Obahiagbon v. Nhau, 2026 ONSC 410

CITATION: Obahiagbon v. Nhau, 2026 ONSC 410

DIVISIONAL COURT FILE NO.: DC-24-1545

DATE: 20260213

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Fitzpatrick, O’Brien, Tranquilli JJ.

BETWEEN:

Esosa Obahiagbon

Appellant

– and –

Johannah Nhau

Respondent

Self-Represented

Robyn Switzer, for the Respondent

HEARD: January 21, 2026

TRANQUILLI J.

reasons for Decision

Introduction

1This is an appeal of orders for spousal and child support made after an 11-day Family Court trial.

2In reasons for decision dated April 9, 2024, the trial judge, Leef J., found the parties were “spouses” pursuant to s. 29 of the Family Law Act, R.S.O. 1990, c. F.3 and that the respondent was entitled to mid-range spousal support from the appellant on both a compensatory and non-compensatory basis. The court found the appellant was not forthright about his financial situation and concluded that the appellant’s income for spousal and child support purposes should be based on imputed income.

3The appellant asks this court to set aside judgment, dismiss the spousal support claim, readjust his income for the payment of child support and to dismiss other orders such as for play therapy and life insurance. The appellant argues the trial judge made palpable and overriding errors in her determinations of fact, erred in law and erred in the application of the law to the facts.

4These reasons explain why the appeal is dismissed. In summary, the paradoxical nature of the evidence and, in some cases, the lack of evidence made the credibility of the witnesses a pivotal factor in the determination of these issues. The trial judge’s findings are entitled to deference. This appeal is an effort to reargue the case and to introduce new evidence without a proper foundation. There is no basis on which this court should interfere with the trial judge’s decision.

Issues

5This court has jurisdiction over this appeal pursuant to s. 19(1)(a.1) of the Courts of Justice Act, R.S.O. 1990, c. C. 43.

6The standard of review on a pure question of law is correctness. Findings of fact and mixed fact and law are not to be reversed unless it can be established the trial judge made a “palpable and overriding error” or where the legal principle is readily extricable from the question of mixed fact and law and subject to the correctness standard: Housen v. Nikolaisen, 2002 SCC 33 at paras. 10, 25, 36.

7Significant deference must be given to trial judges in relation to support orders. An appeal court should only intervene in the appeal of an order resolving financial disputes in a family law case “when there is a material error, a serious misapprehension of the evidence, or an error in law”: Cronier v. Cusack, 2023 ONCA 178, at para. 8, citing Hickey v. Hickey, 1999 691 (SCC), [1999] 2 S.C.R. 518, at para. 12.

8The Notice of Appeal raised a litany of alleged inconsistencies in the evidence which the appellant submits the trial judge failed to reconcile in her decision. The factum itemized approximately 52 ostensible errors by the judge in her assessment of the evidence and in the conduct of the trial. The appellant’s oral compendium appeared to raise additional grounds that were not previously addressed in either the Notice of Appeal or factum.

9I have carefully reviewed the appellant’s detailed submissions and am satisfied the breadth of the alleged errors can be fairly addressed within the following questions:

1. Did the trial judge err in finding the parties were “spouses”?

2. Did the trial judge err in awarding spousal support?

3. Did the trial judge err in imputing income to the appellant?

4. Were the ancillary support orders made in error?

5. Did the trial judge fail to afford the appellant procedural fairness?

Fresh Evidence Motion

10The appellant brought a fresh evidence motion. He contended the information would assist this court in more clearly understanding the case and would therefore further illustrate the trial judge’s misapprehension of the evidence. The notice of motion failed to particularize the nature of the proposed evidence but appeared to identify financial documents, text messages and general information about employment in the aviation industry.

11The motion is dismissed. The appellant did not justify why this information should be admitted in accordance with the well-established criteria: Palmer v. The Queen, 1979 8 (SCC), [1980] 1 S.C.R. 759. The respondent could have been cross-examined on her previous financial statements at trial about the alleged irregularities in her income. The appellant failed to do so. Even assuming the court was satisfied the evidence could not have been obtained through the exercise of due diligence, there is still no basis for their admission on this appeal. The appellant explained that some of the proposed evidence included documents he had proffered at trial and was misled to believe had been entered into evidence. He complained the respondent added to his confusion through causing the documents in Case Center to be repaginated. He explained he only learned during closing submissions that the documents had not been marked as exhibits; however, the trial judge told him it was too late for them to be entered in evidence. He referred this court to a set of text messages between the parties where they refer to their relationship and the respondent’s plans to remain in Thunder Bay and a news article about the employment market for aviation graduates. I am not satisfied these individual items of evidence, when taken with the other evidence, would have affected the result at trial. As these reasons will review, the evidence overwhelmingly supported the trial judge’s reasons for her findings.

Overview of the Evidence

12The evidence at trial was that the parties were in an approximate 5-year long distance relationship between in or about 2012 and 2018. They are the parents of a child born in 2018 by way of assisted reproduction.

13The evidence about the nature of the parties’ relationship and the appellant’s income was conflicting, contested and over-complicated. Apart from agreeing the relationship was volatile, the parties agreed on little else about their history. This led to an extensive evidentiary record including text messages, emails, photographs, receipts, tickets and trip itineraries and marking various points in the parties’ approximate five-year association.

14The appellant came to Canada from Nigeria as a political refugee in 1990. He lived in Brampton and was self-employed as a nurse. The respondent was born in Zimbabwe and moved to Canada after she finished high school. After the parties met, the respondent left the GTA to attend aviation school in Thunder Bay. She remained there after graduation for job opportunities in her field as a pilot.

15The appellant characterized their relationship as “open”, with “no strings attached”, whereas the respondent contended they were a committed couple who were trying to make plans for their relationship and their careers.

16The parties had difficulties with conception. The respondent claimed the couple eventually agreed that she would leave her career in Thunder Bay and return to Brampton to start a family with the appellant through IVF therapy. The plan included that the appellant would support the family until the respondent could restart her career in the GTA.

17The appellant claimed he intended that the pregnancy would proceed by way of surrogacy, but the respondent would not agree. He claimed the respondent then decided she would undergo IVF on her own. He therefore “tricked” the respondent into believing they were still a couple so he could stay involved in the pregnancy and have rights to the child. He argued it was not a joint decision for the respondent to leave her job in Thunder Bay.

18The parties separated early in the pregnancy. The child remained in the respondent’s primary care following her birth in October 2018. The respondent was earning a reduced income as a flight instructor. She testified that her childcare responsibilities meant she could not work in her previous position as a pilot. The appellant argued the respondent was underemployed and that the court should impute income.

19The trial judge found the parties were “spouses” pursuant to s. 29 of the Family Law Act, and that the respondent was entitled to mid-range spousal support from the appellant on both a compensatory and non-compensatory basis. The trial judge did not impute income to the respondent. However, the court concluded the appellant had not complied with his disclosure obligations and that his income for spousal and child support purposes should be based on an imputed income of $156,841.89.

20The court accordingly ordered that the appellant pay spousal support in the amount of $2,433 per month, child support in the amount of $1,348.00 per month, and 66% of s. 7 expenses, including play therapy, commencing May 1, 2024. The appellant was also ordered to obtain life insurance of $500,000 as security for his support obligations. The court fixed support arrears from November 1, 2018, to the date of judgment in the amount of $210,835 less the actual child support paid by the appellant, for net child and spousal support arrears owing of $187,267. Finally, the court provided that spousal support and the quantum of life insurance shall be reviewed in October 2025.

Analysis

21The evidentiary record was voluminous and highly contradictory. The issues at trial and now on this appeal involved determinations of fact and credibility falling squarely within the province of the trial judge. I will therefore first consider the trial judge’s credibility assessment before turning to each of the questions on this appeal, because absent an extricable legal error, her determinations attract a high level of deference.

22The trial judge found the respondent’s evidence was clear and forthright. Inconsistencies were on peripheral matters, readily admitted and explained to the court’s satisfaction. In contrast, the court found the appellant’s evidence was often inconsistent. His explanations were often illogical, or he simply failed to address the conflict at all. The court found the appellant attempted to deceive the court regarding his relationship with the respondent and his financial situation.

23Banking statements did not show any nursing income. He failed to show proof of income from all sources. The T4s he eventually produced at the court’s insistence showed there was still likely additional unreported income. The court was also concerned that the respondent had portrayed irreconcilable sets of personal circumstances at this trial as compared to in a 2013 Immigration Appeal Board hearing. In this trial, he sought to reduce his income by business expenses for his claimed involvement in a Nigerian housing venture that involved several trips to the country. However, in 2013 he told the Immigration Appeal Board he was a political refugee and had not returned to Nigeria in the past 22 years out of fear. The Board was also led to believe he was alone in Canada without his family. In contrast, the trial evidence established his siblings had long been in the country.

24I am satisfied the trial judge sufficiently articulated how she resolved the credibility concerns that arose on this record. Her reasons for her assessment do not reveal a material misapprehension of the evidence or an extricable legal error and therefore attract a high level of deference. My conclusion that the trial judge did not err in her credibility assessment informs my analysis of the issues raised on appeal, which largely challenge the trial judge’s factual conclusions, as further detailed below.

1. Did the trial judge err in finding the parties were “spouses”?

25The respondent claimed spousal support from the appellant pursuant to Part III of the Family Law Act. As they were not married, the respondent had to establish she was a “spouse” pursuant to section 29(b) of the Act, where the parties cohabited in a relationship of some permanence, if they are the parents of a child.

26The trial judge noted the parties lived in two different cities for much of their relationship by necessity of the respondent’s schooling and employment. However, the court concluded there was an “abundance of evidence” that the parties were in a committed relationship. The court explained that while any one of these points might not be a deciding factor in isolation, the totality of the evidence led to the inevitable conclusion that the parties were in a “relationship of some permanence.”

27The appellant submits the trial judge made numerous errors in her assessment of the nature of the parties’ relationship and the application of the law to the question of whether they were “spouses”. According to him, the evidence clearly showed that they lived in different cities for much of the relationship, but the trial judge incorrectly relied on numerous misapprehended factors to find they were nevertheless spouses. He points to alleged discrepancies in the evidence such as the reasons they attending counselling, different addresses used by the respondent as her primary residence, what personal items she kept at his residence, the flight logs showing the precise number of days she was in Thunder Bay as compared to Brampton and conflicting or vague dates regarding matters such the dates of their engagement, pregnancy, cohabitation and trips together.

28I do not give effect to any of these submissions.

29The factors relevant to determining the existence of a spousal relationship are well established. These inexhaustive factors include shared shelter, sexual and personal behaviour, services, social activities, economic support and children, as well as the societal perception of the couple. These elements may be present in varying degrees. Not all are necessary for the relationship to be found to be spousal. The fact that one party continues to maintain a separate residence does not preclude a finding that that the parties are in a relationship of some permanence. Shelter arrangements are only one of several factors in assessing whether the parties are cohabiting: Molodowich v. Penttinen, 1980 1537 (ON SC) at para. 16; M. v. H., 1999 686 (SCC); Kassabian v. Marcarian, 2025 ONCA 239 at para. 21; Stephen v. Stawecki, 2006 20225 (ON CA) at para. 4.

30The trial judge correctly recognized these legal principles in her consideration of the evidence. Her reasons considered and weighed the wide body of conflicting evidence and the recognized factors that inform the existence of a spousal relationship. Her reasons exhaustively list the evidentiary points which she found established a relationship of some permanence. It is clear she found the respondent’s evidence to be more reliable and credible than that of the appellant. Her assessment is owed deference. The trial judge was not obliged to refer to each piece of evidence in her reasons and resolve every inconsistency. The fact that the evidence could have been weighed or interpreted differently does not amount to palpable and overriding error: Kassabian, at para. 45.

2. Did the trial judge err in awarding spousal support?

31The trial judge found the respondent’s income was negatively impacted following the birth of their child. The respondent was entitled to mid-range support because she sacrificed her career by leaving secure employment in Thunder Bay to relocate to Brampton to start a family with the appellant and to restart her career with his support. She struggled financially since separation and incurred significant debt to provide for herself and their child.

32The appellant submits the trial judge misapprehended and misapplied the law governing entitlement to spousal support: Moge v. Moge, 1992 25 (SCC), [1992] 3 S.C.R. 813; Bracklow v. Bracklow, [1999] 1 S.C.R. 40. He further contends the trial judge made material factual errors in her assessment of the evidence relevant to the respondent’s support claim. He insists the evidence shows the respondent was financially independent when they met and that she did not make a career sacrifice when she left her work in Thunder Bay. He claims she left Thunder Bay because she made flight errors, not because the parties had planned to start a family, and that she already decided to undergo IVF on her own. He also argues the trial judge’s failure to consider the mandatory criteria in s. 33(9) of the Family Law Act, which means the trial judge erred in determining entitlement, the amount and duration of spousal support.

33These submissions lack merit. The trial judge was not required to enumerate the statutory factors under s. 33(9) in her analysis. Her reasons demonstrate she identified and thoroughly considered these factors and the overarching principles governing spousal support entitlement in her assessment of the evidence.

34The judge understood the issue involved whether the respondent suffered an economic hardship or disadvantage because of the relationship or its breakdown. This assessment included determinations of why the respondent left her established career in Thunder Bay, a determination of fact and credibility that attracts a high level of deference. The court considered the respondent’s ability to contribute to her own support, the effect of the relocation on her earning capacity, the original plans for the appellant to support the couple while the respondent re-established her career, and the further financial consequences of the relationship breakdown on the respondent’s ability to work as a pilot while the single parent of an infant. The reasons found a comparative decrease in income beginning in the year of her pregnancy and from which she had not recovered since the child’s birth. She liquidated savings and borrowed money. She was unable to regularly pay for her share of the home she jointly holds with her mother. The respondent’s plan was to seek better career opportunities once the child was older. The court found that in contrast, the appellant’s employment had continued uninterrupted after the child.

35The trial judge’s reasons do not demonstrate a serious misapprehension of the evidence and there is no basis on which this court will intervene with the award for spousal support.

3. Was the trial judge in error in imputing income to the appellant?

36The appellant submits the trial judge erred in determining support based upon imputed income.

37Again, there is no merit to this contention. The judge’s reasons for imputing income do not reveal an error in principle or a significant misapprehension of the evidence.

38The trial judge understood the question was whether it was reasonable to presumptively rely on the appellant’s line 150 income for support purposes. The appellant retained an expert to provide an income analysis. However, the expert did not take steps to verify the stated income. The court was satisfied that the respondent had discharged her burden of demonstrating a basis for the imputation of the appellant’s income. The analysis considered whether the appellant was intentionally underemployed, whether that underemployment was reasonable and if not, what income was appropriately attributed to him in the circumstances: Drygala v. Pauli, 2002 41868 (ON CA) at paras. 23-37.

39The trial judge identified several “red flags” that led to the conclusion that the appellant had not provided full financial disclosure. The appellant failed to provide proof of income. This should have been easy to obtain. His bank statements did not show his employment income and showed unexplained activity. T4 statements that he eventually produced mid-trial at the court’s insistence confirmed he had still not reported all his income.

40The appellant reduced his nursing income by about 25% for expenses from his involvement in a Nigerian affordable energy and housing project. However, there was no evidence this venture existed and there were no entries in his financial statements consistent with such an investment. The court concluded that even if the business existed, it was unreasonable for him to divert his income to a business that had yet to yield a return in the face of his support obligations. He also did not disclose details of the additional income earned renting his basement to a tenant, other than to testify that a tenant was no longer there.

41The reasons also demonstrate that the amount selected for imputed income was grounded in the evidence the appellant chose to present. The court noted the litigation started in 2019, but that the appellant did not present an income analysis for the years preceding the litigation, which likely would have given a clearer picture of his income. The court used the adjusted income figures prepared by the appellant’s expert for 2019 and 2020, but then added the Nigerian business deductions back, along with a nominal sum for the undisclosed rental income. Those amounts were then subjected to an income tax gross-up. This adjusted his total income in 2019 to $156,841.89 and in 2020 to $100,371.10. The court rejected the appellant’s childcare responsibilities as an explanation for the 36% drop in his income in 2020 because it was inconsistent with the parenting schedule. This inconsistency, together with the incomplete financial disclosure and other credibility concerns supported the court’s conclusion that the 2020 income was not a true reflection of the appellant’s income for that year. The court found his support obligations would be based on an income of $156,841.89 as the best approximation of his actual income. The judge acknowledged this may still be less than what the appellant, in fact, made but held that any imputation beyond that figure would be based on pure conjecture.

42The court may impute such income to a spouse as it considers appropriate in the circumstances, including where it appears that income has been diverted that would affect the level of support, where the spouse has failed to provide income information when under a legal obligation to do so, or where the spouse unreasonably deducts expenses from income: Ballanger v. Ballanger, 2020 ONCA 626 at para. 24. I see no basis on which to disturb the trial judge’s discretionary imputation of income to the appellant.

43I similarly see no basis on which intervene in the trial judge’s refusal to impute post-separation income to the respondent, based upon the appellant’s theory that the respondent can resume more lucrative aviation work. The judge’s reasons thoroughly canvassed the evidence of the income and career disadvantages that flowed from the breakdown of the relationship and the respondent’s primary responsibility for the child.

4. Were the ancillary support orders made in error?

44The appellant submits the trial judge made errors in providing for retroactive child and spousal support, in directing for a review of spousal support and in requiring him to secure his support obligations through a $500,000 life insurance policy. He also takes issue with the order for his contribution to play therapy as a s. 7 expense.

45None of these concerns identify a material error that justifies this court’s intervention.

46This was not a claim for true “retroactive” support such as after a lengthy period of delay for which support had not previously been claimed and which must involve consideration of specific factors to determine if the award was appropriate: D.B.S. v. S.R.B., 2006 SCC 37; Kerr v. Baranow, 2011 SCC 10. The application started in 2019 and claimed child and spousal support from November 2018, just after the child’s birth. The order necessarily fixed the past amounts owing for support, net of what he had already paid for child support, for that period between November 2018 and the release of the judgment.

47The order for spousal support does not address duration but provides that spousal support and quantum of life insurance required for security shall be reviewed in October 2025, when the child is seven years old. The appellant submits this was an error in principle as the judge’s reasons set out no basis for such exceptional relief: Leskun v. Leskun, 2006 SCC 25. I see no such error. Review orders, where justified by genuine and material uncertainty at the time of the original trial, permit parties to bring a motion to alter support awards without having to demonstrate a material change in circumstances: Leskun, at paras. 37-39. It is evident that the trial judge saw spousal support as being contingent to the circumstances. The review term reflects the respondent’s testimony that she planned to seek better career opportunities once the child is older.

48There is similarly no basis to intervene in the order that the respondent secure his support obligations through a life insurance policy. In any event, he produced evidence of having complied with this term of the order.

49The appellant did not articulate a basis on which he challenges the order for play therapy as a s. 7 expense. Pursuant to the terms of the final parenting order agreed to, the respondent has decision-making responsibility for the child. The trial evidence described the difficulties the parties had experienced to that point in agreeing on childcare expenses. It was reasonable for the trial judge to clearly identify those expenses for which the appellant’s contribution is required. There is no basis to intervene in this ground of appeal.

5. Did the trial judge fail to afford the appellant procedural fairness?

50Finally, the appellant submitted that trial fairness was prejudiced by several improper steps or orders made by the trial judge. I find no concerns that merit appellate intervention.

51The appellant was offended that the court allowed his family to be cross-examined about their knowledge as to whether the child was conceived by IVF therapy. The court acknowledged the appellant’s concern that his culture looks upon IVF negatively and that he did not want his family to treat the child differently. However, it was the appellant’s decision to call various family members to testify on his behalf to challenge the nature of his relationship with the respondent. The IVF planning and process was a material issue between the parties. It should therefore have been foreseeable to the appellant that his family’s awareness of the issue would be raised in cross-examination as relevant to the reliability of his family’s testimony.

52The appellant claims the court held him to a higher standard of financial disclosure than the respondent. He points to the court’s insistence that he produce T4s mid-trial but that the court did not apply a similar scrutiny of the respondent’s disclosure. This is not borne out by a review of the record. Unlike the appellant’s disclosure, the respondent’s financial statements did not suggest there was missing income or other financial information. The trial judge went to some length to give the appellant an opportunity to have the support calculations based on a realistic appreciation of his income and his earning capacity.

53The appellant also submits it was unfair and improper to impeach his credibility with the Immigration Appeal Board decision. That decision is a matter of public record and contains information that was within the appellant’s knowledge. There was nothing inappropriate about the respondent’s use of this record at trial.

Disposition

54For these reasons, I do not accept the appellant’s arguments that the trial judge erred. The appeal is dismissed. The respondent is the successful party and was required to expend a lot of time and resources in responding to both substantive and procedural matters within the appeal. She is entitled to her costs, which I fix at $20,000.

Justice K. Tranquilli

I agree____________________________

Justice B. Fitzpatrick

I agree____________________________