How Canada Recognizes Foreign Divorces: A Summary of Mehralian v. Dunmore

On December 9, 2024, the Supreme Court of Canada heard the case of Dunmore v. Mehralian—an appeal that was unsuccessful, following the Ontario Court of Appeal’s decision in Mehralian v. Dunmore. While we are still awaiting the Supreme Court’s reasons for judgment, let’s delve into the events that transpired in the lower courts.

The family law dispute between Raha Mehralian (“Raha”) and Michael Paul Dunmore (“Michael”) is a complex and prolonged legal saga, marked by a tangled history of procedural issues and factual developments. Their relationship unfolded across multiple countries, largely due to Michael’s career as a lawyer specializing in international arbitration.

Facts

Raha and Michael first met while working in Malaysia. Shortly after, they moved to Japan for Michael’s job and married in 2015. As Michael’s career involved frequent job changes, their living arrangements were constantly changing. After Japan, they relocated to Abu Dhabi, then separated in 2017. However, they reconciled in 2018 and moved to Oman, where they lived until March 2020.

In March 2020, the couple travelled to Canada for various reasons, including a visit to Michael’s family. However, due to the COVID-19 pandemic, their planned return to Oman in early April was not possible.

The couple then stayed in Essex County with Michael’s parents, where Michael worked remotely and Raha became pregnant with their son, “M.” By 2021, Michael’s work required travel again. In January of that year, the family travelled to Oman with infant M, and by April, they were back in Toronto.

Ultimately, Raha and Michael separated, each seeking a divorce in the summer of 2021. Raha filed for divorce, corollary relief, and equalization of property in Ontario, while Michael sought a divorce and joint custody of M in Oman.

Ontario Court of Appeal

At the Court of Appeal, both the applicant, Raha, and the respondent, Michael, appealed two separate orders from the Ontario Superior Court:

Raha appealed the Divorce Recognition Order, which recognized the validity of the Omani foreign divorce in Ontario.
Michael appealed the Parenting Jurisdiction Order, in which his motion for the return of M from Ontario to Oman was denied, while Raha’s cross-motion for an order granting the Ontario Superior Court jurisdiction to determine parenting time and decision-making responsibility for M was granted.

Both appeals were denied.

Omani Foreign Divorce Recognized in Ontario

The Divorce Recognition Judge found that even though Raha initially contested the Omani divorce, she voluntarily participated in its proceedings. There is a longstanding common law principle called “attornment,” which basically holds that in the context of a jurisdictional dispute, a party’s voluntary participation in a foreign court proceeding forms the basis for recognizing the foreign judgment in another jurisdiction.

There are other factors that the Divorce Recognition Judge could have considered to possibly change the course of the above finding, such as Canadian public policy issues if the Omani divorce were recognized. Nevertheless, Raha did not satisfy her burden of proof to bring such an argument, “beyond the simple assertion that there is no provision for spousal support upon divorce in Oman.”

Furthermore, by way of the principles of comity, many courts in different jurisdictions (including those across international borders) make efforts to respect and show deference for each other’s laws and judgements concerning the same issues. This practice also minimizes repeat proceedings, which can be highly prejudicial for average litigants and “favour the wealthy.” Likewise, “it is just and equitable to recognize that a party be bound by a decision in a court proceeding in which they have voluntarily participated.”

Ontario has Jurisdiction for M’s Parenting Time and Decision-Making Responsibility

The issue that was before the Ontario Superior Court of Justice to determine if it had jurisdiction to decide M’s parenting time and decision-making responsibility was the following:

“Was M habitually resident in Ontario, as defined in s. 22(1)(a) of the CLRA, at the time the application was commenced?”

Based on a thorough analysis of the facts, Justice Brownstone found that M was habitually resident in Ontario at the time the application was commenced, and therefore Ontario has jurisdiction with respect to M’s parenting matters.

Key Takeaways

Foreign divorces are recognized in Canada if they meet the requirements outlined in Section 22(1) of the federal Divorce Act. If you are residing in Canada and seek a divorce in a foreign jurisdiction, this could affect your ability to seek support remedies in Canada. In general, if an individual obtains a divorce outside of Canada, they may be unable to seek spousal support from a Canadian court. It is advisable to consult with a Canadian family lawyer before pursuing a divorce abroad.

Canadian federal, provincial, and territorial laws prioritize the best interests of the child when making decisions regarding parenting orders. If a child has ties to or is from a foreign jurisdiction, this can influence how a Canadian court handles parenting matters.

In the 2022 Supreme Court of Canada case F v N, at paragraph 3, the Court stated:

Where a child who is wrongfully removed to or retained in Ontario habitually resides in a country that is not a party to the Hague Convention, Ontario law provides that, but for exceptional circumstances, courts will refrain from exercising jurisdiction and leave the merits to the foreign jurisdiction with which the child has a closer connection.

In the case of M, the child was habitually resident in Ontario, not Oman as the father had argued.

If you have questions about your family law matter, please contact family lawyer Toni Pascale at Devry Smith Frank LLP at 416-446-5087 or toni.pascale@devrylaw.ca.

This article was co-authored by Articling Student, Sanaz Sakhapour.