Janzen v. Cook, 2026 ONSC 1990

CITATION: Janzen v. Cook, 2026 ONSC 1990

DIVISIONAL COURT FILE NO.: DC-24-00000327-0000

DATE: 20260417

D.L. Corbett, Faieta and Shore JJ.

BETWEEN:

ASHLEY JANZEN

Appellant

– and –

DAVID COOK

Respondent

James A. Brown, for the Appellant

Andreus R. Snelius, for the Respondent

HEARD at Hamilton: October 28, 2025

REASONS FOR DECISION

Shore J.

1The appellant mother, Ashley Janzen, brought a motion to change child support payable by the respondent father, David Cook, and the parenting provisions set out in the parties’ separation agreement, dated June 30, 2011. Following a ten-day trial, the trial judge found that there was no material change in circumstance with respect to the parties’ incomes and therefore declined to vary child support.

2This is an appeal of the trial judge’s decision, dated March 10, 2023, and an appeal of the related costs order, dated April 19, 2023.

3The trial judge’s decision was a well thought out, well reasoned, 33-page decision. I find no error in law or palpable and overriding error of fact.

4For the reasons below, the appeal is dismissed, with costs in the agreed amount of $7,500.

Background:

5The parties were married on February 17, 2007, and separated on June 1, 2010. The parties have one child, born in 2009. The child has their primary residence with the appellant.

6On June 30, 2011, the parties entered into a separation agreement, settling the outstanding issues between them.

7The agreement fixed the respondent’s income at an “estimated” $70,000 per year and child support at $647 per month. Pursuant to the agreement, on any review of child support the respondent’s income would be deemed to be no less than $70,000 per year, unless he is able to prove to the contrary: see paragraph 5.15 of the agreement.

8In December 2019, the appellant brought a motion to change the parenting and child support provisions set out in the agreement. Prior to trial, the parties were able to resolve the dispute regarding parenting.

9Until the appellant’s motion, neither party had requested an annual review as provided for under the agreement. They were content to have the respondent pay child support as provided for under the agreement.

10The relevant provisions of the agreement provide as follows:

5.14 Once a year, [the appellant] and [the respondent] will review the child support arrangements in this Agreement and, based upon their respective incomes for the previous year as disclosed in the document referred to in paragraph 5.15 below, shall adjust monthly child support pursuant to the Guidelines and for special or extraordinary expenses, effective July 1st each year. [ ... ]

5.17 In addition to a yearly review, either of [the appellant] or [the respondent] may seek a change in child support if there is a material change in the condition, mean, needs or other circumstance of either of them, or the child, which would affect child support.

5.18 A material change in the condition, means, need or other circumstances of the parents or child may be foreseen or unforeseen, foreseeable or unforeseeable, and may include:

(a) a material change in either party's financial condition,

5.19 Whoever seeks a change will give the other, in writing:

(a) notice of the proposed change,

(b) evidence supporting the proposed change, and

11The key issue in dispute at trial was whether there was a material change in circumstance with respect to the respondent’s income between 2016 and 2021, such that the respondent’s child support obligation should have increased during those years.

12The matter proceeded to a ten-day trial before Justice Smith. On March 10, 2023, the trial judge released the decision, finding that the appellant had not met her onus of proving that there had been a material change in circumstance regarding the father’s income and, as such, the trial judge declined to vary the child support.

13On April 19, 2023, the trial judge released the costs order, confirming that the appellant owed the respondent $10,000 in costs pursuant to the order of MacLeod J., dated November 21, 2021, and ordered costs of $65,000 for the trial, payable by the appellant to the respondent within 30 days.

14The appellant appealed both the trial decision and the costs decision to this court.

Grounds of Appeal

15The appellant submits the trial judge erred as follows:

a. In the overall approach to child support as set out in s.1 of the Child Support Guidelines;

b. In failing to draw a negative inference against the respondent because of the lack of financial disclosure:

c. In failing to impute income, and specifically:

i. Erring in the starting point for determining the respondent’s income;

ii. Failing to include the money in the respondent’s bank account;

iii. Failing to include the cash income;

iv. Failing to analyze profit margins;

v. Failing to consider that there was double recovery for business expenses;

vi. Failing to add back in business expenses;

vii. Failing to include gifts as part of the respondent’s income;

viii. Failing to consider the respondent’s lifestyle; and

ix. Failing to include the net proceeds of sale of the respondent’s home;

d. In assessing the credibility of the respondent; and

e. Ordering costs when the respondent took an unreasonable approach to disclosure.

Standard of Review:

16The appellant submits that the trial judge erred in law, although most of the grounds for appeal relate to findings of fact, or findings of mixed fact and law and not errors of law.

17On an appeal, the standard of review on a question of law is that of correctness.

18The standard of review for findings of fact is that such findings are not to be reversed unless it can be established that the trial judge made a “palpable and overriding error”: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 8 and 10.

19Questions of mixed fact and law involve applying a legal standard to a set of facts: Housen, at para. 26. The standard of review for a question of mixed fact and law is palpable and overriding error, unless there is an extricable question of law, in which case, the standard is correctness: Housen, at para. 37.

20An appeal is not a retrial of a case. Most of the submissions by the appellant were re-argument of the issues that were before the trial judge. There is a high level of deference given to a trial judge on findings of fact. The trial judge is better situated to make factual findings owing to his or her extensive exposure to the evidence, the advantage of hearing testimony viva voce, and the judge’s familiarity with the case as a whole. Because the primary role of the trial judge is to weigh and assess voluminous quantities of evidence, the expertise and insight of the trial judge in this area should be respected: Housen, at para. 18 and Hickey v. Hickey, 1999 691 (SCC), [1999] 2 S.C.R. 518, at para. 12.

21The primary issue in this case was imputation of income. Imputation of income is set out in s. 19(1) of the Child Support Guidelines: “The court may impute such amount of income to a parent or spouse as it considers appropriate in the circumstances, which circumstances include…”. The decision to impute income is discretionary. Because of its fact-based and discretionary nature, trial judges must be given considerable deference by appellate courts when support decisions are reviewed: Hickey, at para. 10.

22Having set out the standard of review, I will now consider each ground of appeal in this case.

Analysis:

Disclosure:

23The appellant submits that the trial judge should have drawn an adverse inference against the respondent for his failure to provide financial disclosure. The determination of whether the respondent provided disclosure is a finding of fact.

24The trial judge accepted that the respondent’s accounting with respect to his cash income was far from satisfactory, in that he relied on memory and guess work when giving the information to his accountant. However, the trial judge did not find the respondent to be dishonest. He was “trying his best to provide careful evidence respecting multiple years’ worth of records relating to the small business at which he clearly works hard.”: para. 34 of the Decision.

25The trial judge found the respondent “made vast disclosure of his financial records both business and personal” and that the disclosure before trial was extensive. The trial judge declined to draw an adverse inference and found that “no material failure to disclose on the part of the respondent was established”: para. 37 of the Decision. I find no palpable or overriding error with respect to the trial judge’s finding regarding disclosure.

Material change in circumstance:

26The parties agree that at trial the burden of proof was on the appellant to establish on a balance of probabilities that there had been a material change in circumstance that would justify a change in child support. The trial judge found that the appellant had not discharged her onus to show that there had been a material change in circumstances with respect to the respondent’s income, with one limited exception regarding the respondent’s 2020 income.

27The trial judge correctly identified that a change will be material where it is a change that, if known at the time, would likely have resulted in different terms in the agreement: see paras. 17 and 18 of the Decision.

28The question is whether the trial judge erred in the determination of the respondent’s income each year, which is almost exclusively reliant on findings of fact made by the trial judge. I will consider the factors raised by the appellant.

The factors considered in determining income:

No error in the starting point for determining income:

29The parties’ starting point in determining the respondent’s income was one of the biggest factors in their arriving at different results for his income each year.

30The respondent submitted that the starting point in determining his income was his line 150 income on his income tax return, subject to any adjustments. The respondent submits his income only exceeded $70,000 once, being $84,292 in 2020. The respondent conceded that the court should order a retroactive adjustment for child support for 2020.

31The appellant submitted that the starting point was the respondent’s income of $70,000, subject to adjustments. The appellant submits the respondent’s income ranged from $168,592 to $657,622.

32The trial judge found that the terms of the separation agreement anticipated that the starting point for any adjustment to child support would be the respondent’s actual income. Paragraph 5.15 sets out the documents to be exchanged in order to calculate the parties’ incomes:

5.15 Each party will, not later than June 1st each year, provide to the other a copy of his or her Income Tax Return for the previous year (and all materials filed with it), together with their Notice of Assessment received from Canada Revenue Agency and both will, in writing provide the following information to the other:

(a) the documents required in s. 21(1) of the Guidelines that have not been previously provided, [ ... ]

(c) current information about a party's claim of undue hardship, if any, and his or her household's standard of living, [ ... ]

(e) any other information needed to review child support.

[The respondent]'s income shall be deemed to be not less than $70,000.00 per year unless he is able to prove to the contrary.

33The trial judge found that nothing in the agreement supported the appellant’s suggestion that the respondent’s income was fixed at a minimum of $70,000 and this number was only capable of being added to. The trial judge found that the agreement anticipated that any change would be based on the parties’ actual incomes, with their starting point being their line 150 income on their income tax return, with adjustments as deemed appropriate.

34Based on the evidence at trial, this was a factual finding available to the trial judge. I find no error of fact or law in the trial judge’s finding that the starting point in determining the respondent’s income is his line 150 income each year.

Cash income:

35The appellant submitted that the respondent earns significant cash income that is underreported on his income tax return. She estimated the amount to be at least $40,000 per year.

36The respondent submitted that he declares his cash income on his income tax return, and that his cash income, in any event, is nowhere near $40,000 per year.

37The trial judge considered the evidence from the parties and found that the respondent was “very poor at keeping track of cash receipts”, but that even if one added the undeclared cash income of $40,000 to his line 150 income in the years 2016-2018, his income would still be under $70,000: see paras 30-31 of the Decision.

38The trial judge finds that the respondent’s undeclared cash income was less than $40,000 in the years in question and that the evidence failed to establish the respondent earns a substantial amount of undeclared cash.

39This is a finding of fact available to the judge on the evidence at trial. Although the appellant disagrees with the trial judge’s finding on this issue, she fails to point to a palpable or overriding error.

Deductions:

40The appellant submits that the respondent unreasonably deducted personal expenses as business expenses, and that these should be added back to his income.

41The respondent submits that with one exception, the deductions were properly claimed. The respondent conceded that the amounts claimed for the use of his home by his business in 2019 and 2020 should not have been claimed.

42The evidence at trial showed that the respondent’s accountant already reduced the expenses incurred to reflect only the business part of the expense and not the personal expense. The trial judge properly identified the law in this area and found that there was no evidence that the amounts claimed were unreasonable.

43Again, this amounts to a finding of fact by the trial judge, and not an error of law. Although the appellant disagrees with the trial judge’s finding, she fails to point to a palpable or overriding error.

Proceeds of sale:

44As part of the property settlement between the parties, the appellant and her mother transferred the matrimonial home to the respondent. The respondent sold the home in 2021 and netted $197,552 from the sale.

45The appellant submits that the proceeds of sale of the respondent’s home should have been added to his income. The appellant acknowledged that the home was the respondent’s principal residence (and thus sale proceeds would not be considered income for tax purposes) but argued that the respondent was in the business of profiting from the sale of his primary residence and thus the profit from this sale should be considered income for the purpose of support.

46The trial judge considered and rejected that argument (at paras. 81-84 of the Decision). The trial judge concluded that there was no evidence to suggest that the respondent is in the business of profiting from the sale of residential properties. The home was the primary residence of the parties prior to their separation in 2010. Title to the home was transferred to the respondent in 2011, and it remained his primary residence until he sold the properly in 2021. This conclusion was available to the trial judge on the basis of the facts, as found, and I see no reversible error.

47I find no error of law or palpable or overriding error of fact by the trial judge.

Gifts from his mother, cash business purchases, and sale of personal property:

48The appellant submits that cash gifts the respondent received from his mother, the proceeds of sale of personal items, and unreported cash received from clients to make business purchases should be added into the respondent’s income.

49The gifts from the respondent’s mother were given at times like Christmas, holidays and birthdays and $20,000 to assist with his legal fees. The trial judge correctly set out the law, that gifts are not typically included in income but may be added where given in unusual circumstances, and concluded that the gifts in this case are not so unusual or of such a size that this is an appropriate case in which to impute them as income. Further, payment of non-recurring legal fees by a family member should not be imputed as income.

50Likewise, the trial judge considered and rejected the appellant’s position on the other issues. The trial judge found that even if these amounts were added to the respondent’s line 150 income, based on the evidence at trial, it would not be sufficient to bring his income above $70,000.

51While she may disagree with the trial judge’s findings, the appellant fails to show any palpable or overriding error in the judge’s findings of fact.

52I find no error in either law or fact in the judge’s findings in this regard.

Lifestyle:

53The appellant submits that the trial judge erred by failing to consider that the respondent’s income does not support his lifestyle, and therefore he is underreporting his income.

54The appellant submits that the trial judge failed to consider imputing income where a party’s full income is not disclosed, as set out in Arlt v. Arlt, 2003 SKQB 466, 243 Sask. R. 110. In Arlt, the payor reported very little income but showed significant personal expenses, including debt repayment for his daughter, RRSP contributions, purchase of vehicles and skidoos and other personal expenses not supported by the reported income.

55Those facts are different than the facts before this court. The trial judge found that the evidence did not support the appellant’s position that the respondent lives a lifestyle inconsistent with his reported income. The trial judge goes through the evidence and explains their conclusion that the applicant failed to establish that the respondent’s lifestyle was inconsistent with an income of $70,000.

56I find no palpable or overriding error of fact by the trial judge.

Money in bank accounts:

57The appellant submits that the trial judge failed to consider the balances in the respondent’s bank accounts at the end of each year and misapplied the law set out in Samuel v. Cox, 2025 ONCJ 149.

58Samuel was an uncontested trial. The applicant gave evidence of the money deposited into the business account each year. The Court reduced this amount by 33% for business expenses and used the net deposits to calculate income. That is very different than relying on a bank balance, which is just a snapshot of the account at any given time.

59Further, a trial judge is not required to refer to every piece of evidence presented at trial. While the trial judge did not refer to the respondent's year end bank balance submissions in his reasons, his failure to do so does not amount to a palpable and overriding error. A trial judge's failure to refer to a specific piece of evidence does not per se constitute palpable and overriding error. It is only when an omission gives rise to a reasonable belief that the trial judge must have forgotten, ignored or misconceived the evidence in a way that affected her conclusion that an appellate court is entitled is intervene: see Housen at para. 72.

60I cannot arrive at this conclusion in this case.

Profit margins:

61The Appellant argues that the Respondent’s profit margins should have led the trial judge to infer that he was not being truthful about his receipts and expenses. On the record below, this argument is rhetorical rather than analytical. There is no expert evidence on the issue, and it is not evident on the raw evidence of receipts and expenses that the argument should have force. The trial judge made findings related to the Respondent’s receipts and expenses, found that the Respondent was a poor record-keeper but otherwise a credible witness, and drew conclusions accordingly. The trial judge was in the best position to assess the Appellant’s argument that the Respondent “must have made more money” then he claimed; I see no basis to interfere with the trial judge’s conclusions on these issues.

Appeal on Costs:

62I seen no reason to set aside the cost order. An appellate court may interfere with a costs award made by a lower court only if the costs award is clearly wrong or the court made an error in principle: Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, [2004] 1 S.C.R. 303, at para. 27. There is no such error in the trial judge’s costs decision and since the appeal is otherwise dismissed, there is no basis on which to interfere with the trial judge’s costs disposition.

Conclusion:

63The appeal is dismissed. The appellant shall pay costs in the agreed amount of $7,500, inclusive, to the respondent within thirty days.

“Shore J.”

I agree

“D.L. Corbett J.”