Court of Appeal for Ontario

Date: 2025-07-15
Docket: COA-24-CV-1381
Before: Thorburn, Copeland and Monahan JJ.A.

Between:
Olja Radivojsa Janic (Applicant/Respondent)
and
Milan Janic (Respondent/Appellant)

Appearances:

• Milan Janic, acting in person
• Matt Milczarczyk, for the respondent

Heard: 2025-07-08

On appeal from the order of Justice Jennifer Breithaupt Smith of the Superior Court of Justice, dated October 16, 2024.

Reasons for Decision

Background

[1] The parties were married and have two daughters. A final order was issued on January 6, 2021, in the respondent wife’s divorce application, dealing with parenting, expense sharing and support issues (the “Final Order”). In September 2022, the appellant father brought a motion for change, which resulted in the order now under appeal.

[2] The appellant challenges the motion judge’s determination of his child support obligations. He claims the motion judge erred in:

1. her treatment of financial evidence and by failing to recognize fraud in the respondent mother’s financial disclosure;
2. imputing income to him without properly reviewing and considering the financial and medical evidence about his psychiatric condition and consequent inability to work;
3. presiding over the motion for change when she was in a conflict of interest having presided over prior enforcement proceedings related to the Final Order; and
4. making an order that contravenes federal law. [1]

I. The Final Order

[3] The parties physically separated on February 25, 2019. The Final Order uses February 1, 2019 as the starting date for the payment of child support. The appellant’s 2018 income was $93,519.08, which generated a monthly child support obligation of $1,392 for the parties’ two children. Having paid no child support as at the date of the Final Order, the appellant’s arrears were fixed at $32,106 for February 2019 to December 2020.

[4] The appellant did not appeal the Final Order.

II. The Motion to Change

[5] The motion focused on three aspects of the Final Order: (i) ongoing child support; (ii) arrears of child support; and (iii) division of children’s expenses. The appellant sought to vary the apportionment of s. 7 expenses “to more accurately reflect the parties’ respective and actual income amounts”. The respondent asked that the income set out for the appellant in the Final Order continue indefinitely as imputed income based on his earning capacity at separation.

[6] Given that the children resided with the respondent since the date of separation used in the Final Order, the appellant’s income governed the amount of child support payable monthly. The respondent’s income was only relevant to determining her share of special expenses.

[7] The motion judge found that the appellant had been intentionally underemployed (or unemployed) since sometime in November of 2018. In her view, there was no basis to vary the income imputed to him for 2019 to 2021 in the Final Order when he did not participate in those proceedings. However, the motion judge found that a material change in circumstances had taken place in late 2021 and varied the appellant’s imputed income for 2022-2024.

[8] The motion judge attributed the $49,398 the respondent withdrew from a corporate account in 2018, to her income for that year. The motion judge found that, while the respondent could have provided more timely disclosure regarding the corporate account withdrawal, she did not intentionally mislead the court.

(1) Issue 1: Disclosure by the Respondent Mother

[9] The appellant claims the respondent filed false financial disclosure and perjured herself to the court (and the Canada Revenue Agency) when she failed to include the sums she withdrew from her corporate account in her income calculation.

[10] We see no error in the motion judge’s finding that, although the mother should have provided more timely disclosure of the corporate account withdrawals in 2018, which was before separation, there was no direct evidence of an intention to mislead. The motion judge was entitled to accept that the respondent forgot the corporate account withdrawals that took place before separation and to deem those sums to form part of her 2018 income bringing her 2018 income to $104,506.

(2) Issue 2: Imputing the Appellant Father’s Income

[11] Second, the appellant submits the motion judge wrongly dismissed psychiatric reports and expert opinion evidence regarding his mental health and consequent ability to earn income. As such, the motion judge erred in refusing to retroactively change his income figures for 2019 through 2021 that were based on findings of fact made in the proceedings that led to the Final Order.

[12] The appellant claimed he quit his employment due to stress in 2018 and admitted himself into a rehabilitation program in Serbia in September 2021. On appeal, he renews his argument that the Final Order should be amended to reflect the fact that he earned $18,425 in 2019, $27,235 in 2020, $15,025 in 2021 and nothing from 2022 to 2024, as reflected in his tax documents.

[13] We see no error in the motion judge’s refusal to change the imputed income set out in the Final Order for 2019-2021. “Imputation of income to a payor spouse is a fact-specific exercise that ‘depends on the circumstances of the family at issue’”: Korman v. Korman, 2015 ONCA 578, para 49, citing Bak v. Dobell, 2007 ONCA 304.

[14] The appellant refused to participate in the proceedings that led to the Final Order and only subsequently produced documentation to confirm his income at the motion to change. The motion judge appropriately relied on Colucci v. Colucci, 2021 SCC 24, para 63, to deny his request to vary his imputed income and recalculate his arrears. As the Supreme Court held, at para. 63:

The payor cannot rely on their own late disclosure as a change in circumstances to ground a variation order. This would defeat the purpose of imputing income in the first place and act as a disincentive for payors to participate in the initial court process. [Citations omitted.]

[15] The motion judge nonetheless recognized that there was a material change in the father’s circumstances in 2021 when he attended a treatment facility for addiction. However, the motion judge did not find the appellant incapable of any kind of work as (i) supporting evidence in the form of medical documentation and notes from physicians, were based exclusively on the appellant’s self-reporting and the treating psychiatrists filed no reports or affidavits upon which they could be cross-examined, (ii) none of the documents provided an assessment of employment capacity, and (iii) he received money from his family to meet his living expenses. Although the appellant claimed the money he received from family was a loan not a gift, no documentation was provided to confirm this.

[16] The appellant claims that the motion judge denied him procedural fairness by “dismissing expert psychiatric reports” as “self reported”. We see no merit in this argument. What the appellant characterizes as “reports” were consultation notes of two doctors who recorded the appellant’s self-reported symptoms, which the motion judge found to be “demonstrably unreliable”.

[17] In any event, the motion judge varied the appellant’s imputed income to $58,372 in 2022, $57,770 in 2023, and $57,256 in 2024, with the fluctuations being based on changes in tax policies for those years and funds from his family. Those funds were extended regularly and the amounts were substantial, and most of the monies appeared to have been allocated to discretionary spending. There was no evidence the gifts would not continue, nor was there evidence of the appellant’s parents’ understanding of “the true purposes and nature of the gifts.” The appellant had also received “purpose-specific” monetary gifts during the marriage. In the circumstances, the motion judge was entitled to include the monetary gifts in the appellant’s income for 2022 to 2024: Bak v. Dobell, 2007 ONCA 304, paras 74-75; Korman v. Korman, 2015 ONCA 578, paras 62-69.

[18] Based on these income calculations, the motion judge held that the appellant owed $890 in monthly child support in 2022, $881 in monthly child support in 2023, and $873 in monthly child support in 2024. The total amount of child support payable from February 1, 2019 to November 1, 2024, amounted to $78,702. The motion judge also set the respondent’s share of s. 7 expenses to 52% in 2022, 53% in 2023, and 55% in 2024.

[19] For these reasons, we see no basis to interfere with these determinations.

(3) Issue 3: Conflict of Interest

[20] In 2022, the motion judge heard a motion brought by the Director of the Family Responsibility Office for a Temporary Default Order requiring the appellant to make monthly payments toward ongoing child support and arrears. [2] The appellant submits that this gave rise to a conflict of interest when she subsequently heard the motion for change.

[21] “Judges are presumed to be impartial … To rebut the presumption of impartiality, a strict test is applied, one that asks what an ‘informed person, viewing the matter realistically and practically – and having thought the matter through – [would] conclude’”: R. v. Esseghaier, 2021 ONCA 162, para 19 (citations omitted). We do not see how this strict test could be satisfied in the circumstances.

(4) Issue 4: Conflict with Federal Law

[22] Finally, the appellant contends that the motion judge’s order conflicts with federal law, namely the Divorce Act, RSC 1985, c 3 (2nd Supp.) and the Federal Child Support Guidelines, SOR/97-175. We disagree. The motion judge’s order refers to and is consistent with these statutory instruments.

[23] He also claims that the motion judge’s order conflicts with the Criminal Code, RSC 1985, c C-46, and the Income Tax Act, RSC 1985, c 1 (5th Supp.). We disagree. Those statutes have no application to this proceeding.

III. Conclusion

[24] For the above reasons, the appeal is dismissed with partial indemnity costs payable to the respondent in the amount of $6,472.79 all inclusive.

“Thorburn J.A.”
“J. Copeland J.A.”
“P.J. Monahan J.A.”

[1] In his notice of appeal, the appellant raised an additional issue involving a purported pre-payment of child support but presented no written or oral argument on this point.

[2] See Director, Family Responsibility Office v. Janic, 2022 ONSC 3848, 74 R.F.L. (8th) 52.