Gary Joseph  |  Apr 2025

This article was originally published by Law360 (www.law360.ca), part of LexisNexis Canada Inc.

Family lawyers have all experienced the frustration of advising a spouse that our courts do not have jurisdiction, either under the Divorce Act or the Family Law Act, to
grant spousal support if a valid divorce has been granted in a foreign jurisdiction. Every family lawyer must be familiar with the Court of Appeal decisions in Rothgiesser v. Rothgiesser, 2000 128 O.A.C. 302, and Okmyansky v. Okmyansky, 2007 ONCA 427. Both cases support the view that no jurisdiction to grant spousal support exists in the face of a prior valid foreign divorce.

But perhaps not so. I admire Justice Alex Finlayson of our Superior Court of Justice. He consistently tackles difficult issues and his decisions are thorough, well-researched and convincing. So too is his recent venture into the difficult issue of what to do with a party faced with a foreign divorce who needs support and is certainly entitled to support under any analysis of our jurisprudence. This entitlement exists but for the foreign divorce and the earlier Court of Appeal decisions.

Justice Finlayson’s case is Rasaei v. Bahman, 2025 ONSC 2074, a matter that proceeded as an uncontested trial after the husband’s pleadings had been struck out. The facts are lengthy (as is the decision). Cutting to the chase, the husband had obtained a divorce in Bahrain. The wife had entitlement to spousal support. With no disrespect, much of Justice Finlayson’s analysis is orbiter. You see he found that the court would not recognize the Bahrain divorce as valid under s. 22 of the Divorce Act and thus he was entitled to grant support under that Act. End of story? Not for Justice Finlayson. He then offers a scholarly analysis of the issue and ultimately concludes that even if the court had found the foreign divorce valid, he could and would have ordered spousal support under the Family Law Act. You must read the case!

In some ways Justice Finlayson’s analysis (in obiter) reminds me of Justice Mohan Sharma’s obiter in Lang-Newlands v. Newlands, 2024 ONSC 6285, wherein after finding himself bound by prior Court of Appeal jurisprudence, of which he was respectfully somewhat critical, he proceeded to write a lengthy alternative review of the law on estate freezes and their impact on a family law matter. Yes, I recognize the slightly different approach: Justice Sharma, finding himself bound, writes an alternative
theory; Justice Finlayson finds on the facts that he is not bound by the prior appeal decisions, but to much the same effect he takes on long settled law (I thought) and wrote an alternative view respectfully rejecting the earlier accepted jurisprudence. Justice Sharma’s decision is under appeal; to my knowledge, Justice Finlayson’s is not.

There is much to commend both justices for taking on these difficult issues, and their lengthy decisions should be mandatory reading for all — but really, should these important issues not be resolved through legislative initiative? If there is a legislative lacuna in the Divorce Act and/or the Family Law Act, is that not what we elect parliamentarians to do? They pass the laws; the courts interpret and apply them.

In my view, judge-made law can be problematic, especially when “made” by a trial court. The views of Justice Sharma or Justice Finlayson as noted above are well reasoned and compelling but not binding on their fellow trial justices. They are thought-provoking, but it is just as possible that a fellow member of the Superior Court could write a decision equally compelling finding the opposite?

I am reminded of the dispute that raged over the extent of penalties available to be imposed under Family Law Rule 1(8) for breach of a court order. It took a Rules Committee recommendation and an amendment to the Rule to resolve the varied opinions of several Superior Court Justices who weighed in on the issue. Until this occurred, family law counsel were adrift between competing views of the issue. This spells trouble and expense for family law litigants. Such clients need certainty and easily applicable rules so that matters can be resolved without lengthy litigation. We need our lawmakers to step up and legislate where needed to spare our courts having to decide issues that legislation (or amendments to the Family Law Rules) could easily resolve. Five other provinces have amended their provincial legislation to permit former spouses to apply. Why not Ontario?

Finally, read both decisions (Justice Sharma’s and Justice Finlayson’s), as I have, and consider the amount of time and effort that went into writing both. Think about the extreme shortage of judicial resources and the backlogs in our courts

Gary S. Joseph is counsel to the firm of MacDonald & Partners LLP. A certified specialist in family law, he has been reported in over 350 family law decisions at all court levels in Ontario and Alberta. He has also appeared as counsel in the Supreme Court of Canada. He is a past family law instructor for the Law Society Bar Admission Course and the winner of the 2021 OBA Award for Excellence in Family Law.

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