s former wife is not surprising, says Toronto family lawyer Herschel Fogelman.

An Ontario Superior Court justice recently dismissed the husband’s family’s claims in Abdollahpour v. Banifatemi, 2014 ONSC 7273, where an order was requested for the bride to return a generous wedding gift from the family – half ownership of a $1-million Ottawa home – along with the cost of the wedding, about $50,000.

“Iranian culture and tradition requires that the groom’s family make a gift to the bride on the occasion of their wedding,” writes Justice Robert J. Smith, noting a year and a half after marriage, the parties separated.

The family argued the transfer of the 50 per cent interest in the property was subject to conditions including that the parties stay married and reside in the home and if the wife left the marriage, “her father verbally promised the husband’s father that he would return her 50% interest in the property to them,” reads the decision.

The wife contended neither the transfer of the land documents nor a Deed of Gift signed by the parties mentions conditions on the gift.

“From a legal perspective, the outcome is not surprising,” Fogelman, principal with Fogelman Law, tells AdvocateDaily.com. "It’s very common in family law situations for parents of spouses to give gifts on the occasion of the wedding and in the event of separation, want those gifts treated as loans, or there becomes an expectation that there is or ought to be repayment where it wasn’t originally considered by the the recipient that this was anything but a gift. It may have been contemplated by the donor that in the event of a separation some or all of the gift was to be returned, but this term was neither discussed nor agreed." 

Fogelman says he’s seen hundreds of cases that involve disputes over family gifts made at or after marriage. 

“To say this is unique to one cultural community is not correct,” he says.

Fogelman says the law is clear that gifts are absolute.

“There’s no such thing as a conditional gift,” he says. “If you want to secure your gift in some way, the law is very clear that you need to, at the same time the monies are being advanced or the home is being bought, have some documentation contemporaneous with the giving.

"Past cases say you can’t go back years later and enter into a loan agreement for a gift given years earlier. In the absence of a paper transaction at the time the monies were advanced, 99 times out of 100 those monies are going to be treated as gifts.”

While it’s customary in Iranian culture for the groom’s family to give the bride a gift, it doesn’t remove the legal implications of the practice, says Fogelman.

"If you have a family custom that says, ‘Well here’s a house, but if you separate you have to give me the house back,’ and you don’t seek legal advice to see if that family custom is in law in Canada or in Ontario, which by the way it is not, then you’re going to run into problems.”

 

To Read More Herschel Fogelman Posts Click Here
Lawyer Directory
BPFG: NEW AD TO ROTAE MONTHLY WITH BICOToronto Lawyers AssociationMKD InternationalFeldstein Family LawAccredited Security and Investigation Services Aitken Robertson Professional Corporation,Yermus & Associates Janice Quigg International Inc.