Foreign Divorces And Spousal Support In Ontario
By Mason Morningstar, Toronto Family Lawyer - 5 Minute Read
There’s a well-known family law rule from our appellate courts: as soon as spouses are divorced by a foreign jurisdiction, the Ontario courts lose their ability to order spousal support. This rule frankly stems from strict legislative interpretation rather than sound policy. The analysis starts with the two definitions of “spouse” under the Family Law Act (“the Act”). The first is in subsection 1(1):
“spouse” means either of two persons who,(a) are married to each other, or(b) have together entered into a marriage that is voidable or void, in good faith on the part of a person relying on this clause to assert any right. The second definition is found in section 29 (which is an expanded definition of “spouse” for support purposes):
“spouse” means a spouse as defined in subsection 1 (1), and in addition includes either of two persons who are not married to each other and have cohabited,(a) continuously for a period of not less than three years, or(b) in a relationship of some permanence, if they are the parents of a child as set out in section 4 of the Children’s Law Reform Act.Section 30 then states:
30 Every spouse has an obligation to provide support for himself or herself and for the other spouse, in accordance with need, to the extent that he or she is capable of doing so.The problem: there is no explicit reference to “former spouse” as someone who is entitled to support. Once parties are divorced, they are no longer “spouses”, which then bars them from seeking support under the Act. This is the line of reasoning appellate courts have followed.
Litigation on this issue then normally turns on whether the foreign divorce should be recognized as valid in Ontario. If so, then spousal support claims are dead; if not, then spousal support claims remain alive. Two recent Court of Appeal decisions have questioned whether this rule ought to be revisited: Vyazemskaya v. Safin, 2024 ONCA 156, and Sonia v. Ratan, 2024 ONCA 152. Justice Finlayson then took on this task at the trial level in Rasaei v. Bahman, 2025 ONSC 2074.
Justice Finlayson reiterated that there is a limited window for lower courts to depart from binding appellate precedent: (1) where a new legal issue is raised; and (2) where there is a change in the circumstances or evidence that “fundamentally shifts the parameters of the debate”: Carter v. Canada (Attorney General), 2015 SCC 5.
After finding that both prongs were met, Justice Finlayson outlined a different way to interpret the Act. He found that marriage and “cohabitation” under the Act are not mutually exclusive. In other words, married spouses may lose their status as “spouses” under the Act following a divorce, but they could still meet the expanded definition of “spouse” under section 29 of the Act by virtue of their cohabitation within marriage. As such, divorce itself does not necessarily extinguish their ability to claim spousal support under this new interpretation.
While this is a simplified summary, and Justice Finlayson provides a deeper contextual analysis as to why foreign divorces should not bar spousal support claims in Ontario (with which I agree entirely), I disagree with the interpretation of the Act as it is written. The expanded definition under section 29 applies specifically to people who are not married, but have cohabited with one another. Being unmarried is therefore a precondition to the subsequent cohabitation threshold. Under Justice Finlayson’s interpretation, however, the precondition of being unmarried is skipped over, which allows him to draw the conclusion that marriage and cohabitation under section 29 are not mutually exclusive. While these concepts should not be exclusive from a policy perspective, section 29 is poorly drafted such that this seems to be the inevitable result.
However, in this case, Justice Finlayson had already found that the foreign divorce would not be recognized in Ontario and that the wife was therefore still entitled to claim spousal support in the Ontario court. His subsequent analysis regarding the interpretation of the Act is admirable obiter. Essentially, the wording of the Act leads to outcomes that are self-evidently unreasonable, unjust, and undesirable. Where litigants are barred from pursuing spousal support due to technical statutory interpretations, they still actually require spousal support, but courts are unable to rectify the situation. Moreover, a basic principle of statutory interpretation suggests that the legislature does not intend there to be consequences that defeat the purpose of a statute or that provide for the differential treatment of persons for inadequate reasons. Yet, that is precisely the outcome of the Act.
As he often does, Justice Finlayson delivered another thoroughly reasoned and creative decision, which no doubt led to a just outcome for the wife in this case. However, all of this effort and creativity might be thwarted by other trial-level judges who simply choose to follow the appellate jurisprudence on the issue. This also raises a deeper philosophical question as to what judges should do when simply following a technical interpretation of the law will lead to an outwardly unjust outcome.
From a more practical standpoint, this judicial creativity and effort would be unnecessary if the legislature made one simple change to the Act: include the term “or former spouse” under section 30 to make it abundantly clear that foreign divorces will not automatically (and arbitrarily) extinguish a spousal support entitlement. This was the proposed solution from Justice Thorburn in Sonia v. Ratan, 2024 ONCA 152 (and consistent with legislation in five other Canadian provinces). It’s unclear why Ontario is lagging behind in this respect.
As always, none of the above is legal advice; it is information only. If you have questions about your situation, speak to a knowledgeable family lawyer for assistance.
Written by Mason Morningstar, Toronto Family Lawyer