Rasaei v. Bahman, 2025 ONSC 2074 (CanLII)

[1]               This is my partial written Judgment following an uncontested trial in this case.  On the same day as its release, I delivered an oral Judgment respecting the wife’s parenting, support, equalization and interest claims that were heard during the trial. 

[2]               One of the core issues in this case concerns the impact of a foreign divorce that the husband obtained in Bahrain.  The wife’s counsel argued that this Court should not recognize it as valid under section 22 of the Divorce Act, R.S.C. 1985 C. 3 (2^nd Supp.), as amended (the “Divorce Act”).  For oral reasons now delivered, the Court agrees.  As such, the wife was entitled to pursue spousal support under section 15.2 of the Divorce Act, as well as other corollary relief also under the Divorce Act. 

[3]               Had the outcome been different respecting the recognition of the foreign divorce, the Court could not have ordered spousal support (or other corollary relief) under the Divorce Act.  The existing case law is such that usually[1] the Court cannot order spousal support under the Family Law Act, R.S.O. 1990, c. F.3., as amended (the “Family Law Act”) either.  At ¶ 44 of Vyazemskaya v. Safin, 2024 ONCA 156, George J.A. questions that line of authorities.  Writing for the panel, he specifically questioned whether the authorities weren’t “ripe for reconsideration”.  Thorburn J.A. made similar statements in Sonia v. Ratan, 2024 ONCA 152 at ¶ 94.  There, she wrote that the issue could be remedied by legislative reform; but she also said that perhaps the case law should be reconsidered.  Submissions had not been made, in either case though, and the Court of Appeal has yet to decide the issue. 

[4]               The wife argues that this Court should grant her spousal support under the Family Law Act in the alternative.  She relies on George J.A.’s statement in Vyazemskaya v. Safin.  She argues that the policy of the Family Law Act, stated in the preamble to the legislation, warrants such an approach.  She made submissions about the equities of the situation.  She argues that a broad reading of the legislation can in fact, and should in fact, include former spouses.   She pointed to the approaches taken in some of the other provinces.  Given the broader importance of this issue, I am addressing the wife’s alternative support claim under the Family Law Act in writing, in the event that I erred and ought to have recognized the foreign divorce. 

[5]               For the reasons that follow, I find persons who were formerly married and divorced, are still able to apply for spousal support under the Family Law Act.  A divorce on its own, whether foreign or domestic, does not deprive a court of its jurisdiction. Alternatively, in the unique circumstances of this case, the wife was able to claim spousal support based on section 29(b) since the parties resumed cohabitation after the foreign divorce, because they were in a relationship of some permanence, and they have a child together. 

[6]               As such, I would have ordered spousal support under the Family Law Act were Divorce Act corollary relief not available to the wife because of the foreign divorce.  Incidentally, the parenting orders and child support orders that I have made under the Divorce Act, would have instead been made under the Children’s Law Reform Act, R.S.O. 1990, c. C. 12, as amended and the Family Law Act.  And I would have extended the limitation period, to order equalization under the Family Law Act, in the event that the wife’s property claim was launched more than 2 years after the foreign divorce.   I addressed the limitation period issue already, in the oral Judgment. 

[7]               Some of the additional background information and my key findings of fact and conclusions in the oral Judgment are repeated here, for context.  The Court’s Final Orders are listed at the end of this partial written Judgment, in one location, for the parties’ ease of reference. 

[8]               The parties were married on May 22, 2008.  They lived together in Bahrain from around the time of their marriage until January of 2019, when the family relocated to Ontario. 

[9]               The parties have one child together, named Tiba.  Tiba is now 14 years old.  Tiba has lived with her mother since the parties’ separation.  The husband no longer sees Tiba.  He no longer travels to Ontario.  He participated in this trial by zoom.      

[10]           The length of the relationship was in dispute.  The parties disagreed about the date of separation.  The Court’s jurisdiction to award the wife some of the remedies she claimed was also in dispute, because of the foreign divorce.    

[11]           The husband’s position was that the separation occurred on about June 28, 2019.  At that time, the parties had an argument.  In haste, the parties entered into a kitchen table separation document that day.  The husband then left Ontario, and returned to Bahrain.        

[12]           Five days later, on July 3, 2019, the husband participated in a divorce ceremony, in Bahrain, in his office, in the presence of two witnesses.  The wife was not present.  The divorce ceremony was undertaken without any advance notice to her.    The husband later went to Court in Bahrain in July of 2023, to have the divorce confirmed.  That happened after the wife retained Ontario counsel, following her date of separation. 

[13]           The wife’s position was that the separation occurred on May 5, 2022, almost three years after the husband’s June 28, 2019 date.  That is when the wife discovered a text message, that suggested to her, that the husband was probably having an affair with someone else.      The wife’s view was that despite the June 28, 2019 argument, the parties’ marriage continued. 

[14]           For example, while the husband left Ontario, he travelled back here many times.  Other examples included that that the husband gave the wife gifts, which included a special painting.  The husband purchased the home in Newmarket in 2020, albeit in his name alone, for the wife and Tiba to live in.  He lived there too, when he came to Ontario. 

[15]           In early June of 2023, a little over a year after the wife’s date of separation, the wife retained Ontario counsel to resolve the family law issues between the parties.  Within days of receipt of an initial letter from counsel, the husband, once again acting in haste, took out a significant mortgage from TELB Mortgage Holding Corporation (“TELB”) against the Newmarket home, which I have now found was a matrimonial home.[2]  The fact that the husband did this, has caused much trouble. 

[16]           The husband went before a Court in Bahrain, to have his out of court divorce ceremony of four years earlier, confirmed.  I have found that the husband took this step also in the wife’s absence, and without proper notice to her. 

[17]           The litigation in this Court began by way of the wife’s Application issued July 21, 2023. 

[18]           After several urgent motions and conferences before other judges, I heard a summary judgment motion on May 17, 2024.  In addition to seeking certain declarations or findings of fact against the husband, by this point the wife had twice amended her original Application to launch claims for relief and compensation against TELB and against the Director of Land Titles.  As against TELB, the wife sought to set aside the husband’s mortgage, which she asserted had been fraudulently obtained.  As against the Director, the wife sought declaratory relief and an order of this Court, that would have essentially compelled the Director to pay her compensation from the Land Titles Assurance Fund under section 57(4) of the Land Titles Act, R.S.O. 1990, c. L. 5, as amended. 

[19]           In the Summary Judgment Reasons, I dismissed the wife’s claims against TELB on consent. [3]  As against the Director, I dismissed the wife’s claims for compensation after hearing argument, albeit without prejudice.  I found that the wife could later make a claim for compensation if she wanted to,  but that had to be done properly, according to the usual administrative process. 

[20]           The Summary Judgment Reasons contain additional useful information about this case.  They include a more detailed summary of the prior proceedings.  While I do not repeat the findings of fact or that history again here in full, the Summary Judgment Reasons can be accessed for additional context if needed, at the aforementioned citation.    

[21]           This was an uncontested trial.  The Respondent husband’s Answer was struck on March 4, 2024.  The husband was then (and still was when the uncontested trial started), in breach of multiple Orders requiring him to provide various financial and other disclosure to the Applicant wife, and to make financial payments for her and their daughter’s benefit.  The husband’s breaches also included his failure to account for the funds that he took out of the matrimonial home’s equity, and sent abroad. 

[22]           Rule 1(8.4) of the Family Law Rules limits the rights of notice and participation, of a person whose Answer has been struck.  But the Court also has the discretion to “order otherwise”.  I exercised that discretion to grant the husband fairly expansive participatory rights.  I allowed him to call evidence, and to challenge the wife’s evidence, about the circumstances of the relationship, specifically the date of separation, the resumption of the relationship after 2019, and the foreign divorce.  I did so, because if it turned out the Court lacked jurisdiction to award certain remedies to the wife, like spousal support, then the fact the husband’s Answer was struck, should not mean that the Court should just proceed to order those remedies, that it lacked the jurisdiction to order.  Even had I adjudicated the wife’s claims in her Application on an entirely undefended basis, the Court would still have had to correctly determine the scope of its jurisdiction.    

[23]           At a Trial Management Conference held on July 26, 2024, the question of the husband’s participatory rights was addressed.  The husband retained Ontario counsel, Laura Oliver, by the time of the July 26, 2024 appearance.  She participated in organizing this trial, on the husband’s behalf.  I expected her to be in attendance at the trial.  But on October 23, 2024, the husband signed a Form 4, discharging his Ontario lawyer.  In the end, he chose to act on his own for this trial, as was his right, even though he could well afford counsel. 

[24]           Notably though, the husband chose to retain two different lawyers in Bahrain.  One assisted him to obtain the foreign divorce.  The other lawyer he retained as an expert, to give opinion evidence about the foreign law of Bahrain.  At no time over the course of the more than 8 months between the time that Jarvis J. struck the father’s Answer and the start of this trial, or even during the almost 4 months between the July 26, 2024 Trial Management Conference and the start of this trial, did the husband take any meaningful steps to get himself into compliance with the prior Orders of this Court, and seek leave to have his Answer reinstated.  Nonetheless, the husband was permitted to participate at the trial, in the manner already explained.            

[25]           For the reasons delivered orally today, I have found: 

[26]           I turn now to the alternative Family Law Act analysis about spousal support. 

[27]           At least three appellate decisions have held that an Ontario court cannot award spousal support under either the Divorce Act or the Family Law Act after a foreign divorce.  Other Ontario appellate and trial level decisions have then referred to these three decisions as binding and authoritative, at least until quite recently.  In late 2024, the Ontario Court of Appeal twice called into question the line of authorities that restrictively interprets the Family Law Act. 

[28]           Following a foreign divorce granted by a court in South Africa, the Superior Court made a new support order incorporating the South African terms on consent.  A different judge  of the Superior Court later varied the original order in a subsequent variation proceeding.  Both Ontario orders purported to have been made under the Divorce Act. 

[29]           The Ontario Court of Appeal found that the Courts below could have neither granted the original Order, nor the variation Order.  Section 4 of the Divorce Act, as it was then written, conferred upon a Superior Court, only the “jurisdiction to hear and determine a corollary relief proceeding if the court has granted a divorce to either or both former spouses.”: see ¶ 25-30.   The Superior Court’s ability to have later varied that original order depended, among other things, on the original order having been valid in the first place:  see ¶  42, and 47-49.

[30]           Between the time of the original order and the appeal, section 4 of the Divorce Act had been amended.  On its face, the amendment seemingly widened the scope of the Divorce Act jurisdiction to award spousal support after a foreign divorce.   But in obiter, the Ontario Court of Appeal also considered the new section 4 of the Divorce Act, post-amendment, even though it did not strictly apply.[4] 

[31]           The Court wrote that Parliament still lacked the jurisdiction to pass legislation authorizing spousal support, except when ancillary or corollary to a divorce.  Any attempt to deal with support obligations in the absence of a Canadian divorce would encroach on provincial jurisdiction over “property and civil rights” in section 92 of the Constitution Act, 1867.  Nor could the parties, with their mutual consent, confer upon the Court jurisdiction that it otherwise did not have:  see ¶ 31-39, 46, and 59.

[32]           Regarding the jurisdiction to order spousal support under the Family Law Act, there was but a brief reference to that.  Towards the outset of the analysis at ¶26, the Court had first determined that the original Order and the variation Order must have been made under the Divorce Act, saying the Orders in issue could not have been made pursuant to the Family Law Act, “as the parties were not spouses as required thereunder”.  There is no further explanation as to why that was so.   The balance of the analysis pertains to the Divorce Act provisions.    

[33]           Like Rothgiesser v. Rothgiesser, Okmyansky v. Okmyansky also deals principally with the interpretation of the Divorce Act.  In this decision written seven years later, the Ontario Court of Appeal followed and elaborated upon its previous Divorce Act analysis from Rothgiesser v. Rothgiesser, albeit now not in obiter: see ¶ 31-41.  Unlike before, amended section 4 was now squarely applicable. 

[34]           But once again, the analysis about the Family Law Act, is brief.  After citing ¶26 of Rothgiesser v. Rothgiesser,  there is only one additional statement about its interpretation.   The Court chose to interpret the Family Law Act’s spousal support provisions restrictively, saying there was “no provision in the Act allowing [a claim for spousal support]”:  see ¶ 42.  The Ontario Court of Appeal did go on to find though, that a claim for an equalization payment could be pursued after a foreign divorce. 

[35]           Like the previous two decisions, Cheng v. Liu, now decided 10 years later, also concerned the interpretation of the Divorce Act.  Once again, there is just a passing reference to the inability to order spousal support under the Family Law Act. 

[36]           At ¶ 28, the Ontario Court of Appeal first described its earlier decision in Okmyansky v. Okmyansky as “clear and unequivocal authority” that an Ontario court lacked jurisdiction “to hear and determine a corollary relief proceeding under the Divorce Act following a valid divorce.”   Regarding the Family Law Act spousal support jurisdiction, the Court cited its earlier statements in Rothgiesser v. Rothgiesser and Okmyansky v. Okmyansky, without much further elaboration:  see ¶ 34. 

[37]           It was in this decision that the Court now found that it could grant child support under the Family Law Act, after a foreign divorce, choosing to take an expansive rather than a restrictive interpretation in this context.   But the contrary continued to remain in place, for spousal support. 

[38]           Each of Vyazemskaya v. Safin and Sonia v. Ratan came before the Ontario Court of Appeal last year, about 7 years after Chang v. Liu.  There has been much other litigation in recent years in Ontario, over the recognition of foreign divorces.    

[39]           Vyazemskaya v. Safin concerns the validity of a foreign divorce granted in Russia.  The trial judge did not recognize the foreign divorce under section 22 of the Divorce Act.  When dealing with that issue on appeal, the Ontario Court of Appeal still discussed in obiter the implications to the support claimant had the result been otherwise, writing that the inability to claim spousal support can sometimes result in a “significant hardship”:  see ¶ 43.   

[40]           George J.A.’s comments at ¶ 42-44 are worthy of repetition verbatim.  There, he wrote:

[41]           Similarly, Sonia v. Ratan concerned a foreign divorce granted in Bangladesh.  To the contrary, that foreign divorce was recognized as valid in Canada.  Regardless at ¶12, Thorburn J.A. similarly wrote that “unless and until the wording in the Family Law Act is changed to define “spouse” to explicitly include a former spouse, or this line of cases is revisited, a party such as Sonia, to a foreign divorce, cannot seek spousal support under the Family Law Act.” 

[42]           This Court is bound by prior, settled decisions of the Ontario Court of Appeal, that are not otherwise distinguishable on the facts.    At the appellate level, the Chief Justice or Associate Chief Justice for Ontario could for example, consider a request to convene a five-judge panel, to reconsider the line of authorities that George J.A. and Thorburn J.A. seem to be questioning.  But an issue like this one, has to first make its way to the Ontario Court of Appeal somehow.  As George J.A. said, arguments had not been made in the court below, or in the Court of Appeal, in Vyazemskaya v. Safin:  see again ¶ 44.

[43]           Perhaps the Ontario Court of Appeal may be willing to hear the issue for the first time on appeal, if the issue is actually argued on another appeal.  But if it is disinclined to decide arguments not pursued at trial, then that raises questions about how then, or when, can this Court properly engage in analysis and come to a conclusion that is contrary to binding authorities of the appellate court to enable that later appellate review?  Where legal principles are settled, vertical stare decisis applies.     

[44]           Vertical stare decisis requires “lower courts to follow the decisions of higher courts, with limited exceptions”.  The doctrine is important for a number of reasons.  It promotes legal certainty and stability.   It allows people to plan and manage their affairs accordingly.  It also promotes the rule of law, such that people are subject to similar rules. And it promotes the legitimate and efficient exercise of judicial authority:  see R. v. Kirkpatrick, 2022 SCC 33 ¶ 183. [5]

[45]           But while a lower court’s ability to depart from the binding precedent of a higher court is tightly limited, it still exists.  At ¶44 of Carter v. Canada (Attorney General), 2015 SCC 5, the Supreme Court also wrote “stare decisis is not a straitjacket that condemns the law to stasis”.  There, the Court found that trial courts could reconsider settled rulings of higher courts in two situations, namely (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”:  see also Canada (Attorney General) v. Bedford, 2013 SCC 72 ¶ 72.   

[46]           The Supreme Court’s Carter and Bedford decisions were Charter decisions.  A constitutional context is not present here.  But to the extent the commentary about changing circumstances or evidence applies outside constitutional contexts, there have been numerous developments in family law since the Rothgiesser decision decided in 2000.  For instance, family formations have changed over the years.  Same sex relationships were only beginning to be recognized in family law statutes when Rothgiesser had been decided. M. v. H., 1999 CanLii 686 (S.C.C.) had just been decided by the Supreme Court the year prior.  Perhaps more particular to this case, Canada continues to evolve as a highly mobile society.  The law respecting relocations in parenting cases has changed too.  The importance of recognizing and addressing family violence has been underscored in legislation.  There have been many cases about the recognition of foreign divorces in recent times, underlying many are the denial of remedies that would otherwise have existed.        

[47]           Then there is the “new legal issue” ground mentioned by the Supreme Court.  The Ontario Court of Appeal’s recent comments in Vyazemskaya v. Safin and Sonia v. Rattan, very much appear to be an invitation to have another look at the Family Law Act jurisprudence.  This creates a new question, or a new legal issue in a lower court, about the availability of spousal support under provincial legislation, after a divorce. 

[48]           I do not embark upon this analysis lightly, and I do so with the utmost of respect to the previous decisions of the Ontario Court of Appeal.  I do so because I believe there is a different way to read the Family Law Act, to include former spouses, whether divorced domestically or abroad, within the ambit of those who can claim spousal support, without the necessity of any legislative amendments.  Such a reading will redress the identified deprivation of remedies to this category of claimants. 

[49]           I say this for the following seven reasons:

[50]           Spousal support is governed by Part III of the Family Law Act, entitled “Support Obligations”.  

[51]           Section 33(1) provides that a court may, on application order a person to provide support for his or her “dependants” and determine the amount of support.

[52]            A “dependant” is defined in section 29 as meaning “a person to whom another has an obligation to provide support under this Part.”

[53]           Section 30 imposes that support obligation amongst spouses.  It reads that 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.  A “spouse” is therefore responsible for their own support, he or she is a potential payor, and he or she is a “dependant” as defined in section 29, all at once.  Such a person has standing to bring a support application, under section 33. 

[54]           So who is a “spouse” having both these obligations and these entitlements?  There are two definitions of “spouse” in the Family Law Act, the first being more restrictive than the second. 

[55]           The definitions in section 1(1) apply across the Family Law Act.    The definition of “spouse” in that section means either of two persons who,

[56]           There is then the other definition of “spouse” in section 29 of the Family Law Act, located in the Part III “Support Obligations” part of the Act.  “Spouse” has an expanded meaning in section 29.  It means a “spouse” as defined in section 1(1), and in addition includes either of two persons who are not married to each other and have cohabited,

[57]           Sections 33(8), (9), (10) then deal with entitlement, quantum and conduct in Family Law Act spousal support cases.  Section 34 sets out the powers of a Court to make various orders in such a properly constituted application.  Later provisions in the legislation deal with the filing of domestic contracts, and variations. 

[58]           The modern principle or approach to statutory interpretation requires the Court to read the words in legislation in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the legislation, its object, and the intention of the legislature:  see R. Sullivan, “Sullivan on the Construction of Statutes”, 7^th ed., Markham: LexisNexis Canada, Chapter 2;  see also Re Rizzo & Rizzo Shoes Ltd., 1998 CanLii 837 (S.C.C.) ¶ 21.   

[59]           I also rely on the Legislation Act, 2006, S.O. 2006 c. 21, Sched. F, as amended;  see also See also Re Rizzo & Rizzo Shoes Ltd. ¶ 22.   Section 63 of the Legislation Act provides that the law is always speaking.  The present tense shall be applied to circumstances as they arise.  Section 64 provides that acts are to be interpreted as being remedial and shall be given such fair, large and liberal interpretation as best ensures the attainment of its objects. 

[60]           While there is nothing in the section 1(1) definition of spouse that prevents two persons from being separated when a spousal support application is brought, section 1(1)(a) does on its face seem to require those two persons to still be married.  The section makes no reference to former, or divorced spouses.  The case law has adopted an interpretation consistent with that. 

[61]           Regarding the expanded definition of spouse in section 29, the jurisprudence seems to treat the concepts of cohabitation, and being married, as mutually exclusive concepts, without specifically saying as much.   In other words, once married, two persons can not also qualify as having cohabited. 

[62]           But as already indicated, section 30 legislates the obligation to provide for the other “spouse” by virtue of becoming a “spouse” and therefore a “dependent”, not by virtue of the relationship ending. The trouble with the above approaches, is that almost all spousal support applications are brought after a relationship breaks down, not during the relationship when the statutory obligation clearly exists.  It is quite frankly a fiction to say that the dissolution of a marriage in a foreign country without more, should be sufficient to discharge or satisfy the support obligation in many cases.  

[63]           In my view, the legislation can and should be interpreted and applied contextually, having regard to the reality that support is almost exclusively dealt with post-separation.  And during that post-separation period, there is no good reason to bestow upon one spouse or the other, some kind of advantage from obtaining a foreign divorce, before the support obligation can be adjudicated, where there is an adequate connection to Ontario. 

[64]           Applying that logic to this case, the parties were married.  Because of that, both parties had obligations to support themselves and each other under section 30.  The foreign divorce, which the husband obtained within days of an argument in June of 2019, did absolutely nothing to address the wife’s dependency, or to satisfy the other bases of entitlement.  The wife acquired the entitlement to support when she became a spouse;  why can the Court not make orders to address it now, when she needs the support the most? 

[65]           The definition in section 29 is also broad enough to permit the wife to seek support under the Family Law Act on the facts of this case. The grammatical and ordinary sense of the words in section 29 reveals that the meaning of spouse is broad and expansive.   

[66]           The definition of “spouse” there uses the word “means” to stipulate that the definition of spouse is that from section 1(1) (i.e., the married spouse), but it then uses the words, “and in addition includes” to clarify and enlarge the scope of the definition:  :  see “Sullivan on the Construction of Statutes”, Chapter 4.04[4] on the use of “means” and “includes”.   Persons who fall within the list after the words “and in addition includes”  are those who have cohabited continuously for not less than three years, or in a relationship of some permanence, if they are the parents of a child.

[67]           Although the previous appellate authorities (Rothgiesser v. Rothgiessler, Okmyansky v. Okmyansky, Chang v. Liu) have not actually said this, they seem to read as though marriage and cohabitation (while not being married) are mutually exclusive and distinct concepts.  But there is nothing in the definition of spouse in section 29, that excludes two persons who were formerly married from also falling within the definition of two persons who cohabited, provided they did so for a sufficiently permanent period of time.     The definition of “cohabit” itself, contained in section 1(1), says this. Section 1(1) defines to “cohabit” as “to live together in a conjugal relationship, whether within or outside marriage”. 

[68]           There is even other appellate authority, albeit in a different context, that confirms that marriage and cohabitation are not mutually exclusive concepts.  For instance, although an equalization payment under Part I is only available to persons who are or were married, pre-marital cohabitation forms part of the calculation of “cohabitation” for the purposes of an unequal division in section 5(6)(e) of the Family Law Act, as does cohabitation within the marriage: see Pope v. Pope, 1999 CanLii 2278 (Ont. C.A.)  Relying in part on the definition of “cohabit” in section 1(1), the Court considered this reality, and interpreted section 5(6)(e) to include the totality of the relationship, not just the married part. 

[69]           There is no reason why the expanded definition of spouse in section 29 cannot be read harmoniously with the scheme and object of the legislation, to find that someone who was previously married (i.e., who would have been a spouse under section 1(1) but for the foreign divorce), cannot also be a spouse under section 29(a), where they had sufficiently cohabited in the past, within marriage, as the definition of “cohabit” contemplates. 

[70]           Applied to this case, if the foreign divorce should have been recognized, the parties were nevertheless married for 11 years.  They also cohabited continuously for more than three years; they just did it within marriage (i.e., from 2008 until the foreign divorce on July 3, 2019).  Incidentally they then resumed cohabiting after the foreign divorce too for just under another 3 years.  I fail to see why the foreign divorce should remove their spousal status for spousal support purposes on the facts of this case, given the broad wording of sections 1(1) and 29.       

[71]           The purposes of the Family Law Act in general, and of the spousal support provisions in particular, support an expansive approach to standing to claim spousal support.    As counsel for the wife argued, the preamble to the Family Law Act itself recognizes the equal position of spouses as individuals within marriage and to recognize marriage as a form of partnership.  The preamble also comments on the necessity to provide in law for the orderly and equitable settlement of the affairs of the spouses upon the breakdown of the partnership, and to provide for other mutual obligations in family relationships. 

[72]           Section 29 has previously been broadly defined numerous times, including by the Supreme Court.  At ¶ 57 and 58 of M. v. H., the Supreme Court wrote “[t]he definition clearly indicates that the legislature decided to extend the obligation to provide spousal support beyond married persons”… and “[o]bligations to provide support were no longer dependent upon marriage.”    

[73]           Other case law that has considered what it means to cohabit and therefore be in a spousal or “conjugal” relationship, has almost universally taken a broad and flexible approach to defining who is a spouse.  In the well-known case, Molodowich v. Penttinen, 1980 CanLii 1537 (S.C.J.), early on this Court said that the elements of a spousal relationship need not all be present for a relationship to be found “conjugal”.   There are then many examples of this broad and flexible approach being taken in the case law, following Molodowich v. Penttinen.  For instance, two persons have been found to be spouses in circumstances where they did not always live under the same roof, and maintained separate residences: see Climans v. Latner, 2020 ONCA 554;  see also  Stephen v. Stawecki, 2006 CanLii 20225 (Ont. C.A.).  It has even been found that a person can have more than one spouse at the same time:  see for example Khan v. Talaoui, 2017 ONCJ 191.  Indeed, in that case, Bovard J. wrote that the spirit of the “spouse” definitions in section 1(1) and 29, is to “widen the traditional grounds under which deserving spouses can share in the financial rewards of their relationships in order to prevent the injustices that occurred in the past when conjugal rights were defined more narrowly”.

[74]           Unlike these broad cases, the husband and wife in this case were married. They had a so-called ‘traditional relationship’.  It is somewhat ironic that excluding the wife from being able to claim spousal support under the Family Law Act just because of the foreign divorce results in a more restrictive approach taken to a so-called ‘traditional relationship’ than the approach taken in the expanded cases of the kind I just described.  It cannot have been the intent of the legislature, to expand the categories of relationships that give rise to support obligations, while simultaneously restricting from its ambit, the kind of relationships that have traditionally been recognized. 

[75]           Finally, section 33(8) of the Family Law Act provides four broad purposes that an order for spousal support is supposed to address, all of which are engaged on the facts of this case.  One of the four purposes, specifically in section 33(8)(d), is to relieve financial hardship, if this has not been done by orders under Part I and II.  The Ontario Court of Appeal has recognized at ¶ 43 of Vyazemskaya v. Safin, and at ¶ 92 of Sonia v. Ratan, that the present state of the law in Ontario can result in “significant hardship”.  This runs contrary to the specific statutory objective in section 33(8)(d). 

[76]           Writing about all of the purposes of spousal support, S. O’Connell J. succinctly stated at ¶ 23 of Burns v. Krebss, 2013 ONCJ 76 that, “[t]he purpose of spousal support is to recognise the economic consequences arising from the spousal relationship itself, and the impact of the breakdown of the spousal partnership on both parties”.    Denying standing to claim spousal support under the Family Law Act based on the fact of a divorce and nothing else, addresses neither “the economic consequences arising from the spousal relationship itself”, nor “the impact of the breakdown of the spousal partnership”. 

[77]           In conclusion, reading the words of the legislation in a manner that results in denying a divorced spouse standing to apply for spousal support under the Family Law Act is doing the opposite of reading the words of the legislation “… harmoniously with the scheme of the legislation, its object, and the intention of the legislature.”  I find that to be inconsistent with the preamble to the Family Law Act as counsel for the wife argued, as well as the broadly defined definition of spouse in section 29, the case law interpreting what constitutes a spousal relationship, and the purposes of spousal support in section 33(8).

[78]           The words “former spouse” do turn up elsewhere in the Family Law Act, but not in section 29 or the other spousal support sections.  The question that this poses, is whether the omission is deliberate and therefore significant to the interpretation.    

[79]           There are in fact only four references to a “former spouse” in the entirety of the Family Law Act. The first two are located in Part I, which deals with “Family Property”.  Section 7 specifically provides for an application of a spouse, a “former spouse”, or a deceased spouse’s personal representative, to determine the entitlement to equalization of net family properties.  Section 10 provides for applications to the Court by a spouse or a “former spouse” for the determination of a question ownership or right to possession of a particular property, other than a question arising out of an equalization of net family properties under section 5.   But notably, the definition of “spouse” that applies for Part I is not the expanded definition in section 29;  it is the more narrow one in section 1(1).  The legislation helpfully makes it clear that a “former spouse” can apply, so equalization (or determinations about question of title) are not just available to spouses prior to a divorce.     

[80]           The other two references to “former spouse” are contained in section 46 of the Family Law Act, which addresses restraining Orders.  Section 46(2) reads:

[81]           The legislation helpfully makes it clear that restraining orders should be broadly available to persons (where warranted), including even persons who are still cohabiting, or who did not live together long enough to qualify as spouses.

[82]           But it is also open to courts to apply a statutory definition, similarly or differently within a piece of legislation, as the context requires.  For instance, at ¶ 35 of J.F.R. v. K.L.L., 2024 ONCA 520, the Ontario Court of Appeal recently wrote that a certain term in the Divorce Act (“withdrawal from parental charge”) was context-specific, and thus should be interpreted and applied accordingly.  In that context, the Court found that an adult child may withdraw from parental charge for some purposes, and not others:  see ¶ 36, 37. 

[83]           And so returning then to the meaning of a “spouse”, sometimes the context means “former spouse”, even where those words are not used.  Sometimes the context actually excludes a current spouse, despite the fact that the section 29 would include them.  In other words, in this case context can render the words “former spouse” unnecessary. 

[84]           For example, section 61 of the Family Law Act makes provision for a dependant to sue in tort where a person is injured or killed.  One of the kinds of dependants entitled to sue in section 61, is a “spouse”.  Although section 61 is not in Part III of the Family Law Act, the section adopts the expanded definition of “spouse” from section 29. 

[85]           Courts have given section 29 different interpretations in the section 61 context, compared to how it is  interpreted for spousal support.  For example, in Pole v. Hendery, 1987 CanLII 4163 (ON CA), [1987] O.J. No. 921 (C.A.), the Ontario Court of Appeal interpreted the meaning of “spouse” to require the two persons to have been spouses at the time of the accident.  Where two persons later entered into a cohabiting relationship or a marriage after the accident, the new spouse would not be able to sue in tort even if he or she technically fits the definition in section 29;  he or she had to have been a spouse at the time of the accident in question.  Context required the definition to be applied differently.

[86]           Another example is in Brown v. Alston, [1993] O.J. No. 758 (Gen. Div.).  There, a person was previously married (although separated) to the other, at the time of the accident.  She later divorced and remarried.  In the support scenario as the law is currently defined, she would no longer be the injured person’s spouse.  But she  still qualified as a spouse for the purposes of her claim under section 61:  see ¶3.  She was the spouse at the time.  Context required the definition to be applied differently.      

[87]           At ¶ 94 of Sonia v. Ratan, Thorburn J.A. wrote that the legislature could easily fix the interpretation problem in the spousal support context, by adding the words “former spouse” to section 30 of the Family Law Act.  Just like it is helpful in Part I or respecting restraining orders, that clarity would be helpful for support.  But neither Thorburn J.A. in Sonia v. Ratan, (nor George J.A. in Vyazemskaya v. Safin), indicate that legislative reform was the only solution to the conundrum. 

[88]           In my view, this is not a situation where there should be the application of the implied exclusion, or “expression unius est exclusion alterius” rule (i.e. to express one thing is to exclude another”):  see for example “Sullivan on the Construction of Statutes”, chapters 8.09 and 13.02 [3] & [4], on implied exclusions.  Such an approach would be too narrow, and inconsistent with the breadth of section 29 and the spousal support provisions, interpreted with the modern principle, and applied properly in context.    The omission of the words “former spouse” are insignificant in the result because the context of spousal support and the statutory basis for the obligation in the legislation, require the Court to look at the circumstances of the relationship, not the fact of a post-separation foreign divorce.  

[89]           At ¶ 42 of Vyazemskaya v. Safin, George J.A. wrote that it was noteworthy, that in five other provinces, former spouses can seek spousal support under the applicable provincial legislation.  Those provinces are Alberta, British Columbia, Manitoba, Nova Scotia and Prince Edward Island.    The Divorce Act also allows for the same, in the case of spouses who are divorced under the Divorce Act. 

[90]           Some statutes do in fact use the words “former spouse”, but not all of them do.  For instance, Nova Scotia’s Parenting and Support Act, R.S.N.S. 1989, c. 160 as amended does not use the term “former spouse”, but former spouses are still able apply for spousal support. 

[91]           Nova Scotia’s legislation contains a definition of “spouse” that means two persons who are married, who are domestic partners or are former domestic partners as defined in section 52 of the Vital Statistics Act, or who not being married to each other, cohabited in a conjugal relationship of a certain defined period permanence.  Not unlike Ontario’s legislation, the definition talks about “current” married spouses, and a certain period of prior cohabitation as qualifying. 

[92]           Section 3 then makes provision for applications for spousal support, without mention of a “former spouse”.  At ¶1, 22, and 36 of Russell v. Clayton, 2020 NSSC 141, Forgeron J. ordered spousal support under provincial legislation after a Canadian divorce (without corollary relief) had been granted (in Ontario).   At ¶ 13 of Charapovich v. Charapovich, 2022 NSSC 124 (S.C. Fam Div.), Jollimore J. found that a person could still claim spousal support under provincial legislation after a foreign divorce, because the ability to commence the claim was not “dependent on marital status”. 

[93]           Perhaps by contrast, where the legislation in other provinces uses the words “former spouse”, there may be a specific reason for that, based on the wording of the particular statutes.  For example, the relevant definition in Alberta’s legislation is in section 46(g) of the Family Law Act, S.A. 2003, c. F. 4.5, as amended, provides that a “spouse” includes a former spouse, and a party to a marriage.  It does not otherwise have the expansive kind of definition of what is a spouse, as contained in Ontario’s legislation.   

[94]           Likewise, section 3(2) of British Columbia’s Family Law Act, S.B.C. 2011, c. 25, as amended, also says that a spouse includes a former spouse.  At first blush, the definition of spouse in section 3(1) is similarly structured as the definition in section 29 of the Ontario legislation, but there are two key differences.  Unlike Ontario’s legislation, British Columbia’s Family Law Act uses the word “or”.  In other words, it provides that a spouse is someone who is married to another person or who lived with another in a “marriage like relationship” for a period of time.   The legislation also omits any definition of “cohabit”, like that in Ontario’s section 1(1).  Perhaps marriage and cohabitation are actually mutually exclusive concepts in British Columbia, given the way the legislation is written.  This also seems to be the case respecting Prince Edward Island’s Family Law Act, R.S.P.E.I., c. F-2.1, as amended, and Manitoba’s Family Law Act, C.C. S.M., c. F. 20, as amended, which both contain the term “former spouse”.   

[95]           In any event, without intending to overlook the statutory similarities, or differences between Ontario’s Family Law Act, and the legislation in other provinces, in general the treatment of an issue in other provinces can provide helpful guidance as to the interpretation of an issue, if some trends can be identified:  see “Sullivan on the Construction of Statutes”, chapter 13.06[4] on cross jurisdictional policy analysis.  I rely on the other legislation, and on George J.A.’s reference to the legislation in these other provinces, for that purpose.    

[96]           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.  The legislature does not intend to create anomalies.  It does not intend to create consequences that are self-evidently unreasonable,  unjust or unfair, or even undesirable either:  see Re Rizzo & Rizzo Shoes Ltd. ¶ 27;  see also “Sullivan on the Construction of Statutes”, Chapter 10 generally, on consequential analysis. 

[97]           Yet the existing interpretation of the Family Law Act has produced unintended consequences, including unfairness and hardship.  Those consequences include:

[98]           There are no constitutional division of powers impediments to this Court’s new interpretation.  Even in cases involving a Canadian divorce, where claims for spousal support are made under both the Divorce Act and the Family Law Act, section 36 of the Family Law Act provides for a stay.  But the Court can lift it.  Operational incompatibility only occurs if a corollary relief order is made under the Divorce Act:  see Cheng v. Liu ¶ 46-52;  see also Abernethy v. Peacock ¶ 23.  Unless a support order is made that is corollary to a Canadian divorce, the jurisdiction to legislate spousal support falls to the provinces.  Orders under provincial legislation can therefore be made:  see Rothgiesser v. Rothgiesser ¶ 59.  A foreign divorce does not change this.  Nor would a domestic divorce, that does not address spousal support. 

[99]           Although not a statutory interpretation principle per se, there is an access to justice issue here.  The approach taken in this Judgment provides litigants with more choices about the court in which they would like to pursue spousal support.  In locations where there is no Unified Family Court, where there is a foreign divorce order, a Canadian divorce order that is silent as to corollary relief, no pending Divorce Act corollary relief claim, or a pending Divorce Act corollary relief claim but where no order has yet been made and the statutory stay has been lifted, the Ontario Court of Justice can address the issue of spousal support under the Family Law Act just as the Superior Court can.  Where there is an agreement to be filed and varied but the parties are divorced, the Ontario Court of Justice would no longer potentially be restricted from acting.    

[100]      Much has been written about the importance of having a Unified Family Court province-wide.  In the absence of that being implemented, interpreting the law in a manner that reduces complicated jurisdictional issues about the choice of court, increases options, and consequently increases access to justice for the litigants of Ontario, creates much needed efficiencies.   

[101]        One of the reasons why the Ontario Court of Appeal held in Chang v. Liu that a court could make a child support order after a valid foreign divorce, was because there is “no statutory prohibition against utilizing the FLA in such circumstances.  Indeed, the use of the FLA to provide a remedy is entirely consistent with the statutory objective of ensuring that parents provide support for their dependent children”:  see ¶ 45.   Yet in its ruling 10 years earlier in Okmyansky v. Okmyansky, the Court adopted a restrictive interpretation about spousal support, writing that there was no provision permitting the Court to order spousal support in similar circumstances:  see ¶ 42.

[102]      The law has evolved.  There is no good reason to maintain a restrictive interpretation when it comes to spousal support:  see also “Sullivan on the Construction of Statutes”, Chapter 10.04 [1] – [3], on resolving ambiguity, restrictive and expansive interpretations.  The Court’s commentary about child support applications in 2017 is as equally applicable to spousal support applications. 

[103]      Alternatively, if spousal support remains unavailable to divorced spouses under the Family Law Act, I would have found that the parties are still spouses within the meaning of section 29(b) of the Family Law Act, based on their resumed cohabitation after the foreign divorce in a relationship of some permanence, given that they are also the parents of Tiba:  see DeSouza v. DeSouza, 1999 CarswellOnt 1550 (Prov. Div.);  see also Halliday v. Halliday, 1997 CanLii 737 (Ont. C.A.). 

[104]      To the extent that the Court would then be required to use a shorter length of the relationship, when calculating either the quantum or duration of spousal support, one can see how this alternative approach may also still create an unfairness and hardship.  Moreover, while the unusual facts of this case included continued cohabitation after the July 3, 2019 foreign divorce,  that is an anomaly and will not be a present feature in most cases. 

[105]      In any event, I am not deciding the case under section 29(b), based merely on the resumption of cohabitation for just under a 3 year period, post-foreign divorce, in this case.  I leave this very unusual issue, about how to calculate the length of such a relationship for spousal support purposes, for another day.    

[106]      In conclusion, if this Court ought to have recognized the foreign divorce, I find the wife was still entitled to pursue a claim for spousal support under the Family Law Act.   I would have made the same spousal support order set out below, but under the Family Law Act.  I would have also made the parenting and child support orders under provincial legislation, likewise.    

[107]      I make the following Final Orders: