Rasaei v. Bahman: Redefines Spousal Support Eligibility After Divorce

Introduction

The Ontario Superior Court of Justice’s decision in Rasaei v. Bahman, 2025 ONSC 2074, delivered by Justice Alex Finlayson on April 2, 2025, marks a transformative shift in Ontario family law. By reinterpreting the Family Law Act (FLA), R.S.O. 1990, c. F.3, to allow spousal support claims after a foreign or domestic divorce, the court overturned restrictive appellate precedents, addressing significant hardships and aligning Ontario with other Canadian provinces.

Case Overview

Rasaei v. Bahman arose from a contentious dispute between Mojgan Rasaei (wife) and Ahmed Haji Abdulrahman Bahman (husband). Married in Bahrain in 2008, the couple relocated to Ontario in 2019 with their 14-year-old daughter, T. Key issues included:

• Foreign Divorce: The husband claimed a unilateral divorce in Bahrain on July 3, 2019, without the wife’s notice, confirmed in 2023 after she retained counsel.
• Separation Date: The husband argued separation occurred on June 28, 2019, while the wife asserted May 5, 2022, citing resumed cohabitation.
• Spousal Support: The wife sought support under the Divorce Act or, alternatively, the FLA, challenging case law barring FLA claims post-divorce.
• Financial Misconduct: The husband improperly mortgaged the Newmarket matrimonial home in 2023, misrepresenting his marital status.

The trial was uncontested due to the husband’s Answer being struck for non-compliance, though he retained limited participatory rights.

Key Findings and Legal Analysis

1. Non-Recognition of Foreign Divorce

Justice Finlayson declined to recognize the Bahrain divorce under s. 22 of the Divorce Act due to procedural unfairness (lack of notice and the wife’s absence), preserving Divorce Act jurisdiction for corollary relief.

2. Separation Date and Marriage Duration

The court established May 5, 2022, as the separation date, based on evidence of resumed cohabitation (e.g., the husband’s visits, gifts, and 2020 purchase of the Newmarket home). This confirmed a 14-year marriage, critical for support and equalization.

3. Spousal Support under the FLA

The decision’s cornerstone is its reinterpretation of the FLA’s spousal support provisions. Prior Ontario Court of Appeal (ONCA) decisions—Rothgiesser v. Rothgiesser, 2000 CanLii 1153 (Ont. C.A.), Okmyansky v. Okmyansky, 2007 ONCA 427, and Chang v. Liu, 2017 ONCA 104 —held that “spouse” excluded former spouses, post-divorce. However, recent ONCA commentary in Vyazemskaya v. Safin, 2024 ONCA 156, and Sonia v. Ratan, 2024 ONCA 152, suggested these precedents were “ripe for reconsideration,” citing hardship and practices in five provinces (Alberta, British Columbia, Manitoba, Nova Scotia, Prince Edward Island) allowing such claims.

Justice Finlayson justified departing from ONCA precedents using Carter v. Canada, 2015 SCC 5, and Canada (Attorney General) v. Bedford, 2013 SCC 72, which permit lower courts to revisit settled rulings when new legal issues or changed circumstances arise. He identified:

• New Legal Issue: ONCA’s 2024 invitations to revisit FLA jurisprudence.
• Changed Circumstances: Evolving family law, including diverse family formations, increased mobility, and frequent foreign divorce litigation.

Applying the modern principle of statutory interpretation (Re Rizzo & Rizzo Shoes Ltd., 11998 CanLii 837 (S.C.C.)), the court expansively interpreted “spouse” in s. 29 to include former spouses, supported by:

• FLA Preamble: Emphasizes equitable settlement and mutual obligations.
• Broad Definitions: S. 29 includes those who cohabited for three years or in a relationship of some permanence if parents of a child. “Cohabit” in s. 1(1) encompasses conjugal relationships within or outside marriage, allowing former spouses to qualify based on marital cohabitation.
• Comparative Legislation: Provinces like Nova Scotia permit post-divorce support without “former spouse” in statutes, reinforcing a broad interpretation.
• Spousal Support Purposes: S. 33(8) aims to relieve financial hardship, undermined by excluding divorced spouses.
• Avoiding Constitutional Challenges: The ruling provides a statutory solution to hardships addressed in Mehralian v. Dunmore, 2025 ONSC 649, where a failed Charter challenge sought to remedy the same issue via equality rights. Rasaei’s interpretation aligns with the FLA’s remedial purpose, avoiding the need for constitutional litigation. Note: You can find my article on Mehralian HERE.

Alternatively, the parties qualified as spouses under s. 29(b) due to post-2019 cohabitation and parenthood, but the court prioritized the broader interpretation for universal applicability.

• Practice Tip: When advocating for FLA spousal support post-divorce, cite Rasaei and Mehralian to emphasize the statutory solution over constitutional remedies, strengthening arguments in both trial and appellate courts.

4. Equalization and Financial Remedies

The husband’s 2023 mortgage violated s. 21(1) of the FLA. The court awarded an equalization payment of $10,316,892.50 (after an $860,000 credit) and ordered prejudgment/postjudgment interest, reflecting his wealth (estimated income: $500,000) and misconduct.

5. Child Support and Parenting

The wife was awarded sole decision-making responsibility and primary residence for T, with child support of $3,819 monthly and $84,018 in arrears. Travel and documentation provisions favored the wife.

Red Flags: Cases Potentially Affected by Rasaei

Practitioners should review files with these characteristics for new FLA spousal support claims:

• Foreign Divorces: Divorces granted outside Canada, recognized or not.
• Domestic Divorces Without Support: Canadian divorces without spousal support orders (by agreement, oversight, or judicial decision).
• Resumed Relationships: Post-divorce cohabitation qualifying under s. 29(b).
• International Assets: Cases where a spouse transferred assets abroad to evade support obligations.
• Practice Tip: Create a checklist for file reviews, prioritizing cases with recent divorces or ongoing financial dependency. Document cohabitation evidence (e.g., shared residences, financial support) to establish s. 29 eligibility.

Implications for Ontario Family Law Practitioners

1. Expanded Spousal Support Jurisdiction:
   • Rasaei enables FLA spousal support claims post-divorce, provided no Divorce Act corollary relief order exists, eliminating the need to challenge foreign divorce validity solely for support.
   • Practice Tip: Draft pleadings to include FLA spousal support as primary or alternative relief, citing Rasaei and s. 29’s broad definition. File in the Ontario Court of Justice or Superior Court based on client resources and court availability.
2. Strategic Litigation:
   • The decision’s departure from ONCA precedents may prompt appellate review, possibly by a five-judge panel, as suggested in Vyazemskaya.
   • Practice Tip: Explicitly reference Rasaei, Vyazemskaya, and Sonia in trial submissions to preserve arguments for appeal. Prepare clients for potential delays if appellate clarification is sought.
3. Access to Justice:
   • FLA jurisdiction allows claims in the Ontario Court of Justice in non-Unified Family Court regions, simplifying access for clients with limited resources or post-divorce agreements.
   • Practice Tip: Advise clients in rural or non-Unified regions to pursue FLA claims in the Ontario Court of Justice for cost efficiency, ensuring compliance with local filing requirements.
4. Enforcement Challenges:
   • Enforcing orders against foreign assets (e.g., the husband’s Bahrain-based wealth) remains difficult, highlighting practical limitations.
   • Practice Tip: Investigate reciprocal enforcement agreements (e.g., under the Interjurisdictional Support Orders Act) and identify domestic assets (e.g., real estate, bank accounts) to secure support obligations.
5. Statutory Interpretation:
   • The expansive “spouse” definition may influence other FLA provisions (e.g., domestic contracts under ss. 35, 37). Courts may extend this approach to related contexts.
   • Practice Tip: Use Rasaei’s framework—FLA preamble, s. 33(8) purposes, and provincial trends—to argue for broad eligibility in support, property, or contract disputes.

Retroactive Effects and Limitation Periods

Rasaei raises critical questions about retroactive application to settled cases or claims previously unavailable due to restrictive case law. Under s. 2(8) of the Limitations Act, 2002, limitation periods (typically two years post-divorce for FLA support claims) may be extended if the claim was not reasonably discoverable earlier, such as when prior case law barred relief. Clients may seek to vary settlements or orders based on a fundamental mistake about spousal support availability, though courts may scrutinize such requests for fairness and finality.

Key considerations include:

• Assessing Limitation Periods: Review whether the two-year period has lapsed or if extensions apply due to Rasaei’s new legal basis. For example, a client divorced in 2020 may argue the claim was undiscoverable until 2025.
• Reopening Settlements: Settlements assuming no spousal support was possible may be challenged under contract law principles (e.g., mutual mistake), but success depends on evidence of reliance on prior law.
• Risks: Reopening cases may lead to cost awards or counterclaims, and appellate uncertainty could delay relief.
• Practice Tip: Conduct a systematic file review, prioritizing cases within two years of divorce or with grounds for limitation extensions (e.g., recent discovery of dependency). Advise clients on risks of reopening settlements, including potential appellate reversals, and document reliance on Rasaei in variation motions.

Practical Considerations

• Client Counseling: Inform clients with foreign or domestic divorces that FLA spousal support is now viable, but emphasize appellate uncertainty and enforcement risks for foreign assets. Provide written summaries of Rasaei’s impact to support informed decisions.
• Pleadings: Amend applications to include FLA spousal support claims, citing Rasaei and s. 29. Include alternative Divorce Act claims to hedge against appellate reversal.
• Evidence: Collect detailed evidence of cohabitation (e.g., joint leases, financial contributions) and dependency (e.g., income disparities) to establish s. 29 eligibility, especially for resumed relationships.
• Costs: Anticipate cost submissions in complex cases involving third parties (e.g., mortgage lenders). Adhere to court guidelines and practice directions to streamline submissions.
• Appellate Preparation: Draft pleadings and submissions to preserve Rasaei-based arguments for appeal, anticipating ONCA review. Highlight Vyazemskaya and Sonia to strengthen jurisdictional claims.

Future Outlook

Rasaei sets a progressive precedent but faces potential appellate scrutiny or legislative amendment. The ONCA may convene a five-judge panel to resolve the spousal support issue, or the legislature could amend s. 30 to explicitly include “former spouse,” as suggested in Sonia. Practitioners should monitor developments, including related Charter challenges (Mehralian v. Dunmore) and foreign divorce litigation.

Conclusion

Rasaei v. Bahman reshapes Ontario family law by expanding spousal support access under the FLA, addressing inequities and enhancing access to justice. Its statutory solution, rooted in the FLA’s remedial purpose, avoids constitutional remedies while aligning with modern family law trends. Practitioners should leverage this precedent to advocate for clients, review files for new claims, and prepare for appellate or legislative developments. By embracing Rasaei’s framework, lawyers can navigate this landmark decision to meet the evolving needs of diverse families.

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.