Court File and Parties

Court File No.: FS-25-00048500-0000

Date: 2026-02-13

Ontario Superior Court of Justice

Between:

SHAHIN AHMADI, Applicant – and – ABDOLREZA TOFANGDARFARD (Deceased) and MOJGAN HASSANPOUR BIRGANI, Respondents

Counsel:

Ash Mazinani, for the Applicant

Hossein Niroomand, for the Respondent Mojgan Hassanpour Birgani

Heard: February 12, 2026

Endorsement

DIAMOND J.:

[ 1 ] The Applicant Shahin Ahmadi ('Shahin') was married to the Respondent Abdolreza Tofangdarfard (Abdolreza) from 1976 until Abdolreza's death on March 7, 2024. Shahin and Abdolreza had three children together, all of whom are now independent adults.

[ 2 ] During Shahin and Abdolreza's marriage, Abdolreza entered into a religious marriage of convenience with the Respondent Mojgan Birgani ('Mojgan') in Iran. The religious marriage certificate is dated May 11, 2016.

[ 3 ] Shahin submits that Abdolreza had an extra-marital affair with Mojgan. For her part, Mojgan claims that she and Abdolreza lived continuously in Toronto from 2019 until Abdolreza's passing. As such, Mojgan claims to be a common law spouse as that term is defined under Part III of the Family Law Act, R.S.O 1990, c.F.3.

[ 4 ] Shahin commenced this application on March 25, 2005, seeking, inter alia, the following relief:

a) an order declaring the marriage between Abdolreza and Mojgan to be void due to a failure to comply with section 8 of the Marriage Act R.S.O. 1990, c.F.3; and,

b) an order annulling the marriage between Abdolreza and Mojgan as Abdolreza was legally married to Shahin at the time of Abdolreza and Mojgan's religious marriage ceremony/certificate in Iran.

[ 5 ] Mojgan asserts in this proceeding that as a common law spouse, she is entitled to pursue remedies under Part III of the Family Law Act, namely spousal support.

[ 6 ] Abdolreza was made a Respondent in this proceeding, even though he was deceased at the time this application was commenced. No trustee or executor was appointed to act on behalf of Abdolreza's estate in this proceeding.

[ 7 ] The parties attended To Be Spoken To Court on June 30, 2005 before Justice Nakonechny. Her Honour directed that a focused hearing would proceed to allow the Court to decide whether Mojgan is a spouse within the meaning of the Divorce Act R.S.C. 1985 c.3 or the Family Law Act R.S.O. 1990 c.F.3, or whether Mojgan's claims are solely against the estate of Abdolreza.

[ 8 ] The parties served and filed extensive affidavit evidence, and cross-examinations upon those affidavits took place.

[ 9 ] The focused hearing was scheduled to proceed before me on January 29, 2026. At the outset of that hearing, I raised an issue with counsel for the parties. Since cross-examinations upon the various affidavits had already taken place, the focused hearing was essentially to be argued as a motion for partial summary judgment. As a result, I was faced with a significant risk that making credibility findings would be difficult in the absence of viva voce testimony before me (i.e. a potential mini-trial).

[ 10 ] As a result, it was decided that the focused hearing be adjourned for a few weeks to proceed before me on the 'jump off' issue of whether Abdolreza could be found to be a simultaneous legally married spouse under the Divorce Act and a common law spouse under the Family Law Act. This 'jump off' issue was strictly a legal one, independent of whether Mojgan's evidence satisfied the governing test for whether she, in fact, could prove she was a common law spouse as that term is defined under Part III of the Family Law Act.

[ 11 ] Accordingly, further factums were served and filed. The focused hearing resumed before me on February 12, 2026.

[ 12 ] While neither party could point to a case directly on point (i.e. a finding for family law purposes that an individual can be a married spouse and common law spouse at the same time), each party was certainly entrenched in their respective positions. Shahin relied upon the definition of polygamy under the Family Law Act, while Mojgan relied upon jurisprudence addressing the existence of simultaneous spousal relationships in the context of the receipt of a death benefit under an insurance policy.

[ 13 ] At the outset of the second hearing, I advised counsel for both parties that upon reviewing their respective factums, this proceeding was in fact moot, and Mojgan's only available remedies lied in an application for dependent's relief under the Succession Law Reform Act R.S.O. 1990, c.S.26.

[ 14 ] The reason why this proceeding is moot is due to the fact that Abdolreza was already deceased by the time this application was commenced. As such, Abdolreza was no longer a spouse of either Shahin or Mojgan. Both Shahin's marriage to Abdolreza, and Mojgan's common law relationship with Abdolreza (if a Court does find that such a common law relationship existed in fact) both ended when Abdolreza passed away.

[ 15 ] Under both sections 1 and 29 of the Family Law Act, a spouse is defined as a person who is either married to another person, or has continuously cohabited for a period of not less than three years to another person. When Abdolreza passed away, he was no longer a defined person under the Family Law Act. A common law spouse can seek spousal support from his/her former spouse, but a former spouse refers to a post-separation spouse, and not a deceased spouse.

[ 16 ] Indeed, pursuant to Rule 7(1) of the Family Law Rules, a party to a family law proceeding can only be a person who makes a claim in a case or against whom a claim is made in a case.

[ 17 ] Had Shahin's application been commenced against Abdolreza when he was still alive, he would have been a person/party at that time. If he had subsequently passed away during the currency of the application, Mojgan's claims for spousal support as a common law spouse (if provable) could have continued against Abdolreza's estate by obtaining an Order to Continue. However, as this application was commenced against Abdolreza when he was already deceased, there are no possible remedies available to Mojgan under the provisions of the Family Law Act.

[ 18 ] While I am dismissing this proceeding as being moot, such a dismissal is without prejudice to Mojgan's rights to commence legal proceedings under the Succession Law Reform Act for dependent's relief should she so choose.

[ 19 ] If the parties cannot agree upon the costs of this proceeding, they may serve and file written costs submissions (totaling no more than five pages including a Bill of Costs) to my attention in accordance with the following schedule:

a. The Applicant's costs submissions to be served and filed within 14 days of the release of this Endorsement; and,

b. The Respondent's costs submissions to be served and filed within 14 days of the receipt of the Applicant's costs submissions.

Diamond J.

Released: February 13, 2026