Mehralian v. Dunmore, 2025 ONSC 649

COURT FILE NO.: FS-21-24032
DATE: 2025-02-03
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Raha Mehralian, Applicant
– and –
Michael Paul Dunmore, Respondent

Anthony Macri, for the Applicant
Michael Stangarone and Meghann Melito, for the Respondent
Josh Hunter and Elizabeth Guilbault, for the intervenor Attorney General of Ontario
Fareen Jamal and Fadwa Yehia, for the intervenor Canadian Council of Muslim Women
Archana Medhekar, for the intervenor Barbra Schlifer Commemorative Clinic

HEARD: September 10-11, 2024
Mathen, J.

INTRODUCTION

[1] The Applicant, Raha Mehralian (“Applicant”, “Ms. Mehralian”), challenges s. 29 of the Ontario Family Law Act, R.S.O. 1990, c. F.3 (“Family Law Act”), and the judicial interpretation of s. 4 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp) (“Divorce Act”) as violating s. 15 of the Canadian Charter of Rights and Freedoms (“Charter”).

[2] In 2015, Ms. Mehralian married the Respondent, Michael Paul Dunmore (“Respondent”, “Mr. Dunmore”), in a civil ceremony in Japan. After living in several countries, the couple settled in Oman where they underwent a Muslim marriage ceremony. In 2022, the Respondent obtained a religious divorce in Oman that an appellate court in that country upheld. This Honourable Court subsequently found that the Applicant was no longer entitled to sue for spousal support in Ontario. The Court of Appeal for Ontario dismissed the Applicant’s appeal of that finding. She now argues that her disentitlement from support discriminates against her contrary to section 15 of the Charter and that this discrimination is not saved by section 1.

[3] Ms. Mehralian’s Notice of Constitutional Question states a claim based on marital status. However, her argument relies on additional prohibited grounds of discrimination, including sex and religion.

[4] Mr. Dunmore argues that this motion is a collateral attack on prior court rulings. Mr. Dunmore says, further, that the Applicant has not established a sufficient evidentiary basis for her claim; that the impugned provisions create no distinction on the basis of marital status; that if it does any such distinction is not discriminatory; and that if it is any discrimination is saved by section 1. Mr. Dunmore says that the Applicant and non-governmental intervenors allege discrimination based on grounds that are not properly before this court.

[5] The intervenor Attorney General of Ontario (“Ontario”) largely agrees with Mr. Dunmore’s arguments. It opposes deciding this constitutional issue in advance of a trial. It argues, as well, that the province’s decision to exclude spousal support claims by foreign divorcees is a valid choice that respects the division of powers. Ontario says that “deferring to a distinction drawn by the Constitution itself cannot be discriminatory.”

[6] According to the Court of Appeal for Ontario, the wholesale exclusion from spousal support of persons subject to valid foreign divorces is a source of “hardship” for those persons. The court has said that the jurisprudence supporting that exclusion may be due for reconsideration: Vyazemskaya v. Safin, 2024 ONCA 156, para 44.

[7] Under the Constitution, an individual need not wait for a legislature or a court to act before seeking to vindicate their rights through judicial review. Such review, however, requires relevant arguments and a suitable evidentiary record.

[8] In this case, the Applicant’s claim does not meet that threshold.

[9] First, I am persuaded that this motion is a collateral attack on a court ruling that led to her temporary spousal support order being stayed. Ms. Mehralian did not exhaust the available routes for appeal of that ruling. Instead, on this Charter motion, Ms. Mehralian asks the court to reinstate the temporary order.

[10] Second, Ms. Mehralian’s arguments go beyond her Notice of Constitutional Question. The Notice states an intention to bring a section 15 claim based on marital status discrimination. However, the majority of the discrimination arguments, whether advanced by the Applicant or the intervenors who support the challenge, are not about marital status. The arguments focus more on the experiences of Muslim women, or, in section 15 terms, on the prohibited grounds of sex and religion, as well as immigration and a separate ground referred to as “migrant status”.

[11] Third, because of the Applicant’s reliance on those additional grounds of discrimination, she devotes little attention to marital status itself. In particular, Ms. Mehralian does not engage with the question of whether being divorced is a form of marital status at all.

[12] Finally, Ms. Mehralian’s factual assertions lack appropriate evidence. This frailty extends to some of the intervenors’ arguments as well. While a lack of social science or expert evidence should not automatically doom a Charter case, where a particular claim depends on certain facts, those facts must be proved not assumed.

BACKGROUND

[13] The following summary draws from an agreed statement of facts.

[14] Ms. Mehralian, who is Iranian, was a Canadian Permanent Resident when she initiated these legal proceedings. She has since obtained Canadian citizenship. Mr. Dunmore is a Canadian citizen and lawyer who has largely worked outside of Canada.

[15] The parties married in Japan in 2015 and lived in several countries before Mr. Dunmore accepted a job in Oman in 2018. In March 2020, the parties visited Mr. Dunmore’s family in Ontario. The COVID-19 pandemic prevented their return to Oman for a time. Their son was born in Canada in late 2020.

[16] The parties returned to Oman in January 2021, and, in February of that year, underwent a religious marriage at the Iranian embassy. They disagree on the reason for this second ceremony.

[17] The parties returned to Toronto in April 2021. They separated on May 31, after Ms. Mehralian accused Mr. Dunmore of an incident of domestic violence. In June 2021, they each initiated divorce proceedings: Mr. Dunmore in Oman and Ms. Mehralian in this court. With some exceptions, the parties have participated fully in the proceedings in both jurisdictions.

[18] On November 9, 2021, this court issued a temporary order, on consent, for combined child and spousal support of $7500 per month (“Kimmel order”).

[19] On November 16, 2021, the Primary Court of Oman found that it did not have jurisdiction to hear Mr. Dunmore’s divorce petition. The Respondent appealed to the Oman Court of Appeal. Ms. Mehralian did not participate in that appeal.

[20] On December 19, 2021, Mr. Dunmore travelled to Oman and requested a divorce from a notary. A Notary Divorce Certificate was issued on or about February 27, 2022. The parties disagree about whether Ms. Mehralian had effective notice of this process. They also disagree on whether the divorce was an Islamic talaq divorce, which a husband can issue unilaterally.[^1]

[21] In March 2022, the Oman Court of Appeal remitted the divorce back to the Primary Court for reconsideration. Both parties participated in the subsequent proceeding, and in May 2022, the Primary Court held that the Omani divorce was valid and awarded primary custody of the child to Ms. Mehralian. The parties each appealed – Ms. Mehralian on the validity of the divorce and Mr. Dunmore on custody. Both appeals were dismissed in early 2023.

[22] Mr. Dunmore then brought motions in this court to have the Oman divorce recognized in Ontario and to have the child returned to Oman. On February 15, 2023, Justice Myers found that the Omani divorce was valid (“Myers order”), in part because Ms. Mehralian had attorned to Oman’s jurisdiction. On May 1, 2023, Justice Brownstone found that the child was habitually resident in Ontario and declined to send him to Oman (“Brownstone order”). On December 6, 2023, in a single ruling, the Court of Appeal for Ontario dismissed the parties’ respective appeals.

[23] On February 20, 2024, Justice Shore stated that because the Omani divorce had been found valid in Ontario, the Applicant was no longer eligible to receive the temporary spousal support in the Kimmel order. Instead, she could receive only $2808 in child support (“Shore order”). Justice Shore mentioned that the Applicant was now pursuing a Charter challenge based on marital status discrimination.

[24] Ms. Mehralian filed a Notice of Constitutional Question a few days after the Shore order. She did not seek to further appeal the Court of Appeal for Ontario’s ruling on the validity of the Omani divorce. Conversely, Mr. Dunmore did obtain leave to appeal the ruling on the Brownstone order. On December 9, 2024, the Supreme Court of Canada heard and dismissed his appeal with reasons to follow: Dunmore v. Mehralian.

[25] On April 2, 2024, Justice Shore granted intervenor status to the Canadian Council of Muslim Women (“CCMW”), and, provisionally, the Attorney General of Canada (“Canada”) and Attorney General of Ontario. Justice Shore granted the Barbra Schlifer Commemorative Clinic (“Schlifer Clinic”) leave to apply for intervenor status.

[26] On April 29, 2024, Ontario confirmed that it would intervene.

[27] On May 6, 2024, Canada advised the court that it would not intervene.

[28] On May 28, 2024, the Schlifer Clinic obtained leave to intervene.

RELEVANT LAW ON MARRIAGE AND FOREIGN DIVORCE

Division of Powers

[29] The Constitution Act, 1867, 30 & 31 Vict, c. 3, grants Parliament jurisdiction over “Marriage and Divorce”: s. 91(26). Under this head of power, Parliament has enacted the Divorce Act which, inter alia, governs who may marry and divorce in Canada.

[30] In addition to the bare question of eligibility for marriage and the conditions for obtaining a divorce, Parliament’s jurisdiction includes the ancillary power to grant “corollary relief”, including spousal support, to persons seeking a divorce: Jackson v. Jackson.

[31] Under the division of powers, the provinces enjoy jurisdiction over spousal support pursuant to their section 92(13) enumerated power over “property and civil rights”. For decades after Confederation, provincial laws governed virtually all of the obligations upon marriage breakdown such as the obligation to support dependent spouses of children. That de facto exclusivity ended when Parliament enacted the Divorce Act in 1968.

The Divorce Act and Federal Common Law

[32] The federal Divorce Act sets out criteria for obtaining a divorce in Canada, tests for obtaining corollary relief such as spousal support, and the status of a divorce granted outside Canada. The legislation also preserves common law rules, particularly on the subject of foreign divorces.

Divorces granted in Canada

[33] In order to obtain a divorce in Canada, at least one spouse must have been resident in the country for at least one year prior to their application: Divorce Act, s. 3(1).

[34] A person who seeks a divorce is entitled to claim spousal support. Under section 4(1) of the Divorce Act, a court in any 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 court’s jurisdiction.

[35] Support orders made under the Divorce Act are to consider inter alia “the condition, means, needs and other circumstances of each spouse”: Section 15.2(4). Subparagraph 6 of the same section states that such orders are intended to:

a. recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
b. apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
c. relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
d. in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

[36] Where there is an order for corollary relief including spousal support, the Divorce Act allows for its variation: Section 17(1). Section 5(1) permits a court in a province to hear and determine a variation proceeding on the same basis as in 4(1), that is, if one party is habitually resident there, or if the parties consent.

Divorces Granted Outside Canada

[37] Section 22(1) of the Divorce Act recognizes foreign divorces where the divorce is granted by a competent authority and either former spouse was habitually resident in the foreign jurisdiction for at least one year preceding the commencement of divorce proceedings.

[38] Section 22(3) states that nothing in section 22 “abrogates or derogates from any other rule of law respecting the recognition” of foreign divorces. This includes common law rules, which are rooted in the principle of comity. In modern times, comity meets the need “to facilitate the flow of wealth, skills and people across state lines in a fair and orderly manner”: Morguard Investments Ltd. v. De Savoye.

[39] Originally, the common law rule for recognition of a foreign divorce was based on domicile in a foreign country: Le Mesurier v. Le Mesurier [1895] A.C. 517. Eventually, courts came to focus on the existence of a “real and substantial connection” to the foreign jurisdiction: Indyka v. Indyka, [1967] 3 W.L.R. 510. The real and substantial connection test is now well-established in Canada: Beals v. Saldanha, 2003 SCC 72, para 32.

[40] In 2024, the Court of Appeal for Ontario stated the following alternative bases for recognition of foreign divorces:

a. jurisdiction was assumed on the basis of the domicile of the spouses;
b. the foreign divorce, though granted on a non-domiciliary jurisdictional basis, is recognized by the law of the domicile of the parties;
c. the foreign jurisdictional rule corresponds to the Canadian jurisdictional rule in divorce proceedings;
d. the circumstances in the foreign jurisdiction would have conferred jurisdiction on a Canadian court had they occurred in Canada;
e. the petitioner or respondent had a real and substantial connection with the foreign jurisdiction wherein the divorce was granted; or
f. the foreign divorce is recognized in another foreign jurisdiction with which the petitioner or respondent has a real and substantial connection.

(Sonia v. Ratan, 2024 ONCA 152, para 22)

[41] In its ruling involving the parties to this motion, the Court of Appeal for Ontario held that where someone attorns to the adjudication of a divorce on the merits, it is not necessary to perform a “real and substantial connection” analysis: Mehralian v. Dunmore, 2023 ONCA 806, para 30.

[42] A party who seeks to prevent recognition of a foreign divorce can try to establish a “defence” to that recognition such as fraud, public policy, lack of natural justice, and unfair forum shopping. The defences are intentionally narrow in order to respect the principle of comity.

[43] In the within motion, Ms. Mehralian does not challenge the validity of the Omani divorce.

[44] Ontario courts have interpreted the Divorce Act as precluding a former spouse subject to a valid foreign divorce from seeking spousal support in Ontario: Rothgiesser v. Rothgiesser, para 26; Okmyansky v. Okmyansky, 2007 ONCA 427, para 2; and Cheng v. Liu, 2017 ONCA 104, paras 27-30.

[45] In Okmyansky, the Court of Appeal for Ontario held that “corollary relief” under the Divorce Act is incidental to a divorce granted by a Canadian court. The court found that, through section 4, Parliament intended to permit spouses who moved within Canada to litigate corollary relief in a province other than where a divorce was initially granted – not to confer on courts the jurisdiction to grant such relief after a foreign divorce.

[46] Nothing in the Divorce Act explicitly disentitles a person subject to a foreign divorce from applying for spousal support. The Applicant points out that in Quebec, a person subject to a valid foreign divorce who is ordinarily resident in the province may seek spousal support: Okmyansky v. Okmyansky, 2007 ONCA 427, para 40.

[47] Nor does the Divorce Act explicitly disentitle former spouses from receiving support under provincial legislation. Four provinces–Alberta, British Columbia, Manitoba, and Prince Edward Island–include “former spouses” among those who may sue for support.

Ontario Legislation

[48] The Ontario Family Law Act generally defines a “spouse” as either of two persons who are married to each other or who, in good faith, have entered into a void or voidable marriage: s. 1(1). In some contexts, “spouse” includes unmarried cohabiting partners: s. 29.

[49] Where a divorce proceeding is commenced under the federal Divorce Act, section 36(1) of the Family Law Act states that any support application under Ontario law that has not yet been adjudicated is stayed unless the court orders otherwise.

[50] The within motion involves so-called “former spouses” – that is, formerly married persons who have divorced. Former spouses may apply for relief under Part I of the Act, which deals with family property, but not under Part III, which deals with spousal support.

[51] The Court of Appeal for Ontario has ruled that there is no jurisdiction under the Family Law Act to grant spousal support to a former spouse: Rothgiesser; Okmyansky. The Court of Appeal has said excluding such persons from the province’s spousal support regime can cause hardship: Vyazemskaya, at para. 44.

[52] In its submissions, Ontario affirmed that where a foreign divorce is recognized as valid, a former spouse is disentitled to claim spousal support. Ontario says that by not including within its spousal support regime persons who are validly divorced outside Canada, Ontario is respecting the division of powers and principles of comity.

[53] The question before the court, in part, is whether the “hardship” noted by the Court of Appeal in Vyazemskaya rises to the level of a constitutional violation.

ANALYSIS

[54] In the following analysis, I first consider two procedural objections from the Respondent and Ontario: one based on the collateral attack rule, and one based on the Notice of Constitutional Question. Then, I turn to the substance of the Applicant’s Charter claim.

Is the Applicant’s Motion a Collateral Attack?

[55] Both Ontario and the Respondent argue that the Applicant’s constitutional challenge is a pretext for resuscitating her claim for spousal support.

[56] Ontario argues that the Applicant’s motion is “a collateral attack on this Court’s recognition of the parties’ foreign divorce.” The recognition of the foreign divorce means that Ms. Mehralian is not entitled to an order for spousal support. Ontario says that Ms. Mehralian should have exhausted the avenues for attacking that recognition, including applying for leave to the Supreme Court of Canada.

[57] The Respondent, Mr. Dunmore, says this motion is Ms. Mehralian’s fifth challenge to the Omani civil divorce. He argues that Ms. Mehralian has not explained “why over two years later she now seeks to raise Charter concerns over the very same issues which have been before the Court since 2021.”

[58] The collateral attack rule provides that “a judicial order pronounced by a court of competent jurisdiction should not be brought into question in subsequent proceedings except those provided by law for the express purpose of attacking it.”: Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, para 20.

[59] There are reasons to conclude that this motion is indeed a collateral attack.

[60] First, it is well-known that, in Ontario, individuals subject to a foreign divorce are not entitled to sue for spousal support, which creates some hardship: Vyazemskaya at para. 43.

[61] In other words, the impact on the Applicant of a finding that the Omani divorce is valid was readily foreseeable. She could have framed her initial pleadings as such, sought leave to amend them or initiated an application to challenge that negative impact as a breach of her Charter rights. She did none of those things.

[62] The second, more telling reason is the unusual nature of the Applicant’s requested remedy.

[63] The Applicant has challenged legislation and judicial interpretation of legislation. Among other things, she asks for:

a. “a declaration under s. 24 of the Charter that the current wording of s. 29 of the FLA violates the Charter and … that it be stricken down, or alternatively that the word ‘former spouse’ be included in the definition of spouse.”
b. “[a declaration] that the interpretation of s. 4 of the DA violates s. 15 of the Charter and that…s. 4 should be read to include former spouses who are divorced in another jurisdiction.”
c. “[that] the original support order of Justice Kimmel dated November 9, 2021, be reinstated and that child and spousal support of $7500 per month be effective again as of March 1, 2023.”

[64] For the above remedies, the Applicant’s factum cites section 24(1) of the Charter, which grants relief for “unconstitutional acts” perpetrated on individuals: R. v. Albashir, 2021 SCC 48, para 62. However, the proper remedial tool for the two declarations she seeks, which include declarations of invalidity and the remedy of “reading in”, is section 52 of the Constitution Act, 1982 which states in part:

52 (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

[65] While courts can combine remedies under section 52 of the Constitution Act, 1982 and section 24 of the Charter, one would expect to see an argument for why that is justified: Canada (Attorney General) v. Power, 2024 SCC 26. The Applicant did not offer one. Indeed, she did not invoke section 52 until the hearing.

[66] Ms. Mehralian says that she no longer challenges the validity of the Omani divorce. However, she brings this motion in part to reinstate a prior temporary support order which was stayed after the Court of Appeal for Ontario upheld that divorce’s validity. Unlike Mr. Dunmore, Ms. Mehralian did not seek to appeal that appellate ruling to the Supreme Court of Canada.

[67] Ms. Mehralian seeks to resurrect her prior spousal support order while bringing a challenge to legislation. She provides no authority for the proposition that, under section 52 of the Constitution Act, 1982, a court may reinstate court orders pertaining to an individual. Nor does she explain whether and how such an order fits within the remedies ordinarily available under section 24 of the Charter.

[68] I add that the Applicant’s request to reinstate a prior court order likely involves deciding whether any declaration of invalidity granted by this court would have a prospective, retroactive, or retrospective effect: Canada (Attorney General) v. Hislop, 2007 SCC 10. The Applicant did not offer any assistance about the effect a declaration of invalidity would have, including on other cases involving foreign divorces.

[69] The procedural history of this matter, including the unusual remedy, persuades me that this motion is actually a collateral attack on prior court rulings for which Ms. Mehralian did not exhaust available grounds of appeal.

[70] Therefore, the motion should be dismissed. However, for completeness, I will explain why, even if this motion is not a collateral attack, it cannot succeed. I begin with whether the Applicant’s arguments properly reflect the Notice of Constitutional Question.

[The remainder of the judgment continues with detailed legal analysis, findings, and the order, as in the original text.]

[^1]: For a definition, see Yousef Wahb, “Faith-Based Divorce Proceedings: Alternative Dispute Resolutions for Canadian Muslims”, Canadian Family Law Quarterly 40, no.2 (2022): 111.

Released: February 3, 2025

Note:
Several of the thirty-one cases referenced by the Applicant are listed more than once, including Sonia v. Ratan (2022 ONSC, 2024 ONCA); Vyazemskaya v. Safin (2021, 2022 ONSC, 2024 ONCA); Abraham v. Gallo (2022 ONSC, 2022 ONCA); Antonyuk v. Antonyuk (2020 ONSC, 2021 ONCA); Nozikova v. Lyzo (2019 ONSC, 2019 ONCA).