“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 (CanLII), [1999] 10 W.W.R. 713, at para. 52, leave to appeal refused, [1999] 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), 1991 CanLII 7061 (ON CA), 81 D.L.R. (4th) 194 (Ont. C.A.), at pp. 200-201, leave to appeal refused, [1991] 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.”