By Rebecca Winninger, Senior Associate Research Lawyer, Lam Family Law*

In Amerakoon v. Widyalankara, 2026 ONSC 4428 (CanLII), Justice Finlayson recognized a new defence to recognition of a foreign divorce, based on intimate partner violence (“IPV”). Before turning to the new defence, I begin with some background on the recognition of foreign divorce, and the evolution of the law in this area over the past few years.

Background and Evolution of the Law Around the Recognition of Foreign Divorces

In May 2024, I wrote a blog post on a then-new defence to recognition of a foreign divorce: the defence of “unfair forum shopping” which the Court of Appeal for Ontario (“ONCA”) created in Vyazemskaya v. Safin, 2024 ONCA 156 (CanLII). In that post, I outlined why there is so much litigation about the validity of foreign divorces: a spouse divorced in another country cannot claim spousal support in Ontario under either the Divorce Act or Ontario’s Family Law Act (“FLA”). As a result, a party seeking spousal support must first challenge the validity of the foreign divorce.

I also provided a brief synopsis of the grounds for recognition of a foreign divorce, and the three traditional exceptions where Canadian courts will not recognize a foreign divorce: fraud, public policy, and lack of natural justice. I then discussed the “new” exception of unfair foreign shopping, which applies when a party deliberately sought a divorce in a foreign jurisdiction in order to avoid paying spousal support in Ontario.

Lastly, I noted the ONCA’s observation in Vyazemskaya v. Safin and Sonia v. Ratan that the inability of a spouse divorced abroad to seek spousal support in Ontario can “result in significant hardship.” The ONCA suggested that the FLA could be amended to ensure that spouses who divorced in foreign jurisdictions can seek spousal support in Ontario. The ONCA also expressed a willingness to reconsider its own jurisprudence holding that a “former spouse” cannot bring a claim for spousal support under the FLA: Vyazemskaya v. Safin, 2024 ONCA 156 (CanLII), at paras 43-44 and Sonia v. Ratan, 2024 ONCA 152 (CanLII), at paras 91-94.

Two years later, the FLA has unfortunately not been amended to allow former spouses, including spouses divorced abroad, to claim spousal support.

Additionally, the ONCA has not yet overturned its line of cases holding that the FLA does not allow for support claims from former spouses. In fairness, it appears that the ONCA has not yet had an opportunity to do so. In Rasaei v. Bahman, 2025 ONSC 2074 (CanLII), Justice Finlayson considered the ONCA’s commentary, and re-interpreted the FLA to find that divorced spouses can apply for spousal support: paras 5, 40-41, & 106. However, these findings were made in obiter, and the decision was not appealed, so the ONCA did not have a chance to endorse the decision. Justice Finlayson’s analysis has been described as “persuasive but not binding”: Pospelova v. Pospelov, 2026 ONSC 4368 (CanLII), at para 42.

Thus, litigation around the validity of foreign divorces continues to an extent, although perhaps more cases are settling.

The Newest Defence Based on IPV

The latest development is the new defence of IPV, as set out by Justice Finlayson in Amerakoon v. Widyalankara, 2026 ONSC 4428 (CanLII). The new exception applies where:

  • (a) a person, during the course of an intimate partnership or in its aftermath;
  • (b) has on an objective measure, been coerced as a result of intimate partner violence, into:
    • 1. participating in; or
    • 2. abstaining from defending a foreign divorce application: para 507.

The decision in Amerakoon v. Widyalankara is lengthy, with detailed summaries of both the parties’ evidence and the court’s findings of fact. The wife alleged verbal, emotional, and physical violence, and Justice Finlayson found her evidence credible “on a stand alone basis”. Aspects of her evidence were also corroborated by other witnesses: paras 198 & 237. The court found the husband bullied and threatened the wife, and subjected her to physical violence: para 241.

It was within this context of intimate partner violence and coercive control that the husband got the wife to sign a joint Australian divorce application: para 241. During the parties’ relationship and before they separated, the husband demanded that the wife agree to a divorce. If she did not agree, he threatened that she could not financially support the children without his assistance. The next day, the husband took the wife to an Ontario lawyer, who witnessed them signing the joint Australian divorce application. The lawyer simply commissioned the documents, and gave the wife no advice: paras 344-347, 362, & 370. The wife did not receive a copy of the documents to review, either before or after the meeting: para 354.

Two years later, the husband told the wife that the divorce had been granted: para 358. Another two years after that, the parties separated when the wife discovered the husband had secretly remarried: paras 520-522.

Justice Finlayson concluded that the wife “lacked free will when she signed [the divorce] documents”: para 245. The trauma she endured explained her actions, and subsequent inaction after signing the papers: para 369.

In order to resolve the case, it was not strictly necessary to create a new defence to recognition of a foreign divorce. Justice Finlayson found there was no basis to recognize the divorce under s. 22 of the Divorce Act (para 417), and the wife had already made out three existing exceptions: there was fraud in the manner in which the husband obtained the divorce (para 451), there was denial of natural justice as the wife did not have proper notice (para 453), and the husband engaged in unfair forum shopping (paras 468-485).

However, the wife raised duress as an issue. She did not specifically plead a new exception, but the court asked the parties, in their closing submissions, to address whether there should be a new exception based on IPV: paras 488 & 494.

Justice Finlayson drew on Ahluwalia v. Ahluwalia, 2026 SCC 16 (CanLII), in his analysis of the issue, finding it appropriate to recognize the new exception because:

  • It is important to condemn IPV: para 497.
  • It would be repugnant, and contrary to notions of restorative justice, if a party’s family law entitlements were limited as a result of IPV: para 500.
  • In this case, the facts concerning IPV supported existing exceptions, but that might not always be the case. IPV raises specific facts and issues not covered by the existing defences: paras 501 & 505, citing Beals v. Saldhana, 2003 SCC 72 (CanLII).

Justice Finlayson felt there was no real “floodgates” concern, as the exception is narrow and would only apply in unusual circumstances: para 506.

This is likely correct. The factual findings necessary to make out the exception will likely be more onerous than the “unfair forum shopping” defence. In my blog post on that exception, I wrote “Read broadly, the unfair forum-shopping defence may extend to every case where the party contesting the divorce proves on a balance of probabilities that the party who obtained the divorce did so to avoid support obligations in Ontario… This seems like a common scenario (although it may not always be easy to prove a party’s intention).” In contrast, the facts that gave rise to the new exception in Amerakoon v. Widyalankara were, in Justice Finlayson’s words, “unusual, and indeed astounding”: para 506.

*with thanks to Kayleigh Pink for her suggestions and edits.

This blog is informational only and should not be relied on as legal advice.