Court of Appeal for Ontario

Date: 2025-09-22 Docket: COA-24-CV-1313

Justices: Miller, Zarnett and Madsen JJ.A.

Between

Serban Iliuta Applicant (Appellant)

and

Xinru Li Respondent (Respondent)

Counsel

Serban Iliuta, acting in person

Ira Marcovitch, for the respondent

Heard: September 5, 2025

On Appeal

On appeal from the order of Justice Tracy Engelking of the Superior Court of Justice, dated December 6, 2024, with reasons at 2024 ONSC 6115.

Reasons for Decision

Background

[1] The parties had a short marriage and are the parents of a child, E., who is seven years old. Before their marriage, they entered into a marriage contract, intended to govern property entitlements in the event of separation. Unable to agree on rights at separation, they attended a seven-day trial at which all legal issues arising from their separation were addressed. In a detailed and careful judgment, the trial judge determined issues including: parenting arrangements; imputation of income; child support, including s. 7 expenses and retroactivity; spousal support; the validity of the parties' marriage contract; and equalization.

[2] The appellant father appeals almost every aspect of the order and brings a motion seeking the admission of substantial fresh evidence, much of which would have been available at trial. It is evident that the appellant disputes the many findings of fact and credibility made throughout the decision, the determination of which fall squarely within the role of the trial judge and are not amenable to review by this court absent palpable and overriding error. He alleges that the trial decision contains 42 errors. We address the main arguments raised in this appeal.

Parenting Arrangements

[3] Recognizing the evident communication difficulties between the appellant and the respondent mother, the trial judge ordered that the respondent have sole decision-making authority on major parenting issues. This order was appropriate given the trial judge's acceptance of the mother's evidence regarding the appellant's verbally and physically abusive conduct towards the respondent during the marriage. The trial judge also accepted that the current apportionment of parenting time is in the child's best interests, while making an adjustment previously sought by the appellant. She noted the respondent's concerns and the appellant's acknowledgement that his alcohol use is – in the appellant's own words – on "the high side". While we recognize the appellant's ardent wish to have a 50/50 parenting arrangement, there is no error in the trial judge's conclusion on these issues, given her factual findings and correct statements of law. The path forward is through a variation application in the event of a material change, such as, for example, when the appellant has demonstrably reduced his alcohol use.

Imputation of Income

[4] The trial judge imputed an income to the appellant of $50,000 per year for 2020, 2021, and 2023, as well as from January 1, 2024, forward. He is a chemical engineer with a Ph.D. and a P.Eng. designation but is working as a delivery driver. As the trial judge found, it is evident that the appellant is highly educated, skilled, and sophisticated, yet he has not been employed in his profession since 2019 when he left a position paying approximately $90,000 per year. While the appellant acknowledges his underemployment, he says this is involuntary, arising initially from childcare obligations and medical issues, and subsequently from persistent sciatica and an inability to find suitable employment.

[5] Whatever the initial basis, the trial judge found that the appellant's decision to remain underemployed is voluntary. She found the scope of his job search too narrow, geographically and substantively; his unwillingness to accept employment that could overlap with parenting time unreasonable; and the diligence with which he has applied himself to his job search lacking. These findings were amply available on the evidence. We note, further, that while the trial judge heard expert evidence that the appellant could earn well over $100,000 per year given his qualifications, she imputed a relatively modest amount. There is no basis for this court's intervention on this issue.

Section 7 Expenses

[6] While the trial judge required the appellant to contribute to childcare expenses, she relieved him from contributing to extracurricular expenses, both of which are addressed by s. 7 of the Child Support Guidelines, O. Reg. 391/97. The appellant argues that this was internally inconsistent because his inability to afford one category of expense applied equally to the other. The trial judge did not err in her decision to treat childcare expenses differently from extracurricular expenses. The former were both reasonable and necessary, as they were incurred to enable the respondent to maintain employment, while the appellant was not consulted on and did not consent to the latter.

Spousal Support

[7] The trial judge declined to order spousal support payable to the appellant, stating that his entitlement was "exceeding[ly] thin." She determined that he has no claim for compensatory support and that any economic hardship he was experiencing at the time of trial resulted from his own actions and decisions, "specifically his voluntary underemployment." We cannot accept the appellant's argument that his financial circumstances were occasioned by disadvantage sustained during this short marriage. On the record, his narrow job search and his continued underemployment are the source of his present financial difficulties. The trial judge correctly stated the law, and we find no error in her application to the facts as she found them. Should the appellant wish to improve his financial circumstances he is encouraged, given his impressive education, to do so through a more flexible and expansive job search.

The Validity of the Marriage Contract

[8] The trial judge found that the marriage contract signed shortly before marriage was valid and that there was no basis to set it aside under s. 56(4) of the Family Law Act, R.S.O. 1990, c. F.3. The impetus for the agreement was the respondent's desire to protect her investment in the matrimonial home before marriage. The trial judge noted that the parties exchanged financial statements and that – while the appellant chose not to retain a lawyer for advice – as a "highly educated and sophisticated individual" and on the evidence at trial, it was clear that he understood what he was signing. Further, he acknowledged that he had the opportunity to obtain independent legal advice before signing and did not do so. Moreover, the trial judge held that it "accords with what is fair and equitable in the circumstances" for the respondent to receive credit for equity she initially acquired and then built up in her home. These were all findings that were available to her to make, and we see no basis to interfere with the decision to uphold the marriage contract.

Equalization

[9] The trial judge directed that the parties recalculate equalization on the basis, in part, that "[t]he Respondent is entitled to deduct 39% of the value of the matrimonial home at valuation date." While the appellant states that there is confusion in the words "equity," and "market value", the marriage contract is clear throughout that what is to be excluded from the respondent's net family property is "39% of the townhouse market value", while 61% is to be included in her net family property. At para. 103 of her reasons, the trial judge set out the value of the townhouse in the agreed amount of $657,500 (as derived from the Agreed Statement of Facts dated November 24, 2023, which does not appear to have been filed on appeal). She then set out how the parties came to agree that the respondent should be able to exclude 39% of the market value of the home at separation. The trial judge's interpretation of the contract on the record before her is entitled to deference: Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633, at para. 52. Therefore, we decline to intervene.

Disposition

[10] The motion for fresh evidence is dismissed, as is the appeal.

[11] Costs are set at $10,000 inclusive of HST and disbursements, payable to the respondent within 30 days.

B.W. Miller J.A.

B. Zarnett J.A.

L. Madsen J.A.

Footnotes

[1] Dawe J.A. granted an order dispensing with the necessity of filing an issued and entered order to perfect the appeal. The trial judge's original reasons for decision were issued on November 4, 2024. On December 6, 2024, the trial judge released amended reasons.

[2] At para. 97 of the trial judge's original reasons, income is imputed at $70,000 from January 1, 2024. However, in the order at the conclusion of the decision, at paras. 12-14, imputation is set at $50,000 for ongoing child support. This paragraph of the reasons has since been amended to read $50,000 instead of $70,000.