Does property in Iran count when dividing family property in Ontario?

Usually, yes. Equalization under Ontario's Family Law Act is based on the value of all the property each married spouse owns on the valuation date, and the Act does not leave property out because it is outside Canada. In a 2017 Court of Appeal case involving a couple married in Iran, real estate in Iran was valued and included. Some property, such as an inheritance received during the marriage, is excluded wherever it is located.

This page applies the Ontario rules to an apartment, land, a business share, gold or a bank account in Iran. For how equalization works in general, start with our page on property division in Ontario. It belongs to our set of guides for Persian-speaking families in Toronto, many of whom own or expect to inherit property in Iran.

How is property in Iran handled in an Ontario case, step by step?

Which country's law decides your property rights?

Section 15 of the Family Law Act answers this. Property rights arising from the marriage are governed by the law of the place where both spouses had their last common habitual residence, or by Ontario law if there was no such place. For families who came to Ontario together and separated here, that place is usually Ontario, so Ontario's equalization rules apply to everything they own, in Canada and in Iran.

The answer can change if the spouses never lived together in Ontario, for example where one spouse came to Canada alone and the other stayed in Iran. Then the last common habitual residence may be in Iran, and section 15 points to Iranian law for the property rights. A case like that needs advice early, before positions are taken.

How does equalization treat property in Iran?

Equalization is not a division of each item. Each spouse adds up the value of what they own on the valuation date, subtracts their debts, and subtracts the net value of what they brought into the marriage (except a matrimonial home). The spouse with the smaller result is entitled to one half of the difference (sections 4 and 5). So a flat in Tehran registered to one spouse is not split in two: its value goes into that spouse's calculation.

Whoever claims a deduction or an exclusion has to prove it (section 4(3)). An inheritance from a parent in Iran is excluded only if you can show where it came from and, if it was reinvested, what it became. On the mahr, see how a mahr counts in equalization.

What did the Court of Appeal do with property in Iran?

In Bakhshi v. Hosseinzadeh, 2017 ONCA 838, the husband argued that some of his real estate in Iran had not been appraised, so the calculation was inaccurate. The Court of Appeal rejected that. The trial judge had found the assets belonged to the husband, so it was his responsibility, under the disclosure rule, to provide appraisals. Without them, the judge used the purchase prices, and the Court of Appeal found that approach was not arbitrary. The lesson for the owner is plain: if you do not prove the value of your own property, the court will choose a figure without you.

What do you have to disclose and prove?

In an equalization claim each spouse serves a sworn statement of their property and debts as of the date of marriage, the valuation date and the date of the statement, with the deductions and exclusions claimed and anything disposed of in the past two years (section 8). Under rule 13(3.3) of the Family Law Rules, within 30 days after the financial statement is due, each spouse must also serve documents that include:

• the statement nearest the valuation date for each bank, pension, savings or investment account;
• documents showing the value on the valuation date of other property, such as real estate abroad;
• documents supporting any exclusion, such as an inheritance;
• statements for debts owed on the valuation date; and
• available documents showing the value of property and debts on the date of marriage.

Persian-language deeds, bank records and appraisals will need translations the court can read; Ontario's court guide already requires a certified translation for a foreign marriage certificate, and the same care is sensible here. The valuation date is usually the separation date, and values are taken as of the close of business that day (section 4).

If a spouse does not disclose, the court has tools under rule 1(8), including costs, an order that undisclosed documents cannot be used, and striking out that spouse's filings. Our guide to financial statements in an Ontario family case covers the forms and updates.

Can an Ontario court order property in Iran to be sold or transferred?

The usual order is a payment of money. Section 9 of the Act lets the court order the payment, require security such as a charge on property, allow payment in instalments over up to ten years to avoid hardship, and, if appropriate to satisfy the obligation, order property transferred, partitioned or sold. Whether an order about land in Iran can be carried out there is a question of Iranian law, which this guide does not cover. The Government of Canada's travel advice notes that Iran does not automatically recognize the orders of Canadian courts in family law matters, which is one reason Ontario courts usually work with a money payment.

How long do you have to make the claim?

A divorce obtained quickly, in Ontario or recognized from abroad, can start the two-year clock long before the six-year one runs out. The court can extend a time limit only if there are apparent grounds for relief, the delay was in good faith, and no one will suffer substantial prejudice (section 2(8)). Other time limits are listed in the deadlines in an Ontario family case. If the divorce question is still open, read married in Iran: divorcing in Ontario. For what to collect right away, see our first-week separation checklist.

What changes the answer?

• Where you last lived together. If it was Ontario, Ontario law governs the property rights; if you never lived together here, the answer may point to Iranian law (FLA, s. 15).
• When and how you acquired the property. Property owned at the wedding is deducted at its net value on that date; an inheritance or gift from a third person after the wedding is excluded (s. 4(1) and (2)).
• Whether you can trace an inheritance. Exclusions must be proved by the person claiming them (s. 4(3)).
• Whether the home is in Ontario. The special matrimonial home rules on possession and consent to a sale apply only to homes situated in Ontario (s. 28(1)); for a home here, see whether a spouse can sell or mortgage the family home.
• Whether there is a domestic contract. Spouses can agree to exclude property (s. 4(2), item 6), and a mahr counts as a debt unless it says otherwise.
• Whether a divorce has already been granted. That starts the two-year limit in s. 7(3).

A worked example

For example, imagine a couple who moved from Shiraz to Richmond Hill and separated after twelve years in Ontario. The husband owns an apartment in Tehran that he bought during the marriage, and the wife inherited a plot of land from her father in Iran three years ago. Because their last common home was in Ontario, Ontario law applies to both. The Tehran apartment goes into the husband's net family property at its value on the separation date, and he should provide a translated appraisal or other value evidence; without it, the court may choose a figure, as it did in Bakhshi. The wife's land is excluded if she proves it came by inheritance after the marriage, with the estate papers and a certified translation. Living in York Region, they would go to court in Newmarket; see how York Region family cases work. This is a hypothetical walk-through, not a prediction of any result.

What mistakes do people make with property in Iran?

1. Leaving it off the financial statement because it is far away or registered in a relative's name for convenience.
2. Assuming an inheritance is automatically excluded without the documents to trace it.
3. Moving or transferring property after separation. The sworn statement covers property disposed of in the two years before it (s. 8).
4. Not providing a value for your own property, and leaving the court to pick one.
5. Relying on informal translations of deeds and bank records.
6. Missing the two-year limit after a quick divorce.

What to do this week

1. List every asset and debt in Iran: real estate, land, shares, gold, bank accounts and loans, with whose name each is in.
2. Find the purchase documents and any recent valuations, and arrange certified English translations.
3. For any inheritance, gather the estate papers and records showing where the money or property went.
4. Write down your separation date and your date of marriage.
5. Note any divorce date, in Ontario or Iran, so the two-year limit can be checked.

Frequently asked questions

Is property registered in a parent's name in Iran included?

Under the Act, property means any interest, present or future, vested or contingent, in real or personal property (s. 4(1)). If you say the property is really yours or really someone else's, expect to prove it with documents.

What exchange rate is used?

Values are calculated as of the close of business on the valuation date (s. 4(4)), so the value in Canadian dollars on that date is what matters. Keep evidence of the rate you rely on.

Does gold jewellery count?

Yes, as property, at its value on the valuation date, unless it falls within an exclusion such as a gift from a third person after the marriage (s. 4(2)).

Can we agree to keep property in Iran out of the calculation?

Yes, in a domestic contract that meets the form rules: in writing, signed and witnessed. A family arbitration is another option, but only under Canadian law; see whether a family arbitration award is binding.

What if my spouse hides property in Iran?

The court can respond to non-disclosure under the Family Law Rules, including costs, refusing to let a party rely on undisclosed documents, and striking out filings (r. 1(8)).

Do I need to sell the property in Iran to pay?

Not necessarily. The order is usually a money payment, which can be secured or paid in instalments over up to ten years to avoid hardship (s. 9).

Sarbazevatan Law handles property division for families in Toronto, Thornhill and Richmond Hill, in English, Persian (Farsi) and French. Call +1 (416) 628-2041 or reach us through the contact page.