Most experienced family law lawyers have faced the situation where a client walks into your office following the breakdown of an international marriage but is still seeking spousal support in Ontario. Whether the law is equipped to address this issue primarily lies on which jurisdiction you practice in. For example, in British Columbia section 161 of its Family Law Act addressed this issue many years ago, which authorizes the court to make spousal support orders even if the marriage was dissolved abroad. However, in Ontario the courts lack jurisdiction to address spousal support despite having jurisdiction to equalize assets and secure child support.
Under binding appellate authority, Ontario courts remain powerless to award individuals spousal support. This statutory void – long criticized by family bar practitioners and trial judges alike—has resurfaced as a pressing issue across Canadian family law. Recent judicial grappling, most notably Justice Alex Finlayson’s detailed critique in Rasaei v. Bahman (2025 ONSC 2074), highlights why the bar must adopt aggressive tactical measures while Queen’s Park and Parliament deliberate legislative reform. Read more.
The Jurisdictional Roadblock
Navigating family law in Ontario after a foreign divorce can be confusing. Let’s dive into some of the challenges you might face.
The Court in the following cases addresses the roadblocks and challenges in recovering spousal support after a foreign divorce.
The jurisdictional barrier stems from the interplay between federal and provincial statutes:
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The Federal Hurdle (Divorce Act, s. 4 & s. 15.2): Under the Divorce Act, corollary relief—including spousal support—can only be granted to a “spouse.” In Rothgiesser v. Rothgiesser (2000 CanLII 16809) and Okmyansky v. Okmyansky (2007 ONCA 427), the Ontario Court of Appeal confirmed that Canadian courts lack jurisdiction to grant corollary relief once a valid foreign divorce has dissolved the marriage. If the divorce was finalized abroad, the parties are no longer “spouses” under federal law.
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The Provincial Dead-End (Family Law Act, Part III): Litigators initially turned to provincial legislation as a safety net. While the Ontario Court of Appeal held in Cheng v. Liu (2017 ONCA 104) that Ontario courts retain jurisdiction under the Family Law Act (FLA) to adjudicate child support and net family property equalization post-foreign divorce, it affirmed that no such route exists for spousal support. Section 29 of the FLA defines “spouse” to include either of two persons who “have together entered into a marriage.” Once validly divorced abroad, the claimant ceases to be a spouse eligible to commence an initial claim under Part III.
The outcome is an arbitrary divide: a foreign divorce leaves intact an Ontario court’s ability to equalize multi-million-dollar asset portfolios and secure child support, yet bars access to ongoing spousal maintenance.
Judicial Pushback and the Interprovincial Disconnect
Trial judges have openly voiced frustration with this framework. In Rasaei v. Bahman, although the court ultimately declined to recognize a Bahraini divorce under section 22 of the Divorce Act due to lack of ordinary residence and natural justice defects, Justice Finlayson undertook an extensive analysis of the statutory lacuna. His reasons challenged the traditional reading of the Family Law Act, suggesting that provincial support regimes could—and should—be interpreted to prevent foreign divorces from extinguishing support rights where equity demands it.
Engaging with legal experts ensures you have the support needed to address judicial pushbacks. These professionals can help interpret complex legal jargon and provide clarity on your case. Their experience in similar cases can be invaluable in overcoming obstacles.
Legal experts will work to present your case convincingly in court. They will also help you anticipate potential challenges and prepare to address them. By engaging with skilled legal professionals, you’re taking a proactive step to secure your rights and achieve a positive outcome.
Strategic Tactics for Litigators
Until the Ontario legislature amends the Family Law Act or Parliament updates the Divorce Act, counsel representing economically dependent spouses must act preemptively:
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Challenge Recognition Under Section 22: Scrutinize the foreign decree under the Divorce Act‘s three-part recognition test: ordinary residence, procedural fairness, and public policy. If the foreign court lacked a genuine connection (the foreign petitioner was not ordinarily resident for at least one year before filing) or failed to accord proper notice, the divorce can be declared invalid in Canada, restoring Divorce Act jurisdiction.
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Win the Race to the Courthouse: If a client anticipates an overseas filing, immediately issue and serve an Ontario Application claiming divorce and corollary relief. An active domestic proceeding allows counsel to move for anti-suit injunctions or preservation orders before a foreign decree becomes res judicata.
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Plead Alternative Equitable and Property Remedies: Where spousal support is legally foreclosed, redirect financial claims through robust equalization arguments under the FLA, claims for unjust enrichment, and constructive trust over Canadian assets.
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Consider Section 15 Charter Challenges: A more original strategy for cases with catastrophic economic fallout, can be framed as the statutory exclusion under Part III of the FLA as a violation of section 15 equality rights, challenging the arbitrary differential treatment between domestically and internationally divorced residents.
The Call for Reform
The current regime rewards spouses who strategically forum-shop in jurisdictions with summary divorce processes that ignore ongoing support obligations. Ontario cannot afford to remain a jurisdiction where valid cross-border ties become a procedural trap. Harmonizing the Family Law Act with modern cross-border realities is overdue; until Queen’s Park enacts an equivalent to British Columbia’s statutory protections, family law counsel must rely on careful evidentiary preparation and aggressive jurisdictional tactics to protect dependent spouses.
The lawyers at Vakili Law Group have extensive experience with Family Law matters and can help you navigate the myriad of issues that can arise in the context of Family Law litigation. If you require the assistance of a family law lawyer then feel free to contact the lawyers at Vakili Law Group by scheduling a 15 minute complementary consultation by clicking on the following calendar link: https://calendly.com/vlglaw/book-a-call-meeting.