COURT FILE NO.: FC-23-1248-00

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Mojgan Rasaei, Applicant
and
Ahmed Haji Abdulrahman Bahman, Respondent

Shahram Sean Bahmadi, for the Applicant
On his own behalf

Heard: November 18, 19, 20, 21 and 22, 2024, January 21, 2025 and March 24, 2025
Justice Alex Finlayson

PART I: OVERVIEW

1This 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.

2One 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 (2nd 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.

3Had 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 usually¹ 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.

4The 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.

5For 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.

6As 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.

7Some 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.

PART II: BACKGROUND

A. Relationship Facts

8The 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.

9The 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.

B. The Date of Separation and the Foreign Divorce

10The 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.

C. The Husband’s Position About the Date of Separation and the Foreign Divorce

11The 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.

12Five 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.

D. The Wife’s Position About the Date of Separation and the Foreign Divorce

13The 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.

14For example, while the husband left Ontario, he travelled back here many times. Other examples included 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.

E. The Husband’s Depletion of the Equity in the Newmarket Home and the Court Case for a Divorce in Bahrain

15In 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.

16The 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.

PART III: THE PRIOR PROCEEDINGS

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

18After 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, RSO 1990, c L.5, as amended.

19In 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.

20The 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.

PART IV: THE CONDUCT OF THIS TRIAL

21This 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.

22Rule 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.

23At 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.

24Notably 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.

PART V: FINDINGS OF FACT AND CONCLUSIONS ON ALL ISSUES

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

(a) The separation document signed on June 28, 2019 does not have any significant impact on any of the wife’s claims. If necessary, it is also set aside;

(b) The foreign divorce is not recognized by this Court;

(c) The date of separation and the valuation date for the purposes of a Canadian divorce and equalization of net family property, and to be used to calculate the length of the marriage for spousal support, was May 5, 2022. This was a 14-year marriage;

(d) As a result of this Court’s finding that the date of separation was May 5, 2022, and as a result of the Court’s decision not to recognize the foreign divorce, the Newmarket property was a matrimonial home when the husband encumbered it. The property was ordinarily occupied by the parties as a family residence at the time of the separation: see section 18(1) of the Family Law Act;

(e) While I was unable to make this finding at the time of the summary judgment motion, I am now able to find that the husband was not entitled to encumber it in mid-2023 without the wife’s consent: see section 21(1) of the Family Law Act. He did not obtain her consent. Instead, he misrepresented his marital status on several real estate and financing documents to obtain the mortgage, without notice to her;

(f) The husband’s egregious actions have caused the wife and the child financial harm;

(g) The matrimonial home was the only available asset in Canada to satisfy the wife’s claims. I heard no other evidence during this trial of any other significant assets or income of the husband’s, in Canada. In contrast, the wife’s evidence at the summary judgment motion and now at this trial, which I accept, is that he is an extremely wealthy man. His wealth is situated abroad, mostly in Bahrain. The wife has been left to service the TELB mortgage on her own, and to support herself and Tiba on her own;

(h) The Court has calculated the equalization payment owing to the wife, determined the husband’s income and calculated child and spousal support. The Court has also made parenting Orders. Those orders are set out below. The financial analysis was undertaken based on the husband’s disclosures to TELB, when he obtained the mortgage and depleted the equity from the matrimonial home. The Court had no other choice to proceed on that record, given that the husband failed to provide properly sworn financial statements, other reliable evidence as to the value of his assets and liabilities on the date of marriage and the valuation date, and other reliable evidence as to his income. Likewise, the wife’s alternative evidence about equalization and the husband’s income was not reliable. Some of it was not even admissible; and

(i) The sheer size of the equalization payment, if it is paid, will fully satisfy the wife’s entitlement to spousal support. But I have no confidence that the husband will pay it, nor that the wife will be able collect it, at least not without much effort on her part. I heard no evidence about the law of Bahrain (or of other jurisdictions where the husband’s assets may be situated) respecting enforcement. Therefore, the spousal support award will continue until the equalization payment is fully paid. I have concerns that the husband will not pay spousal support either, without much enforcement efforts on her part (to the extent enforcement remedies exist in the applicable jurisdictions abroad).

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

PART VI: THE JURISDICTION TO AWARD SPOUSAL SUPPORT UNDER THE FAMILY LAW ACT AFTER A DIVORCE

A. The Existing Case Law

27At 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.

(1) Rothgiesser v. Rothgiesser

28Following 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.

29The 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.

30Between 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

31The 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.

32Regarding 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.

(2) Okmyansky v. Okmyansky, 2007 ONCA 427

33Like 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.

34But 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.

(3) Chang v. Liu, 2017 ONCA 104

35Like the previous two decisions, Chang 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.

36At ¶ 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.

37It 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.

B. Whether the Existing Case Law is “Ripe for Reconsideration”

38Each 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.

39Vyazemskaya 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.

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

[42] As discussed earlier, it is settled law in Canada that following a foreign divorce, a party cannot seek spousal support under the Divorce Act. It is also settled law in Ontario that a former spouse cannot seek support under the Family Law Act: Rothgiesser, at para. 26; Okmyansky, at para. 42; Chang, at paras. 27-30. It is noteworthy that in five other provinces, former spouses can seek spousal support under the applicable provincial legislation.

[43] There can be no doubt that the present state of the law in Ontario can result in significant hardship for spouses or former spouses in need of support.

[44] Neither the court below, nor this court, was asked to reconsider this court’s present interpretation of the Family Law Act provisions prohibiting a former spouse from claiming support following a foreign divorce. That case law may well be ripe for reconsideration, but this case can be properly decided on the basis that it was argued.

41Similarly, 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.”

C. Applicable Legal Principles Concerning Vertical Stare Decisis

42This 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.

43Perhaps 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.

44Vertical 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

45But 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.

D. Vertical Stare Decisis Should Not Be Applied in this Case

46The 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. 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.

47Then 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. Ratan, 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.

48I 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.

49I say this for the following seven reasons:

(a) The statutory obligation to support one’s spouse in the Family Law Act gets created upon certain kinds of relationships forming, not because of the later breakdown of such relationships, or their termination by way of a divorce. The statutory support obligation is not discharged upon a foreign divorce; dependencies and hardships may very well continue to ensue. To exclude persons from being able to claim support under provincial legislation, when they would have otherwise been entitled to it, but for a foreign, or even a domestic divorce, is not consistent with the overall purpose of the legislation, or with the specific statutory purposes of spousal support in particular;

(b) The previous decisions did not analyze the specific statutory provisions in the Family Law Act in much detail. The statutory definition of “spouse” and “cohabit” in sections 1(1) and 29 are sufficiently broad to include former spouses;

(c) Five other provinces permit former spouses to claim spousal support after a divorce. Not all of those provinces contain the words “former spouse” in their legislation. In any event, the legislation in other provinces may be helpful to identify patterns or trends;

(d) The exclusion of a divorced person from the categories of persons who can claim spousal support has become unworkable. There have been unintended consequences, that have caused confusion in the law. Unworkability or unintended consequences can be an indication that the legislature’s intention was not that which is reflected in the existing case law: see R. v. Kirkpatrick ¶ 262;

(e) There are no division of powers or paramountcy concerns if a court orders support under the Family Law Act, provided a Divorce Act support order is not made;

(f) A new interpretation of the Family Law Act promotes access to justice; and

(g) Rothgiesser v. Rothgiesser, and then Okmyansky v. Okmyansky applied a restrictive interpretation of the Family Law Act regarding spousal support. At the same time, Okmyansky v. Okmyansky and some other decisions that came after it, continuing with Chang v. Liu, interpreted the Family Law Act expansively, when it came to claiming other statutory remedies after a foreign divorce. The law has evolved to the point that provided no Divorce Act corollary relief orders have been made, claims for parenting orders and child support have been permitted under provincial legislation. Equalization payments can be pursued too, notwithstanding a foreign divorce. For all of the above reasons and in light of the commentary made in the two recent, 2024 decisions, a carve out for spousal support is no longer justifiable in my view.

[The remainder of the judgment continues with detailed statutory analysis, comparative law, and the court’s orders, as in the original text.]

PART VIII: ORDERS

107I make the following Final Orders:

Pursuant to the Divorce Act:

(a) The Court does not recognize the Bahrain divorce;

(b) The child, Tiba, shall reside with the wife;

(c) The wife shall have sole decision-making responsibility of Tiba;

(d) The wife may apply for a passport for Tiba, and for any government documentation, without the husband’s consent or signature;

(e) The wife may travel out of Canada with Tiba, without the husband’s travel consent;

(f) Tiba shall not be removed from Canada by the husband, without the wife’s consent;

(g) If the husband seeks parenting time and the parties cannot agree, or for example if he seeks to travel with the child out of Canada and the parties cannot agree, then the husband will have to bring an application in this Court on notice to the wife, and the matter will be dealt with in due course;

(h) The husband may have virtual or phone contact with Tiba, such as over Zoom or WhatsApp or by other similar means;

(i) Commencing on July 1, 2023 and on the first of each month thereafter, the husband shall pay child support to the wife, for the child Tiba, in the sum of $3,819.00 per month. This sum is based on the Court’s determination of the father’s annual income of $500,000.00;

(j) Based on the aforementioned Order, the father’s child support arrears for the period July 1, 2023 to April 1, 2025 are fixed at $84,018.00 (i.e. $3,819.00 per month x 22 months).

(k) Commencing on May 1, 2025 and on the first of each month thereafter, the husband shall pay to the wife spousal support in the amount of $13,302.00 per month. Spousal support shall terminate when the equalization payment set out below, is paid in full. The Court’s DivorceMate Calculation is attached as Schedule “A” to this partial written judgment;

Pursuant to the Family Law Act:

(l) The husband shall pay to the wife an equalization payment of $11,716,892.50, less a credit for an advance payment made of $860,000.00 as a result of the vesting Order of Jarvis J. dated April 17, 2024. Therefore, the remaining amount that the husband shall pay to the wife, is $10,316,892.50;

Prejudgment Interest Pursuant to the Courts of Justice Act

(m) The husband shall pay to the wife, prejudgment interest at the rate of 7.5% per annum, on the sum of $1,290,000.00 of her equalization payment, for the period from May 5, 2022 to the date of this Judgment;

(n) The husband shall pay to the wife prejudgment interest at the rate of 4.8% per annum, on the balance of the equalization payment. That balance was $9,886,892.50 (i.e. $11,176,892.50-$1,290,000.00). Prejudgment interest at 4.8% on that sum shall be calculated for the period May 5, 2022 to April 17, 2024, when the vesting Order was made;

(o) The husband shall then pay prejudgment interest at the rate of 4.8% from April 18, 2024 to the date of this Judgment, on the remaining sum of the equalization payment of $9,026,892.50 (i.e. $9,886,892.50 – the advance payment of $860,000.00);

(p) The wife’s counsel claimed prejudgment interest on child support. If the wife wishes to undertake 22 different prejudgment interest calculations on each child support accrual commencing July 1, 2023 through April 1, 2025, to the date of this Judgment, using the prejudgment interest rate of 4.8%, she may do so for the Court’s consideration;

(q) The wife shall serve the husband with her prejudgment interest calculations for the above amounts based on the terms set out above, when she serves her written costs submissions. The husband may respond to the wife’s calculations if he wishes, when he serves any written submissions about costs;

(r) The Court shall review the calculations about interest, and fix the amount of prejudgment interest that the husband owes the wife;

Postjudgment Interest Pursuant to the Courts of Justice Act

(s) The husband shall pay postjudgment interest at the rate of 7.5% on the sum of $1,290,000.00 of the total equalization payment;

(t) The husband shall pay postjudgment interest at the usual applicable rate on the balance of any monies owing to the wife pursuant to this Judgment;

Costs

(u) The Court shall deal with costs in writing;

(v) A copy of this partial written Judgment shall be supplied to Sean N. Zeitz and Jakob Bagacki, counsel for TELB at the Summary Judgment Motion, as well as to Eunice Machado, counsel for the Ministry of the Attorney General, who represented the Director of Land Titles;

(w) On or before April 18, 2025, TELB and the Director of Land Titles may serve and file written submissions about costs of the summary judgment motion if they wish. Their submissions shall be limited to 3 pages, double spaced, and may be accompanied by a Bill of Costs and any Offers to Settle. Case law need not be provided, but may be hyperlinked in the written submissions;

(x) On or before May 9, 2025, the wife may serve and file her written submissions. She will be given 3 pages, double spaced, to address the summary judgment motion, and 3 pages, double spaced, to address the costs of this proceeding. There should be separate Bills of Costs in connection with the summary judgment motion and with this costs of the proceeding. Likewise, she should attach any Offers to Settle. Case law need not be provided, but may be hyperlinked in the written submissions;

(y) On or before May 30, 2025, the husband may serve and file his written submissions. His written submissions are subject to the same restrictions on length and content as the wife’s;

(z) The Court reserves the right to schedule an attendance to deal with costs, or the outstanding interest calculations;

Transcript

(aa) The Court shall order a transcript of the partial oral reasons for Judgment. Copies shall be supplied to Mr. Bahmadi for the wife, and to the husband directly. A copy shall be placed in the Court file to remain alongside this partial written Judgment;

Divorce

(bb) Within 30 days, the wife shall complete the divorce on an uncontested basis. The divorce material shall be directed to my attention in chambers at the same time as the wife files her costs submissions; and

Other

(cc) The wife’s counsel may prepare the draft Order and submit it to my attention for review and to be issued. Counsel need not obtain the husband’s approval as to form and content before doing so.

Justice Alex Finlayson

Footnotes

1. 1I say usually, because in the unusual circumstances of this case, there was some resumed cohabitation after the foreign divorce, and the parties are the parents of a child together.
2. 2Further details about what happened are set out in earlier Reasons for Decision that I delivered on May 27, 2024, following a Summary Judgment Motion that I heard in this case: see Rasaei v. Bahman, 2024 ONSC 2987 (the “Summary Judgment Reasons”).
3. 3By the time the summary judgment motion came on before me, the wife decided to abandon her claim to set aside the mortgage, but she still pursued her request for compensation from the Fund.
4. 4The amended version of section 4 section as it stood at the time of the Rothgiesser appeal decision, provided that a court in a province has jurisdiction to hear and determine a corollary relief proceeding if (a) either former spouse is habitually resident in the province at the commencement of the proceeding; or (b) both former spouses accept the jurisdiction of the court.
5. 5R. v. Kirkpatrick was a 5-4 decision of the Supreme Court. In that decision, the Supreme Court considered whether one of its previous decisions was binding on it, and if so, whether to depart from that. The majority decided the issue, by distinguishing the previous decision, and specifically by interpreting the scope of the previous decision more narrowly. The minority was critical of that approach. It chose to embark upon an analysis as to horizontal stare decisis at the ‘apex court’ or Supreme Court level, to consider the applicability of the previous precedent. Although the ratio of the minority’s analysis is not applicable to the issue that confronts this Court, the minority decision has a helpful explanation about the law of stare decisis generally, and not just horizontal stare decisis at the Supreme Court level.