Court File and Parties

Date: September 18, 2025

Court File No.: D21955/02

Ontario Court of Justice

Between:

Meena Sharma Acting in Person Applicant

- and -

Keshav Sharma Acting in Person Respondent

Heard: September 15, 2025

Justice: S.B. Sherr

Reasons for Decision

Part One – Introduction

[1] The respondent, Mr. Sharma, has brought a motion to change the spousal support order of Justice Carolyn Jones, dated June 20, 2013 (the existing order). The existing order requires him to pay spousal support to the applicant, Ms. Sharma, of $1,620 each month. Spousal support was indexed annually as set out in subsections 34 (5) and (6) of the Family Law Act (the Act).

[2] Mr. Sharma seeks an order terminating his spousal support obligation to Ms. Sharma effective June 1, 2021. He claims that he has overpaid support and seeks repayment from her.

[3] Ms. Sharma seeks an order that spousal support be adjusted starting on December 1, 2023. She did not specify the amount of spousal support that she is seeking from that date. She asks that Mr. Sharma pay spousal support arrears at the rate of $447 each month and that Mr. Sharma's claim to adjust spousal support prior to December 1, 2023 be dismissed.

[4] The court relied on multiple affidavits and financial statements filed by the parties. The parties were permitted to give additional oral evidence and to cross-examine each other. Mr. Sharma was permitted to file additional documents at the hearing.

[5] Ms. Sharma was assisted by a Punjabi interpreter, although she chose to give most of her evidence and make her submissions in English. She also had her court materials professionally prepared by a legal clinic.

[6] The issues for this court to decide are as follows:

a) Has there been a material change in circumstances that warrants changing the existing spousal support order?

b) If so, on what date should the existing order be changed?

c) How much spousal support, if any, should be paid by Mr. Sharma to Ms. Sharma in each year from the date that the existing order is changed?

d) If Mr. Sharma still owes Ms. Sharma support arrears, how should they be paid?

e) If Mr. Sharma has overpaid spousal support, should Ms. Sharma be required to pay him back, and if so, on what terms?

Part Two – Background Facts

[7] Ms. Sharma is 68 years old. She is unemployed and is presently in receipt of Canada Pension Plan benefits (CPP), Old Age Security benefits (OAS) and Guaranteed Income Supplement benefits (GIS).

[8] Mr. Sharma is 72 years old. He was terminated from his employment as a manager at Discount Car and Truck Rental on May 28, 2021. He has been retired since then. He is also in receipt of CPP, OAS and GIS benefits.

[9] The parties were married in 1981 and separated in 2002.

[10] The parties had one child together. He is now 39 years old.

[11] On January 14, 2003, Justice Marvin Zuker ordered Mr. Sharma to pay child support to Ms. Sharma of $750 each month.

[12] Ms. Sharma brought an application for spousal support in 2011. Her application was not contested. On October 27, 2011, Justice Zuker ordered Mr. Sharma to pay spousal support to Ms. Sharma of $2,485 each month, starting on June 1, 2011.

[13] Mr. Sharma brought a motion to change that order. On June 20, 2013, Justice Carolyn Jones made the existing order. She rescinded the spousal support arrears owing at that time pursuant to Justice Zuker's order dated October 27, 2011.

[14] Mr. Sharma issued this motion to change on September 11, 2023. Ms. Sharma was served with his court materials on September 24, 2023.

[15] On January 5, 2024, Justice Jones suspended the existing spousal support order.

[16] Mr. Sharma owed spousal support to Ms. Sharma of $14,737 as of December 31, 2023.[1]

[17] Ms. Sharma issued her response to motion to change on April 24, 2024. She sought to change spousal support retroactive to the date of the existing order. She did not seek that relief at this hearing.

[18] The case was adjourned on a few occasions for Ms. Sharma to apply for GIS benefits. It was important for the court to know how much she would receive to assess the amount, if any, she should receive for spousal support on an ongoing basis. Ms. Sharma received her first GIS payment in August 2025.

Part Three – Legal Considerations

3.1 Legislation

[19] Section 30 of the Family Law Act (the Act) states that every spouse has an obligation to provide support for himself or herself and for the other spouse, in accordance with need, to the extent that he or she is capable of doing so.

[20] Subsection 33 (8) of the Act sets out the purposes of spousal support and subsection 33 (9) sets out the considerations for the determination of the amount, if any, and duration of spousal support. The court has considered these subsections in making its decision.

[21] Mr. Sharma's motion to change has been brought pursuant to subsections 37 (1) and (2) of the Act. These subsections read as follows:

Application for variation

37 (1) An application to the court for variation of an order made or confirmed under this Part may be made by,

(a) a dependant or respondent named in the order;

(b) a parent of a dependant referred to in clause (a);

(c) the personal representative of a respondent referred to in clause (a); or

(d) an agency referred to in subsection 33 (3).

Powers of court: spouse and parent support

(2) In the case of an order for support of a spouse or parent, if the court is satisfied that there has been a material change in the dependant's or respondent's circumstances or that evidence not available on the previous hearing has become available, the court may,

(a) discharge, vary or suspend a term of the order, prospectively or retroactively;

(b) relieve the respondent from the payment of part or all of the arrears or any interest due on them; and

(c) make any other order under section 34 that the court considers appropriate in the circumstances referred to in section 33.

3.2 General Spousal Support Principles

[22] Spousal support is not merely a consideration of needs and means. In determining the appropriate amount of spousal support, compensatory and non-compensatory considerations should be taken into account in an effort to equitably alleviate the economic consequences of the breakdown of the relationship. See: Rioux v. Rioux, 2009 ONCA 569, [2009] 97 O.R. (3d) 102 (OCA). Entitlement can be based on compensatory, non-compensatory or contractual grounds. See: Bracklow v. Bracklow.

[23] Where compensation is not the basis, a support obligation may arise from the marriage relationship itself when a spouse is unable to become self-sufficient. It can be based on need. Under this model, spousal support will be based on economic hardship resulting from the breakdown of the marriage, but not necessarily the roles assumed during the marriage. See: Bracklow, supra.

[24] In determining need, courts ought to be guided in part by the principle that the spouse receiving support is entitled to maintain the standard of living to which she was accustomed at the time cohabitation ceased. The analysis must consider the recipient's ability to support herself, in light of her income and reasonable expenses. See: Gray v. Gray, 2014 ONCA 659.

[25] The Court of Appeal in Fisher v. Fisher, 2008 ONCA 11, stated that the Spousal Support Advisory Guidelines (the SSAG), while only advisory, are a useful starting point to assess the quantum and duration of spousal support, once entitlement is established. The court wrote:

[103] In my view, when counsel fully address the Guidelines in argument, and a trial judge decides to award a quantum of support outside the suggested range, appellate review will be assisted by the inclusion of reasons explaining why the Guidelines do not provide an appropriate result. This is no different than a trial court distinguishing a significant authority relied upon by a party.

[26] In Mason v. Mason, supra, the Ontario Court of Appeal cautioned against courts defaulting to the middle range of the SSAG in a spousal support determination. Each case requires a contextual analysis.

[27] A strong compensatory claim suggests support in the higher end of the ranges for both amount and duration. See: Wharry v. Wharry, 2016 ONCA 930, paragraph 95.

[28] The depth of need can be a strong non-compensatory factor pushing the amount of support higher in the range. See: Bastarache v. Bastarache, 2012 NBQB 75.

3.3 Retroactive Spousal Support Principles

[29] In Kerr v. Baranow, 2011 SCC 10, the Supreme Court of Canada set out the following principles for determining retroactive spousal support claims that are applicable to this case:

a) The D.B.S. factors apply as modified for spousal support (circumstances of spouse are relevant as opposed to circumstances of the child).[2]

b) Presumptively, the date of the claim being issued is the start date for support, unless there is a reason to order otherwise.

c) The failure to bring a temporary motion should not be penalized as we should be encouraging people to avoid the cost of bringing temporary motions. This is particularly the case, where the claimant moves the matter quickly to trial after obtaining disclosure.

d) Spousal support has a different legal foundation than child support. A parent-child relationship is a fiduciary relationship of presumed dependency and the obligation of both parents to support the child arises at birth. It In that sense, the entitlement to child support is "automatic" and both parents must put their child's interests ahead of their own in negotiating and litigating child support. In contrast, there is no presumptive entitlement to spousal support and, unlike child support, the spouse is in general not under any legal obligation to look out for the separated spouse's legal interests. Thus, concerns about notice, delay and misconduct generally carry more weight in relation to claims for spousal support.

e) The general principles outlined in D.B.S. regarding timing are applicable to the spousal support context, with the presumptive commencement date being the date of effective notice, to a maximum of 3 years prior to the date of formal notice. As with retroactive child support, these presumptions are subject to adjustment based on judicial discretion.

f) D.B.S. emphasized the need for flexibility and a holistic view of each matter on its own merits; the same flexibility is appropriate when dealing with "retroactive" spousal support.

[30] Generally, the determination of spousal support, including retroactive spousal support, represents a greater exercise in discretion than the determination of child support. See: A.E. v. A.E., 2021 ONSC 8189; Kerr v. Baranow, 2011 SCC 10, at para. 208, 211; R.L. v. M.F., 2023 ONSC 6063.

[31] In Legge v. Legge, 2021 CarswellBC 3060 (CA), the court applied many of the child support principles set out in Michel v. Graydon, 2020 SCC 24, to a retroactive spousal support claim, importing language such as understandable reason for delay instead of reasonable excuse for delay and looking at hardship to the support recipient as well as to the support payor. Also see: Hevey v. Hevey, 2021 ONCA 740.

Part Four – Material Change in Circumstances

[32] A threshold issue is whether Mr. Sharma's retirement constituted a material change in circumstances.

[33] Ms. Sharma did not dispute that there has been a material change in Mr. Sharma's circumstances. However, she does not want his support obligation adjusted prior to December 1, 2023.

[34] In St. Jean v. Fridgen, 2017 ONSC 7680, the court found that it was reasonable for the payor to retire at age 65. The court wrote that whether retirement constitutes a material change in circumstances will depend on the circumstances of the case. The onus is on the applicant to satisfy the court that the application is made in good faith and on appropriate grounds.

[35] The court finds that Mr. Sharma's retirement constituted a material change in circumstances. He was terminated from his employment. It was not his choice. He was 67 years old at the time. It was a reasonable decision to retire.

Part Five – The Start Date to Change Support

[36] Mr. Sharma acknowledged at trial that he did not ask Ms. Sharma to change support or provide her with financial disclosure until he served her with his motion to change on September 14, 2023. This means that the date of effective notice of Mr. Sharma's claim was the same date as the date of the formal notice of his claim – September 14, 2023. As set out in Kerr, this is the presumptive start date for support to be changed.

[37] The court has discretion to depart from this presumptive start date. It will exercise its discretion and change the existing spousal support order starting on January 1, 2024, for the following reasons:

a) Mr. Sharma's notices of assessment from 2020 to 2023 show that he earned a total income for those four years of $229,778. He earned $76,554 in 2020, $92,996[3] in 2021, $30,558 in 2023 and $29,670 in 2024.

Mr. Sharma testified that his spousal support payment in the existing order was based on his annual income at the time of approximately $52,000.[4] Based on this income, he would have earned total income of $208,000 for those four years ($52,000 x 4 years).

Mr. Sharma received more income between 2020 and 2023 than the existing order contemplated. This militates against the court reducing his spousal support prior to January 1, 2024. It is not fair to change support for 2022 and 2023, without taking into consideration Mr. Sharma's huge increase in income in 2020 and 2021.[5]

b) Mr. Sharma did not provide financial disclosure to Ms. Sharma prior to September 14, 2023.

c) Mr. Sharma explained that he delayed bringing this case to court until Ms. Sharma was eligible for CPP and OAS payments. He understood the court was more likely to change his support obligation at that point.

d) Mr. Sharma accumulated support arrears of close to $7,000 in 2021, despite receiving $92,996.[6] This created hardship for Ms. Sharma and was blameworthy conduct.

e) Any hardship to Mr. Sharma in paying arrears can be addressed through a reasonable payment agreement.

f) Ms. Sharma has had considerable financial struggles and would suffer significant hardship if she did not receive the spousal support ordered prior to January 1, 2024.

Part Six – Spousal Support Payable After January 1, 2024

[38] Ms. Sharma's spousal support entitlement was based on compensatory and non-compensatory grounds. It was a 21-year-traditional relationship. She was a homemaker and the primary caregiver of the parties' child. Mr. Sharma financially supported the family. Ms. Sharma suffered significant financial disadvantage when the relationship ended. She continues to be entitled to spousal support. The issue will be Mr. Sharma's ability to pay it.

[39] Mr. Sharma's 2024 income was $31,023. Ms. Sharma's 2024 income was $9,042.[7] The SSAG monthly amounts generated are a low range of $475, a mid-range of $554 and a high range of $633. In determining the amount of spousal support, the court considered Ms. Sharma's continuing need for support and her compensatory support entitlement. It also considered the length of time Mr. Sharma has paid support, and his present financial circumstances that are very similar to those of Ms. Sharma. The court will order that Mr. Sharma pay Ms. Sharma spousal support of $500 each month for 2024.[8]

[40] Mr. Sharma provided a recent letter from Service Canada that he will receive CPP and OAS payments annually totaling $25,239.[9] Ms. Sharma's income remained the same as in 2024 until August 2025. In early 2025, she applied for GIS. In August 2025, she received her first GIS payment of $1,085.75 and a Guaranteed Annual Income Systems payment of $84. She also received a retroactive GIS payment of $1,798.

[41] The court will add the retroactive GIS payment to Ms. Sharma's income for the period from January 1, 2025 to August 1, 2025. This means her rate of annual income for this period was $10,840 ($9,042 plus $1,798).

[42] The SSAG monthly amounts generated for this period are a low range of $278, a mid-range of $324, and a high range of $370. Based on the same reasoning set out in paragraph 39 above, the court will order Mr. Sharma to pay Ms. Sharma $300 each month for this period.

[43] Starting on August 1, 2025, Mr. Sharma's annual income will be $25,239. Ms. Sharma's annual income will be $25,008. No spousal support will be ordered since the parties will have similar incomes.

Part Seven – Calculation and Payment of Arrears

[44] The statement of arrears from the Family Responsibility Office sets out that Mr. Sharma owed arrears of $14,737.42, as of December 31, 2023. He made further payments of $1,352.28 early in 2024. Mr. Sharma acknowledged he has made no further payments since then.

[45] Mr. Sharma's support arrears are calculated as follows:

Amount owing as of December 31, 2023	$14,737.42
Support accrued in 2024 ($500 x 12 months)	$6,000
Support accrued until July 31, 2025 ($300 x 7 months)	$2,100
Total	$22,837.42
Less support paid	$1,352.28
Amount owing	$21,485.14

[46] The court recognizes that Mr. Sharma has limited financial resources. It will permit him to pay the arrears at $250 each month. This will give him over seven years to pay the arrears.

Part Eight – Conclusion

[47] A final order shall go changing the existing order as follows:

a) Starting on January 1, 2024, Mr. Sharma shall pay spousal support to Ms. Sharma of $500 each month.

b) Starting on January 1, 2025, Mr. Sharma shall pay spousal support to Ms. Sharma of $300 each month.

c) Starting on August 1, 2025, Mr. Sharma shall pay no spousal support to Ms. Sharma.

d) Spousal support arrears are fixed at $21,485.14.

e) Starting on October 1, 2025, Mr. Sharma shall pay Ms. Sharma $250 each month towards his support arrears.

f) A support deduction order shall issue.

g) The Family Responsibility Office is requested to adjust its records in accordance with this order.

h) Nothing in this order precludes the Family Responsibility Office from collecting support arrears from any government source, such as HST/GST or income tax refunds, from lottery or prize winnings or from any inheritances.

i) If either party seeks costs, they are to serve and file written costs submissions by October 3, 2025. The other party will then have until October 17, 2025 to respond. The costs submissions shall not exceed three pages, not including any offer to settle or bill of costs. The costs submissions should either be delivered in person to the trial coordinator's office or emailed to the trial coordinator.

j) All other claims by the parties not addressed above are dismissed.

Released: September 18, 2025

Justice Stanley B. Sherr

Footnotes

[1] This is set out in the Statement of Arrears from the Family Responsibility Office that was filed by Mr. Sharma.

[2] This refers to D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 SCR 231 where the court sets out four main factors to consider in determining retroactive support claims being as:

1. The reason for delay
2. Conduct
3. Circumstances of the child
4. Hardship

[3] The additional income in 2020 was due to Mr. Sharma's receipt of CPP payments. In 2021, he also received a sizeable severance payment from his employer. Mr. Sharma also stated he received Employment Insurance "for 6 or 7 months". He was unsure when he received it.

[4] The court recognizes this figure should be higher because spousal support was indexed annually. However, even with indexing, Mr. Sharma would have earned more during those 4 years than was contemplated in the existing order.

[5] This does not even count the additional CPP and OAS income he earned prior to 2020.

[6] This is set out in the Statement of Arrears from the Family Responsibility Office.

[7] Ms. Sharma deposed she earned this income in paragraph 18 of her trial affidavit sworn on April 30, 2025.

[8] The software calculations will be attached to this decision.

[9] Mr. Sharma will earn less in 2025 because OAS overpayments are being deducted from his income.