Mehralian v. Dunmore: Can You Claim Spousal Support After a Foreign Divorce?

Introduction

The Ontario Superior Court’s decision in Mehralian v. Dunmore, 2025 ONSC 649, offers vital guidance for family law practitioners handling spousal support claims involving foreign divorces. The case involved a constitutional challenge under section 15 of the Canadian Charter of Rights and Freedoms to provisions of the Divorce Act and Ontario Family Law Act (FLA) that preclude spousal support for individuals subject to valid foreign divorces. Justice Mathen dismissed the challenge due to procedural errors, inadequate notice, and evidentiary deficiencies, providing critical lessons for effective Charter litigation in family law.

Case Facts

• Parties: Raha Mehralian (Applicant, Iranian-Canadian, Ontario resident) and Michael Paul Dunmore (Respondent, Canadian lawyer). Intervenors included the Attorney General of Ontario, the Canadian Council of Muslim Women (CCMW), and the Barbra Schlifer Commemorative Clinic.
• Background:
  • Married in Japan (2015), lived internationally, and had a son in Canada (2020).
  • Underwent a second religious marriage in Oman (2021).
  • Separated in Toronto (May 2021) after an alleged domestic violence incident.
  • Both initiated divorce proceedings: Dunmore in Oman, Mehralian in Ontario.
  • A temporary support order (Kimmel J. order, November 2021) granted $7,500/month (child and spousal support).
  • An Omani divorce was granted (February 2022), recognized in Ontario (Myers J. order, February 2023).
  • The Shore J. order (February 2024) stayed spousal support, reducing payments to $2,808/month (child support only) due to the valid foreign divorce.
• Claim: Mehralian challenged section 4 of the Divorce Act and section 29 of the FLA, alleging discrimination based on marital status under section 15 of the Charter. She sought to reinstate the Kimmel J. order and include “former spouse” in the FLA’s definition of “spouse.”

Legal Issues

1. Collateral Attack: Was Mehralian’s motion a collateral attack on prior rulings recognizing the Omani divorce?
2. Notice of Constitutional Question: Did Mehralian’s arguments align with her Notice, which cited only marital status as the ground of discrimination?
3. Section 15 Charter Claim: Did Mehralian establish a prima facie case of discrimination under section 15 based on marital status?

Decision and Reasoning

The court, per Mathen J., dismissed the motion. Key findings include:

1. Collateral Attack (paras. 54-70)

• Finding: The motion was a collateral attack on the Myers J. order (validating the Omani divorce) and Shore J. order (staying spousal support).
• Reasoning:
  • Mehralian did not appeal the Court of Appeal’s ruling on the divorce’s validity to the Supreme Court of Canada, unlike Dunmore, who appealed a parenting issue.
  • Mehralian request to reinstate the Kimmel J. order circumvented appeal routes.
  • No legal authority supported reinstating a prior order under section 52 or section 24 of the Charter.
  • The motion’s procedural history and remedy sought indicated an attempt to relitigate settled issues.

2. Notice of Constitutional Question (paras. 71-101)

• Finding: Mehralian’s arguments, focusing on sex, religion, and immigration status, exceeded the Notice’s scope, which cited only marital status.
• Reasoning:
  • A Notice must specify grounds of discrimination to allow respondents to prepare (Gramaglia v. Alberta, 2007 ABCA 93; Ardoch Algonquin First Nation, 2003 FCA 473).
  • Intervenors (CCMW, Schlifer Clinic) raised systemic issues affecting Muslim and migrant women but could not expand the Notice’s scope.
  • Considering unpleaded grounds would violate section 109 of the Courts of Justice Act, undermining fair notice in constitutional litigation.

3. Section 15 Charter Claim (paras. 102-159)

• Finding: Mehralian failed to establish a prima facie case of discrimination under section 15.
• Reasoning:
  • Distinction: Mehralian was denied spousal support due to her foreign divorce, unlike Canadian-divorced spouses, common-law spouses, or separated spouses. The court found “that, because of circumstances tied to her divorce, the Applicant is not entitled to sue for spousal support in Ontario. She is therefore treated differently from other persons in Ontario including divorced spouses eligible for corollary relief under the Divorce Act, common-law spouses, and separated spouses. This difference is owing both to the FLA and to the interpretation of the Divorce Act in Ontario. The Applicant therefore experiences a distinction traceable to the impugned laws and the judicial interpretation of them.” (para. 117).
  • Prohibited Ground (Marital Status):
    • Mehralian presumed being divorced qualified as “marital status,” an analogous ground under section 15, but failed to argue or substantiate this point.
    • Respondents cited Hodge v. Canada (2004 SCC 65) and Muggah v. Nova Scotia (2015 NSCA 63), suggesting “marital status” may not include former spouses under current interpretations.
    • The court noted that Hodge may not universally apply, and being divorced could theoretically be an analogous ground due to stigma or involuntariness, but Mehralian did not sufficiently develop this argument (paras. 130 and 131).
    • The true distinction that placed Ms. Mehralian outside of Ontario’s spousal support provisions stemmed primarily from the place of divorce (foreign vs. Canadian), not marital status (para. 134).
  • Perpetuation of Disadvantage:
    • Mehralian had to establish that any marital status distinction amounted to discrimination. Mehralian’s arguments centered on Muslim women, immigrants, and marginalized groups, not marital status (para. 136).
    • She provided insufficient evidence, relying on academic articles, a non-systematic case list, and general sources that lacked direct, substantial data to prove systemic discrimination or disproportionate impacts on these groups (paras. 145-152).
    • The court could not take judicial notice of her claims (Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30).
  • Conclusion: Mehralian had not established a prima facie claim of discrimination under section 15(1) of the Charter (para. 157).
• Other Notes: The court did not address Ontario’s division-of-powers argument or section 1 of the Charter, as the prima facie claim failed. It acknowledged hardship for foreign divorcees, as noted in Vyazemskaya v. Safin (2024 ONCA 156), but found procedural and evidentiary issues fatal.

Order (para. 163)

• Motion dismissed.
• No costs against intervenors.
• Costs between Mehralian and Dunmore to be determined via submissions if not agreed upon by March 15, 2025.

Practice Tips for Ontario Family Law Practitioners

1. Anticipate Foreign Divorce Issues Early:
   • For clients with international ties, assess risks of foreign divorce proceedings. Ontario’s exclusion of spousal support for valid foreign divorces (Rothgiesser v. Rothgiesser, 2000 CanLII 1153; Okmyansky v. Okmyansky, 2007 ONCA 427) remains binding.
   • Advise clients to initiate Canadian proceedings promptly to establish jurisdiction, as foreign divorces may preclude corollary relief (Divorce Act, s. 4).
2. Exhaust Appeal Routes:
   • Avoid collateral attacks by appealing adverse rulings on divorce validity or support orders. In Mehralian, the Applicant’s failure to appeal the divorce recognition to the Supreme Court of Canada undermined her motion.
   • Document all procedural steps to demonstrate diligence if constitutional challenges arise.
3. Craft Precise Constitutional Notices:
   • In Charter challenges, ensure the Notice of Constitutional Question clearly specifies all grounds of discrimination (Courts of Justice Act, s. 109). Mehralian’s reliance on unpleaded grounds (sex, religion) was fatal.
   • If alleging intersecting discrimination (Fraser v. Canada, 2020 SCC 28), explicitly include all relevant grounds in the Notice to allow respondents and intervenors to prepare.
4. Build a Robust Evidentiary Record:
   • Charter claims require robust evidence to substantiate discrimination (R. v. Downes, 2023 SCC 6). Social science data, expert testimony, or systematic case analyses are critical, unlike the insufficient academic articles and case lists in Mehralian (Canada v. Bedford, 2013 SCC 72).
   • For systemic claims (e.g., impact on Muslim or immigrant women), collaborate with organizations like CCMW or Schlifer Clinic to access data or affidavits, ensuring compliance with motion timelines.
5. Tailor Remedies Carefully:
   • Requests for remedies like reinstating prior orders (Mehralian’s Kimmel J. order request) must be grounded in legal authority under section 52 or section 24 of the Charter. Avoid remedies that appear to relitigate settled issues.
   • Clarify whether declarations of invalidity are prospective or retrospective (Canada v. Hislop, 2007 SCC 10) to avoid ambiguity.
6. Engage with Intervenors Strategically:
   • Public interest intervenors can strengthen systemic arguments but must stay within the Notice’s scope (Leiper J. endorsement, [para. 93). Coordinate early to align arguments and evidence.
   • Anticipate government intervenors (e.g., Ontario) raising division-of-powers arguments, requiring robust rebuttals on Charter supremacy.
7. Monitor Jurisprudential and Legislative Trends:
   • The Court of Appeal’s decision in Vyazemskaya v. Safin, 2024 ONCA 156, for reconsidering spousal support exclusions, combined with the hardship acknowledged in Mehralian, signals potential reform. Practitioners should stay vigilant for appellate decisions or legislative changes in Ontario.
   • Four provinces (Alberta, British Columbia, Manitoba, Prince Edward Island) allow former spouses to seek support, and Quebec permits residents with foreign divorces to claim spousal support (Okmyansky, [paras. 46 and 47). These approaches may inform future advocacy.

Conclusion

Mehralian v. Dunmore highlights the procedural and evidentiary rigor required for Charter challenges in family law, particularly regarding spousal support for foreign divorcees. Practitioners must ensure precise pleadings, comprehensive evidence, and alignment with prior rulings to succeed. The court’s recognition of hardship and the appellate court’s openness to revisiting Ontario’s framework suggest that future cases with stronger arguments and evidence may prompt change. By applying these lessons, family law lawyers can effectively advocate for clients at the intersection of family and constitutional law.

Let’s continue to elevate the practice of family law in Ontario!

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Disclaimer: The information provided in this blog post is intended for general informational purposes only and should not be considered as legal advice. Consult with a qualified family law attorney for advice regarding your specific situation. Goldhart Mediation & Arbitration is not responsible for any actions taken based on the information presented in this blog.