COURT FILE NO.: FC-21-1781

DATE: 2024/12/06

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Serban Iliuta

Applicant

– and –

Xinru Li

Respondent

Richard Bowles for the Applicant

Ira Marcovitch as agent for Ian Vallance for the Respondent

HEARD: December 1, 4 – 8, 2023 and April 3, 2024

AMENDED REASONS FOR DECISION

The text of the original Reasons for Decision dated November 4, 2024, was amended on December 6, 2024 and the description of the amendment is appended.

JUSTICE ENGELKING

[1] The Applicant Father, Mr. Iliuta, seeks an order for a divorce, shared decision-making authority over the parties’ daughter, E.C.I. born August 4, 2018, a shared parenting schedule on a 2/2/5 rotation, as well as specific holiday time, child support to be paid on a set-off basis, security for child support, spousal support and an equalization payment of $219,569.

[2] The Respondent Mother, Xinru Li, disputes Mr. Iliuta’s application. She seeks an order granting her sole decision-making over and primary residence of E., specific parenting time for Mr. Iliuta, retroactive and ongoing table child support payable by him, validation of the parties’ marriage contract and an equalization payment payable by her of $81,446.25 Ms. Li seeks for Mr. Iliuta’s claim for spousal support to be dismissed.

[3] The issues to, therefore, be decided in this matter are:

1. What order in respect of decision-making authority over E. is in her best interests?
2. What parenting schedule is in the best interests of E.?
3. What is Mr. Iliuta’s income for support purposes from 2019 onwards?
4. What child support and Section 7 contributions are payable by Mr. Iliuta to Ms. Li from separation to December 31, 2023?
5. What child support is payable prospectively?
6. Should the parties’ marriage contract or “Prenuptial Agreement” dated August 19, 2016, be set aside? If so or if not, what is the equalization payment owing by Ms. Li to Mr. Iliuta?
7. Is Mr. Iliuta entitled to spousal support? If so, what is the appropriate quantum and duration of a spousal support order?

Background Facts

[4] The parties commenced cohabiting on September 27, 2015, married on August 27, 2016. On August 19, 2016, the parties had executed a “Prenuptial Agreement”, the validity of which Mr. Iliuta now disputes. One child, E., was born of the relationship in August of 2018. The parties separated on April 12, 2020, and lived separate and apart in the matrimonial home until August 21, 2021.

[5] From E.’s birth to May of 2019, Ms. Li was her primary caregiver. Ms. Li took maternity leave from shortly before her birth with a planned return in August of 2019.

[6] In May of 2019, Mr. Iliuta went on a short-term leave from his work, which he indicated was due to stress. Both he and Ms. Li were home with E. until Ms. Li returned to work in August. Mr. Iliuta voluntarily left his employment in September of 2019, after his short-term disability leave expired. Thereafter, Mr. Iliuta was E.’s primary caregiver until Ms. Li began to work from home in March of 2020 due to the COVID-19 pandemic.

[7] After the parties separated in April of 2020, Ms. Li took some time off work to spend with E. From May to July, E. would be in the care of Ms. Li during the mornings, after which she would return to work, and the child would be in the care of Mr. Iliuta in the afternoons. As of August of 2020, Ms. Li returned to work fulltime, however, she continued to work from home. Her working hours were essentially nine to five with a break at lunch. E. commenced attending daycare in July of 2020, and the parties continued to live separate and apart in the matrimonial home until August 21, 2021, on which date an altercation occurred and Mr. Iliuta was charged with one count of assault and one count of mischief. As a term of his release on that date, Mr. Iliuta was not allowed to return to the matrimonial home.

[8] Between August 21, 2021, and November 3, 2021, Mr. Iliuta did not have any parenting time with E. He brought a motion for parenting time in October of 2021, which he sought to have deemed urgent. Associate Justice Kaufman (as he then was) granted an interim without prejudice order of parenting time for Mr. Iliuta based on a proposal made by Ms. Li as follows:

a. Week One: i. Monday from daycare at 3:00 p.m. to Tuesday morning at daycare at 9:00 a.m. ii. Thursday from daycare at 3:00 p.m. to 7:00 p.m.

b. Week Two: i. Monday from daycare at 3:00 p.m. to 7:00 p.m. ii. Thursday from daycare at 3:00 p.m. to 7:00 p.m. iii. Saturday from 10:00 a.m. to 4:00 p.m.

[9] All exchanges were to be in front of the Ottawa Police Station and the parties agreed that Mr. Iliuta’s Criminal Release Conditions dated August 21, 2021, could be varied to permit the above. Associate Justice Kaufman also ordered that Mr. Iliuta pay Ms. Li $1000 for the motion “in any event of the cause”.

[10] This parenting time schedule remained in place until June of 2022, when the parties agreed to vary it to the following:

a. Week One: i. Tuesday from school/daycare (or 5:00 p.m) until Wednesday morning at school/daycare (or 9:00 a.m.). ii. Friday from school/daycare (or 5:00 p.m.) until Sunday at 10:00 a.m.

b. Week Two: i. Tuesday from school/daycare (or 3:00 p.m.) to 7:00 p.m. ii. Thursday from school/daycare (or 5:00 p.m.) to Friday morning at school/daycare (or 9:00 a.m.)

[11] Exchanges which were not at school or daycare continued at the Ottawa Polices Services building on Elgin Street until December of 2022, after which they were moved on consent to the parking lot of the Rideau Curling Club on Percy Street.

[12] This parenting schedule has continued since June of 2022.

Positions of the Parties

[13] Mr. Iliuta seeks to alter the parenting schedule to a 2/2/5 schedule. He proposes that E. be with Ms. Li on Mondays and Tuesdays, with him on Wednesdays and Thursdays, and that they alternate the weekends. Mr. Iliuta’s evidence is that he lives close to Ms. Li’s home and to E.’s school, and his position is that he sees no reason that the parties could not have a shared parenting regime, one which will see E. out of the care of neither parent for a lengthy period.

[14] In her draft final order submitted at the end of the trial, Ms. Li seeks for Mr. Iliuta’s parenting time to be as per the existing schedule. Ms. Li’s position is that E. is too young to be placed in a shared parenting regime, that she is very much accustomed to the existing schedule and that she, Ms. Li, has serious concerns about Mr. Iliuta’s (over) consumption of alcohol, beer in particular. She does not wish to expand Mr. Iliuta’s parenting time with E. beyond what it currently is due to these concerns.

[15] With respect to decision-making authority over E., Ms. Li seeks an order of sole final decision-making authority to her, after consultation with Mr. Iliuta. Ms. Li’s evidence is that she is afraid of Mr. Iliuta, due to some instances of domestic violence, more about which I will speak later. While she is willing to consult with Mr. Iliuta prior to making any final decision for E., she does not want to be subject to any control which he can or may assert over her through a requirement for shared decision-making authority.

[16] Mr. Iliuta seeks an order of joint decision-making authority. His evidence is that Ms. Li constantly made unilateral decisions for E., like for daycare enrollment, school enrollment and enrollment in extra-curricular activities. Mr. Iliuta does not necessarily disagree with some of the decisions made by Ms. Li, such as her enrollment in Elgin Street Public School, however, he wants to be informed and participate in the decisions made for her. This is particularly true for E.’s extra-curricular activities, especially if he is expected to contribute to their cost. Mr. Iliuta’s position, moreover, is that E. is “over-programmed” and could spend some time just being a kid.

[17] With respect to the issue of spousal support, Mr. Iliuta submits that he is entitled to same on a non-compensatory basis. His evidence is that despite his extensive efforts, he has been unable to obtain employment at a level commiserate with his qualifications and experience since he left his job in September of 2019. He, therefore, commenced working as a delivery person for a company called Fleet Flex in January of 2022, at a much-reduced salary. Ms. Li, on the other hand, continues to be employed with a salary that is several times that of Mr. Iliuta.

[18] Ms. Li submits that an income equal to that which Mr. Iliuta earned or was capable of earing prior to him voluntarily leaving his job should be imputed to him on an ongoing basis commencing in 2019. Her position is that he is voluntarily underemployed, and that he is not entitled to spousal support on this basis. Mr. Iliuta concedes that he is underemployed, but states that it is not voluntary, and he is in need. Ms. Li’s further position is that both retroactive child support owed to her and prospective child support should be calculated as per Mr. Iliuta’s imputed income.

[19] Regarding equalization, Mr. Iliuta’s position is that Ms. Li owes him an equalization payment of $219,569 Ms. Li’s position is that she owes him an equalization payment of $81,446.25. The difference between the two has mainly to do with the treatment of the “Prenuptial Agreement”, and whether it is valid or not, as well as the treatment of certain exclusions claimed by Ms. Li.

Analysis

Parenting Issues – Questions #1 and #2

[20] Section 16 (1) of the Divorce Act provides that in making a parenting order, the court shall “take into consideration only the best interests of the child of the marriage.” Section 16(2) dictates that primary consideration is to be given to the child’s “physical, emotional and psychological safety, security and well-being.” Section 16(3) sets out a non-exhaustive list of the factors the court shall consider in determining the child’s best interests as follows:

(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

(b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;

(d) the history of care of the child;

(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

(g) any plans for the child’s care;

(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;

(j) any family violence and its impact on, among other things, i. (i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and ii. (ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and

(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

[21] Subsection 16(4) provides:

(4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:

(a) the nature, seriousness and frequency of the family violence and when it occurred;

(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;

(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;

(d) the physical, emotional and psychological harm or risk of harm to the child;

(e) any compromise to the safety of the child or other family member;

(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;

(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and

(h) any other relevant factor.

[22] Section 16(6) provides that when allotting parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as consistent with her best interests.

[23] E.’s basic needs appear to be being met in the care of each of her parents. In the context of the current schedule, she appears to experience stability, but for on her alternating Tuesdays with Mr. Iliuta, which he indicates is confusing for E. and makes her anxious. According to Mr. Iliuta, E. does not understand why she must return to Ms. Li’s home at 7:00 p.m. on the alternating Tuesdays, when every other time she is in her father’s care, she stays overnight. This schedule does not make sense to Mr. Iliuta, and he has at times sought Ms. Li’s agreement to change it. In March of 2023, for example, Mr. Iliuta requested a change via an Our Family Wizard (“OFW”) note to expand his parenting time to include an overnight on the alternating Tuesday and to extend his weekends to Monday morning rather than Sunday night. He even suggested in that note that they forego the alternating Tuesday evening visit and just expand his weekends to Monday morning. Ms. Li did not agree to this suggestion and responded simply: “I respect and follow the court order for parenting schedule that is in place now. That is the parenting schedule I agree on.”[^1]

[24] Ms. Li does have some concerns regarding Mr. Iliuta’s parenting. She is of the view that Mr. Iliuta sometimes places E. in danger. Examples of these concerns include when Mr. Iliuta permitted E. to sit on the fan of an air conditioning unit, when he permitted her to play with a pizza cutter, when he permitted E. to play with a laser pointer and when he allowed her to play on a ladder he had fashioned as monkey bars by setting it up horizontally. Ms. Li’s view is that when it comes to E.’s safety Mr. Iliuta’s judgment is not always the best.

[25] Mr. Iliuta, on the other hand, finds Ms. Li to be overprotective of E. She does not allow E. to explore things freely and to try things out for herself. His evidence is that while he did sit E. on the air conditioner once, it was simply for her to feel the fan blowing on her, which she enjoyed. He was, additionally with her at the time and would not have allowed her to fall. Mr. Iliuta stated, moreover, that the plastic cover of the pizza cutter was still on when E. handled it and that the monkey bar he fashioned out of the ladder was fine, and E. enjoyed playing on it. Mr. Iliuta feels that Ms. Li interferes with his parenting choices when she complains about these and other issues.

[26] Ms. Li also has a serious concern about Mr. Iliuta’s consumption of alcohol, including while in a caregiving role. Ms. Li’s evidence in this regard, which was bolstered by photographs of voluminous empty beer cans in the parties’ backyard from prior to Mr. Iliuta’s departure from the home[^2], is that Mr. Iliuta drinks beer steadily, formerly from the time he came home from work to the time he went to bed, and currently, from the late afternoon/evening until he goes to bed. Because of his habit of drinking beer, often to the point of intoxification, Ms. Li does not entirely trust Mr. Iliuta’s care of E., especially for longer periods. Mr. Iliuta is also a very heavy smoker of up to two packs a day, in which he partakes outside.

[27] Ms. Li’s evidence is that when Mr. Iliuta was working, he habitually drank four to five tall cans in the evening. She indicated that when Mr. Iliuta was on STD between May and September of 2019, his consumption increased to eight to ten beers a day. This continued post-September of 2019, with Mr. Iliuta attending the beer store near their home “almost every day”. Ms. Li indicated that Mr. Iliuta drank around E. “all of the time”. Ms. Li indicated that Mr. Iliuta was frequently drunk; she described his face as turning a “not normal red color” when he was drunk, and indicated further that he had a propensity to become violent when drunk. Ms. Li also described Mr. Iliuta as passing out when drunk, and of driving while under the influence. She indicated that on E.’s first birthday, Mr. Iliuta took her to a friend’s home, where he drank with the friend and then drove home. Ms. Li described Mr. Iliuta as insisting that he is not impacted by the amount he drinks and that he drove after drinking all the time.

[28] Mr. Iliuta’s evidence is that he drinks a beer, or sometimes two, while preparing dinner for himself and E., and then one or two more before bed, depending on when he falls asleep. Mr. Iliuta acknowledged that he drinks “five or six days a week” and that he perhaps drinks “more than the average Canadian”, but he did not believe it presented a problem for him. Mr. Iliuta is Romanian by birth/upbringing, and he seemed to imply that Romanians, or eastern Europeans, drink differently than “the average Canadian”. Mr. Iliuta indicated that he does not drive while under the influence (something Ms. Li disputes, as noted above), and that he does not “get in trouble” from drinking. In cross-examination, however, Mr. Iliuta conceded that his alcohol consumption is “more than he’d like it to be”. In re-examination by his own counsel, Mr. Iliuta stated that his alcohol intake “is on the high side”, and that he’d like it to drop once he gets a job in his field and the issues with E. are settled.

[29] I find that Mr. Iliuta’s consumption of alcohol is indeed problematic. I come to this conclusion based on both Ms. Li’s evidence and his own. Mr. Iliuta’s insistence that alcohol is not a problem for him is consistent with Ms. Li’s evidence that he does not believe that he is impacted by his alcohol intake. Additionally, although Mr. Iliuta’s evidence is that the beer cans in the photographs are sometimes from different occasions, and that they were also being compiled for recycling, the sheer number of them does suggest that Mr. Iliuta not only drinks more than “the average Canadian”, but more than the average person, especially if that person is in a caregiving role to a young child. Until he takes steps to bring his alcohol intake down from “the high side”, I do not find that significantly increasing his parenting time with E. would be in her best interests.

[30] It is undisputed that E. has a good relationship with both of her parents. Indeed, her positive relationship with each belies Mr. Iliuta’s evidence as to the role each parent has played in her upbringing. E. is described by both Mr. Iliuta and Ms. Li as a bright, healthy and very good child; she is capable and accomplished and is described as a leader at school. Notwithstanding Mr. Iliuta’s view of his role versus that of Ms. Li, E. has clearly had the support of both of her parents in becoming the child who is so positively described.

[31] In relation to each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse, while Mr. Iliuta professed to be supportive of the Ms. Li’s relationship with E., he was quite dismissive of her capabilities as a parent. Mr. Iliuta’s evidence was that Ms. Li spent little time with E. as an infant, and that he had to “insist” that she be more involved in E.’s care. According to Mr. Iliuta it was he who had to encourage the bond between Ms. Li and E. to grow. In the intake form Mr. Iliuta filled out for mediation, in which the parties were involved between February and August of 2021, his description of Ms. Li’s parenting capacity is less than flattering, to say the least.[^3] Mr. Iliuta indicated: “My ex is far from being a textbook mother, loving and nurturing and supportive.” He went on to state:

Furthermore, I do not believe my ex would be a good role model for the baby because of her anxieties, depression, racism lack of social interactions, laziness and tolerance for a dirty environment…”

[32] Mr. Iliuta was also dismissive of Ms. Li’s feelings in relation to dealing with him directly, including by having exchanges take place at each other’s homes. Ms. Li’s reluctance to engage with Mr. Iliuta is directly connected to what she describes as her experience of domestic violence at his hands, again more about which I will speak later. Suffice it to say at this point, that Mr. Iliuta is not as supportive of Ms. Li’s relationship with E. as he would like to believe or would like the court to believe. One gets a sense that Mr. Iliuta considers Ms. Li inferior to him, and that she is tolerated, as opposed to celebrated, as E.’s other parent.

[33] As I have outlined above, the history of care for E. is that Ms. Li was her primary caregiver from birth to around August of 2019, when she returned to work after her maternity leave. Mr. Iliuta even disputes this, stating that her parents, who came from China to be with their daughter, were doing all the work between August 2018 and January 2019. In his testimony, however, Mr. Iliuta stated that Ms. Li’s mother was doing all the cooking and her father was doing the cleaning. This, of course, leaves Ms. Li as the one who was providing care to the child. Both parents were at home from May to August of 2019, though Ms. Li’s evidence is that nothing changed in terms of the care of E. She states that she continued to be E.’s primary caregiver to the end of her maternity leave. Thereafter, from September of 2019 to March of 2020, Mr. Iliuta was home with E. while Ms. Li worked. As of March 2020, Ms. Li was also home, and between May and August, she spent half days caring for E. In July of 2020, E. began to attend daycare, so although Mr. Iliuta continued to be at home between September of 2020 and August of 2021, E. was at daycare during the day. Since separation, Ms. Li has continued to have primary care of E., with Mr. Iliuta having parenting time as set out above. Based on the above, I find that Ms. Li has for the majority of E.’s life been her primary caregiver. Mr. Iliuta has attempted to place himself in that position, suggesting that Ms. Li has spent little time caring for E. and presenting himself as the stay-at-home dad. However, Mr. Iliuta’s sole primary care of E. occurred only between September of 2019 and March of 2020.

[34] E. is too young for the court to consider any express views and preferences on her part, though, as I have said, she clearly has a very good relationship with each of her parents.

[35] In relation to the ability and willingness of Mr. Iliuta and Ms. Li to meet the needs of E., I have already indicated that her basic needs are met in each household. While Mr. Iliuta has characterized her as overprotective, it does appear to be Ms. Li who is more attentive to E.’s exposure to potential harm.

[36] Regarding the ability and willingness of each of these parents to and cooperate on matters affecting E., Mr. Iliuta’s position is that Ms. Li is not responsive to him and does not appear willing to cooperate with him. She has, moreover, made unilateral decisions about E.’s daycare, school and extra-curricular activities, some of which he is informed about after the fact and some of which he is not. Mr. Iliuta states that he is more capable of communicating and cooperating than is Ms. Li. Mr. Iliuta, however, does not acknowledge the foundation for Ms. Li’s reluctance to engage with him, which is based on his treatment of her during and after the relationship. Mr. Iliuta is of the view that Ms. Li should “get over it” and communicate openly with him for the sake of E.

[37] Ms. Li, however, expresses being afraid of Mr. Iliuta, and does not want to engage with him directly to the extent that it can be avoided. Ms. Li described three instances of physical domestic violence perpetrated against her by Mr. Iliuta during the relationship as follows:

• On March 31, 2020, Ms. Li was working from home and watching E. at the same time. E. had a late afternoon nap, waking up at around 6:00 p.m. At around 9:30 p.m. Ms. Li was walking around the kitchen holding E. and Mr. Iliuta came to her and said he wanted to put E. to bed. Ms. Li stated that E. was not ready (due to her late nap), and Mr. Iliuta tried to grab E. from her arms, which Ms. Li did not permit. Mr. Iliuta then grabbed and pinched the back of Ms. Li’s neck very hard. She started yelling at him to stop or she’d call the police. It was very painful and Ms. Li gave E. to Mr. Iliuta, who unsuccessfully tried to put her to bed. After about 20 minutes, Mr. Iliuta returned E. to Ms. Li. Ms. Li describes Mr. Iliuta as being “very drunk” when this incident occurred.
• On April 11, 2020, Mr. Iliuta was feeding E. two big pickles at dinner time. Ms. Li asked him not to, as E. was too young to eat pickles. Mr. Iliuta told her shut up and go away. After telling E. to make funny noises while eating the pickles, Mr. Iliuta started to pinch and squeeze the back of Ms. Li’s neck. Ms. Li states that he did it twice, for about two minutes each time and that it was very painful. Ms. Li was very upset and went to sit on a sectional sofa. Mr. Iliuta took E. out of her highchair and sat across from Ms. Li on the sofa. Mr. Iluita took an iPad and threw it at Ms. Li, which hit her. Right afterwards Mr. Iliuta stated to E. “let your mother read a book to you”, and he threw a hardcover book at Ms. Li. Ms. Li asked Mr. Iluita why he treated her so badly, and stated that she was done with him and wanted a divorce. Ms. Li describes Mr. Iliuta as very drunk on this occasion as well, stating that his face was very red. Very shortly after this incident, Ms. Li’s counsel wrote a letter to Mr. Iliuta indicating that “the marriage has irretrievably broken down and there is no possibility of reconciliation”[^4].
• On August 21, 2021, which was a Saturday morning, Ms. Li prepared breakfast for E., after which Mr. Iliuta took her out for a bike ride. Ms. Li went up to her room to catch up on some work. At noon, she had a shower and then went back to work. The door to her room opened and Mr. Iliuta stated to her that she was a “fucking pig” and told her to go clean the “fucking house”. Ms. Li told Mr. Iliuta to leave her room or she would call the police. Mr. Iliuta then “shoved her face” several times. He grabbed the right arm of the chair she was sitting on and pulled it towards the door. Ms. Li ran to her bed to get her phone, which was plugged into a charger at the right-hand corner of the bed. Mr. Iliuta grabbed Ms. Li’s phone and pushed Ms. Li’s face so hard that she fell on the bed and her glasses flew off. Ms. Li started asking where her glasses were, and Mr. Iliuta kept shoving her face and neck into the bed. This lasted a few minutes and then Mr. Iliuta left the bedroom. Ms. Li looked for her glasses but couldn’t find them. She then went to her neighbour’s house and called the police. Ms. Li recalled looking for her phone with a police officer who attended the scene, who was not the police officer who testified in the trial. Ms. Li found her phone on a shoe rack at the front entrance of the house under a page of E.’s artwork.

[38] The Ottawa Police Services (“OPS”) attended the parties’ residence on August 21, 2021, after which Mr. Iliuta was charged with one count of assault and one count of mischief and released on conditions, which included not to attend within 100 meters of the matrimonial, school, place of work or any place Ms. Li was likely to be, and not to communicate directly or indirectly with Ms. Li, except in writing only, specifically relating to access to E. only. A few days later two more charges of assault were laid against Mr. Iliuta relating to the March 31 and April 11, 2020, incidents.

[39] Mr. Iliuta denies ever having physically assaulted Ms. Li. His evidence with respect to March 31, 2020, is that he had no recollection of the events, except there was something about feeding E. pickles. With respect to April 11, 2020, Mr. Iliuta’s evidence is that he was wanting to look at pictures with E. on the iPad, which was locked. He tossed it “next to” Ms. Li on the other side of the couch so that she could unlock it. He did not address the allegations that he had pinched and squeezed the back of Ms. Li’s neck or thrown a book at her.

[40] With respect to August 21, 2021, Mr. Iliuta’s evidence is that he took E. for a long bike ride at about 10:00 in the morning. Before leaving he “encouraged” Ms. Li to tidy up the living room. When Mr. Iliuta came back with E. around 1:00 p.m., the livingroom was still not clean. E. had fallen asleep in her bike seat and Mr. Iliuta put her down on the 1st floor couch. He then went upstairs to Ms. Li’s room, opened the door and, “in the heat of the moment”, he told her to clean the living room and called her a “filthy pig” and a “lazy cow”. Ms. Li screamed at him to get out of her room, so loudly that she woke up E. downstairs. Mr. Iliuta went downstairs to get E. and he heard Ms. Li “storming out of the house”. Mr. Iliuta took E. upstairs for a shower, after which he heard things downstairs, which turned out to be the police, whom he met on the 2nd floor. Mr. Iliuta put E. upstairs on the 3rd floor to watch a video and then went to talk to the police. He was asked where Ms. Li’s phone was, which he stated he did not know. Mr. Iliuta denied yelling at Ms. Li, indicating that he spoke to her in a “firm tone on of voice”. He stated that he did not step foot into Ms. Li’s bedroom, and that the whole interaction lasted approximately 50 seconds.

[41] Detective Nermin Mesic of the OPS was called to testify by Mr. Iliuta. Detective Mesic’s evidence is that when he attended the residence he met two females outside, one of whom was crying and in a panic of some sort. Ms. Li explained to him that Mr. Iliuta had grabbed her by the face and took her phone so she couldn’t call the police. Detective Mesic indicated that Mr. Iliuta spoke to him on the second floor of the home while holding E. Detective Mesic also stated that Mr. Iliuta informed him that he had stood in the door of Ms. Li’s room, “yelled at her” and called her a variety of names, including “dirty cow”. Mr. Iliuta advised Detective Mesic that Ms. Li got up and yelled back at him, which woke up E. He then went to attend to E.

[42] Ms. Li advised Detective Nermin that Mr. Iliuta had taken her phone, which is a red flag in domestic violence situations. Detective Nermin asked Ms. Li to provide a written statement which she indicated she couldn’t as she couldn’t find her glasses. Detective Nermin entered the bedroom in which the altercation occurred. He noted that the chair was flipped over in front of the unmade bed, and that Ms. Li’s glasses were on the bed next to the headboard. They appeared to him to have been put there. Detective Nermin concluded that while a verbal altercation of some sort took place, he did not believe that a physical one did. His conclusion was based on Ms. Li having no marks, damages or injuries, and there being no sign of a physical indent in the bed. Mr. Iliuta was nevertheless charged because road officers have no discretion in domestic violence cases, especially where it is alleged that a phone has been taken. Notwithstanding his opinion, Detective Nermin did concede in cross-examination that a physical assault can occur with little to no physical proof.

[43] Mr. Iliuta’s criminal charges were resolved by way of a Peace Bond dated June 10, 2022. Mr. Iliuta indicated that he agreed to a Peace Bond because he did not have to agree to any wrongdoing and because he did not want the matter unresolved prior to a court date in which he was going to be seeking more time with E.

[44] I find Ms. Li’s evidence to be credible as it relates to these incidents. Ms. Li was very detailed in describing the events of March 31 and April 11, 2020. Mr. Iliuta’s evidence, on the other hand, was vague and non-committal. Ms. Li indicated that she did not call the police prior to the August 21, 2021, incident because she did not have visible injuries and she believed one had to be “beat purple, red and blue” to call the police. Ms. Li, nevertheless, immediately indicated to Mr. Iliuta that she was done with his treatment of her, and she retained counsel within days of the April incident to communicate the official termination of the relationship to him.

[45] Regarding August 21, 2021, Ms. Li described a physical altercation which Mr. Iliuta denies occurred. Something occurred which frightened Ms. Li enough to run to her neighbour’s home to call the police, which she had never done previously, even when she was physically hurt by Mr. Iliuta. More telling about August 21, 2021, is that Mr. Iliuta was admittedly very angry that Ms. Li had not done what he told her to do, namely clean up the living room.

[46] Section 16(4) requires the court to take into account whether there is a pattern of coercive and controlling behaviour by a perpetrator of family violence or whether family violence causes a family member to fear for their own safety or for that of another person when considering its impact. In this case, I find that there are elements of both.

[47] These people were living separate and apart in the same home. Mr. Iliuta had neither the right to require Ms. Li to clean the living room in his absence nor the right to chastise her for not doing so. Yet, he was so angry upon his return that he (admittedly) marched directly up to Ms. Li’s private bedroom, invaded her personal space without regard to how she may feel about it, and, in the very least, yelled at her and called her names. For what? For not doing what he told her to do. His actions demonstrate elements of coercion and control, and they caused Ms. Li to fear for her own safety, whether he physically assaulted her or not, which incidentally, based on Ms. Li’s credible telling of the events, I believe he did.

[48] Given the above, I find that it would not be appropriate to make an order requiring Ms. Li to share decision-making authority with Mr. Iliuta. She has been harmed by Mr. Iliuta and she is fearful of him. He had also taken to recording Ms. Li, something he also did with his former employer, causing her to have a complete lack of trust in him and his intentions. There will, therefore, be an order for decision-making authority as proposed by Ms. Li. She will be required to advise Mr. Iliuta of the decision to be made and will seek his input. However, if no agreement is reached on the decision to be made, Ms. Li will have final decision-making responsibility.

[49] As it pertains to Mr. Iliuta’s parenting time, as indicated above, I do not find that a significant increase in same would be in the best interests of E. However, I do find that the alternating Tuesday visit, which is only for three hours, is also not in E.’s best interests. First, as Mr. Iliuta points out, it is disruptive in the sense that it requires a midweek exchange which is of no particular benefit to E. and may be confusing to her. Second, based on his own evidence that he requires flexibility in his work to accommodate his parenting time, it affects Mr. Iliuta’s ability to work and support his daughter and himself. I find that the better approach is that which was suggested by Mr. Iliuta in March of 2023 to forego the midweek, three-hour visit, and to extend his alternating weekends to Monday morning rather than Sunday evening.

[50] Exchanges shall continue to occur at the Rideau Curling Club until such time as the parties agree in writing that exchanges may occur at their respective homes.

Mr. Iliuta’s Income and Child Support Arrears - Questions #3 and #4

[51] Section 15.1(1) of the Divorce Act provides that a court may make an order that a spouse pay support for a child of the marriage.

[52] Ms. Li’s position is that Mr. Iliuta is required to pay child support and section 7 of the Federal Child Support Guidelines contributions to her from September 1, 2021, after he ceased to live in the matrimonial home on an income to be imputed to him due to his voluntary unemployment or underemployment for the years in question. Mr. Iliuta does not dispute that he must pay child support, however, he does dispute Ms. Li’s claim that he pay it on an imputed income. He also disputes that he should be required to contribute to certain s. 7 or extraordinary expenses.

[53] The following facts are agreed to by the parties[^5]:

• Throughout the relationship, Ms. Li was a federal government employee. She is currently employed by the Correctional Service of Canada as an accountant.
• Mr. Iliuta is currently employed by Fleetflex as a delivery driver for Amazon packages.
• Between March 25, 2013 and September 29, 2019, Mr. Iliuta was employed by Scapa North America.
• On September 16, 2019, Mr. Iliuta provided his notice of resignation to Scapa North America, effective September 29, 2019.
• Ms. Li’s line 15000 income for 2019 was $84,968.
• Ms. Li’s line 15000 income for 2020 was $97,714.
• Ms. Li’s line 15000 income for 2021 was $102,456.
• Ms. Li’s line 15000 income for 2022 was $100,517.
• Mr. Iliuta’s line 15000 income for 2016 was $86,512.
• Mr. Iliuta’s line 15000 income for 2017 was $90,391.
• Mr. Iliuta’s line 15000 income for 2018 was $91,019.
• Mr. Iliuta’s line 15000 income for 2019 was $52,862.
• Mr. Iliuta’s line 15000 income for 2020 was $21,005.
• Mr. Iliuta’s line 15000 income for 2021 was $14,942.
• Mr. Iliuta’s line 15000 income for 2022 was $71,794, of which $48,830.50 was a RRSP withdrawal.
• Neither have paid the child or spousal support since separation.

[54] Mr. Iliuta is 47 years of age. He a Chemical Engineer, having earned his degree at the Politehnica University in Bucharest, Romania in 2001. He is a licenced Professional Engineer with Professional Engineers Ontario. Mr. Iliuta additionally obtained a Ph.D. in Chemistry from Queen’s University in Kingston in 2006.[^6] As indicated above, from 2013 until September 29, 2019, Mr. Iliuta was employed by Scapa North America as a Chemical Engineer. Mr. Iliuta voluntarily left his employment with Scapa immediately before he was to return to work from his short-term leave, which he took as of May 2019.

[55] Mr. Iliuta’s evidence is that Ms. Li “made him” quit his job to stay home with E. so as not to pay for daycare. Ms. Li’s evidence is that, in fact, in May of 2019, she had registered E. to attend Dalhousie Daycare, which was to start in July. However, Mr. Iliuta went on short term disability from his employer at the end of May. He had expressed to Ms. Li that he did not get along well with his manager and colleagues. Ms. Li advised Mr. Iliuta that if he returned to work, E. would attend Dalhousie Daycare; however, if he chose not to return to work, E. could be withdrawn from Dalhousie. Mr Iliuta told Ms. Li he would think about it, and in September he resigned.

[56] Section 19(1) of the Federal Child Support Guidelines provides that a court may impute income to a spouse if: “(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or heath needs of the spouse.”

[57] While the parties may have decided that it made economic sense for Mr. Iliuta to stay home with E. rather than pay for daycare in September of 2019, and Mr. Iliuta was unemployed due to “the needs of a child”, that understanding was clearly over after the parties’ separation and when E. began attending daycare as of July of 2020. Mr. Iliuta’s unemployment was no longer “required by the needs of a child of the marriage.” As of that date, moreover, E.’s daycare fell within the category of expenses to which a contribution could be expected from Mr. Iliuta pursuant to Section 7(1)(a) of the Federal Child Support Guidelines.

[58] Mr. Iliuta started working for Fleet Flex in January of 2022. He indicated that he couldn’t possibly get a job before that as between October of 2020 and December of 2021, he was “crippled with sciatica”. Mr. Iliuta stated that he had back pain, couldn’t really stand up and had pain lying down. Mr. Iliuta did not present any medical evidence to support this contention. Interestingly, it was also during this period that he testified he took E. on a three- hour bike ride (August 21, 2021). Regardless, without medical evidence to support Mr. Iliuta’s contention that he could not work, I cannot find that to be the case.

[59] I find that Mr. Iliuta was, therefore, voluntarily unemployed from July of 2020 to December of 2021. However, Mr. Iliuta only left the family home as of August 21st of 2021. Ms. Li’s position is that he owes her child support from separation onwards.

[60] Mr. Iliuta is currently, admittedly, underemployed, given his professional qualifications and experience, and has been since January of 2022. The only question is whether he is voluntarily or involuntarily so.

[61] Ms. Li seeks an order imputing income to Mr. Iliuta which is commiserate with his qualifications and experience. She has tendered evidence of an expert, Mr. Dan Egarhos, who is a Certified Vocational Evaluator and International Certified Vocational Evaluator with 25 years of experience and who was qualified to give an opinion regarding the transferability of employment skills and the employment market as it related to Mr. Iliuta[^7]. Mr. Egarhos provided two reports to the parties and the court, his “Transferable Skills and Labour Market Report” completed in April of 2022[^8] and an updated “Transferable Skills and Labour Market Updated Report” dated December 6, 2022[^9], as well as an “Addendum” dated October 17, 2023 to the latter report[^10]. In his first report, Mr. Egarhos found, based on Mr. Iliuta’s relevant experience, educational credentials and then potential professional engineer designation, that the occupations considered most viable from a transferable skills perspective are:

• Chemical Engineer (vocational grouping includes Development/Processing Engineer, Project Manager and Researcher)
• Chemist (includes Research Chemist)
• R & D Project/Program Engineer
• Industrial Engineering and Manufacturing Technologist
• Technical Sales Representative[^11]

[62] At page 12 of his first report, Mr. Egarhos stated:

In conclusion, it is clear that Mr. Iliuta has considerable transferable skills given his experience and exceptional educational credentials. This expert has narrowed the list of compatible vocational groupings to the five listed above given that they are most representative of his attained skills and knowledge. Furthermore, research has demonstrated that there is labour market potential in all identified work fields provincially and in such nearby large communities as Toronto and Montreal.

[63] After a review of the existing employment market in Ottawa, the GTA and Montreal, Mr. Egarhos identified that the average medium and average high salaries for each of the above noted categories of employment in Ottawa, which he opined Mr. Iliuta was qualified to earn, were respectively as follows:

• Chemical Engineer - $86,667/$121,919[^12]
• Chemist - $63,952/$121,214[^13]
• R & D Project/Program Engineer – $84,437/$116,750[^14]
• Industrial Engineering and Manufacturing Technologist - $57,879/$76,843[^15]
• Technical Sales Representative - $65,484/$105,370[^16]

[64] Mr. Egarhos identified that Mr. Iliuta was “at least competitively employable” in all 50 job postings he found within Mr. Iliuta’s field in the regions of Ottawa, Toronto and Montreal. He also noted that it was deemed crucial that Mr. Iliuta expand his job search to larger communities given that there were a limited number of postings for some of the options in the Ottawa region.

[65] In the intervening period between Mr. Egarhos’ initial report and his updated report, Mr. Iliuta has obtained his professional Engineer Designation in Ontario (“P. Eng.”), which would render him eligible for “near the high end of the salary ranges” outlined above[^17]. Mr. Egarhos indicated in his updated report:

In fact, the occupations that are the most relevant now that Mr. Iliuta has secured his professional engineering credentials are Chemical Engineer, Chemist and R&D Project/Program Engineer. The high-end salaries associated with these vocations for all three regions researched exceed the $100,000 threshold.

Therefore, in conclusion, it is this expert’s opinion that on a balance of probabilities, given Mr. Iliuta’s educational credentials, professional work experience and recently secured P. Eng designation, that he could realistically command a starting salary exceeding $100,000 per year in the vocations of Chemical Engineer, Chemist and R&D Project/Program Engineer. Furthermore, his newly secured P. Eng not only enhances his employability going forward but also his opportunity to secure progressively higher earnings as he gains additional experience.[^18]

[66] In his Addendum, or report of October 17, 2023, Mr. Egarhos reviewed available job postings for Chemical Engineer, Chemist and R&D Project/Program Engineer in the Ottawa area. He found that the average salary for a Chemical Engineer was $101,337, while the high salary was $160,368[^19]. For a Chemist, the average salary was $77,022 and the high was $149,323.[^20] For a R&D Project/Program Engineer, the average salary was $85,009 and the high salary was $119,995. Mr. Egarhos concluded his report by indicating:

It stands to reason given Mr. Iliuta’s engineering/project manager experience, educational credentials (PhD in materials chemistry and Bachelor’s Degree in chemical engineering) as well as his recently acquired professional P.Eng credential that he could likely secure a starting salary approximating the high end of each earnings range outlined above.

[67] Mr. Iliuta’s evidence is that despite his best efforts, he has been unable to obtain employment in his field of expertise. He provided a document setting out both the contacts he made through CVE Inc., a company by whom he was assisted through his short-term disability provider, as well as the jobs for which he applied between June 20, 2019, and November 9, 2023.[^21] Mr. Iliuta also provided documentation supporting the initiatives in which he has been involved or the efforts he has made, which includes approximately 65 entries of inquiries, proposals or applications he has made within his field of expertise over that period.[^22]

[68] Mr. Iliuta has signed up to receive email notices for job postings with approximately 10 employment agencies, as well as to receive email alerts from the federal government. He has attempted to network through certain events, and even through opportunities which present themselves due to his delivery of packages. Although recommended by Mr. Egarhos, Mr. Iliuta has never availed himself of the services of a headhunter or recruitment firm.

[69] Mr. Iliuta indicated that he cannot practically work remotely in his field, as his work is “hands on”, or “on the plant floor”. Mr. Iliuta acknowledges that there are likely more jobs in his field in the GTA, Montreal or in Sarnia, where there are refineries; however, he only applies for jobs in the Ottawa area or within a reasonable commute of about 100 kilometers due to his parenting time responsibilities with E. Additionally, Mr. Iliuta indicated that he feels that his French is likely not strong enough to successfully obtain a position in Montreal, though he provided no independent evidence which would substantiate that is the case. Mr. Iliuta, moreover, did not receive a letter of reference from Scapa North America, presumably due to the circumstances under which he left, which may have affected, or affects, his prospects.

[70] Upon reviewing the job postings included in Mr. Egarhos’ reports, Mr. Iliuta indicated that he had applied for some of them, however some were in the medical field, in which he had no experience, and some were related to water treatment, another area in which he has no experience. Mr. Iliuta had been called to interview for a couple of the jobs for which he had applied, but to the date of the trial, he had not been successful in obtaining employment in his field of expertise. Mr. Iliuta noted that he has been out of the workforce in his field for four years, and that the longer one is away, the harder it is to return. He, nevertheless, remains hopeful that he will work as a Chemical Engineer in the future.

[71] In the meantime, Mr. Iliuta has been working as a delivery driver for a company, Fleet Flex, which delivers packages for Amazon. Mr. Iliuta provides his availability to work to his dispatcher, as do the other drivers for Fleet Flex, and then he is assigned available shifts. He works between 30 and 40 hours a week, doing eight-hour shifts from 10:00 a.m. to 8:00 p.m. on the days that he does not have E. in his care. Four such shifts amount to a 40-hour week. To the time of giving his evidence, Mr.Iliuta was being paid $19 per hour; however that was to change to $20 per hour commencing the week of December 11, 2023. Mr. Iliuta earns approximately $32,000 per year. Unless he can obtain work as an Engineer, Mr. Iliuta does not intend to change his job, as it is flexible and allows him work around his parenting time with E. Mr. Iliuta has also spent some of this time on his invention of the “Presto Sleeve”, a device designed to assist dressing children in outdoor wear, and on certain ideas he has to “save the planet”, an area in which he states there is an abundance of funding available. To date, however, neither has borne any financial fruits.

[72] In cross-examination, Ms. Li’s counsel was able to establish with Mr. Iliuta that, in fact, in the eight months leading up to the trial, Mr. Iliuta has applied for 13 jobs, and provided only three emails demonstrating that he had been turned down. It is unclear what happened to the other 10 applications and whether Mr. Iliuta rejected any offers. Additionally, Mr. Iliuta had applied for only six jobs between June of 2021 and January of 2023. Mr. Iliuta had not applied for any jobs at or provided his resume to Ottawa University, Carleton University or Algonquin College, nor had he investigated any remote work. Mr. Iliuta had not engaged a headhunter or recruitment firm in relation to work in his field. Mr. Iliuta indicated, additionally, that he doubted whether he could find another job outside of his field which paid more than and still had the same flexibility of Fleet Flex, however, he did not provide evidence of any efforts he had made to do so.

[73] Section 19(1)(a) of the Federal Child Support Guidelines provides:

19(1) The court may impute income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:

(a) the parent or spouse is intentionally under-employed or unemployed, other than where the under-employment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the parent or spouse.

[74] In Drygala v. Pauli, 2002 ONCA 41868, the Ontario Court of Appeal found that the questions which requiring answering in an imputation of income case are:

1. Is the spouse intentionally under-employed or unemployed?
2. If so, is the intentional under-employment or unemployment required by virtue of, in this case, the needs of child of the marriage?
3. If the answer to question #2 is negative, what income is appropriately imputed in the the circumstances?[^23]

[75] The Court of Appeal found that the appropriate approach for the court is that there is no need to find specific intent to evade child support obligations before income can be imputed to a spouse[^24].

[76] In paragraph 28, the court found:

The parent required to pay support is intentionally under-employed if that parent chooses to earn less than he or she is capable of earning. That parent is intentionally unemployed when he or she chooses not to work when capable of earing an income. The word “intentionally” makes it clear that the section does not apply to situations in which, through no fault or act of their own, spouses are laid off, terminated or given reduced hours of work.”[^25]

[77] Mr. Iliuta was not, through no fault of his own, laid off, terminated or given reduced hours of work when he left his employment in September of 2019. Although he indicated that it was due to stress, in a conflictual work environment to which he clearly contributed, Mr. Iliuta chose to leave his well-paid employment. He intentionally left and he intentionally remained unemployed from the end of September of 2019 to the beginning of January of 2022. Although he would have you believe that this was due to the needs of the child of the marriage, but for between September of 2019 and March of 2020 (or at the latest, August of 2020), the facts do not bear this out. I find that Mr. Iliuta was intentionally unemployed during this period.

[78] Additionally, I find that he has been intentionally under-employed since January of 2022. Again Mr. Iliuta attempts to suggest that the needs of E. require this, which is also not borne out by the evidence. Although he has unsuccessfully sought out jobs in his field of Chemical Engineering, Mr. Iliuta provided no evidence of having sought out any other kind of job but for delivering packages. Indeed, Mr. Iliuta expressed that, if not in his field of expertise, he is not interested in any job that does not provide him the flexibility which his delivery job with Fleet Flex does. Mr. Iliuta’s position appeared to be that, unlike Ms. Li, he is entitled to not work on the days that E. is scheduled to be in his care. This is, as Ms. Li’s counsel put it, a privilege that few have.

[79] Mr. Ilitua is required to financially support E. by making the income he is capable of making. He chose to stop working as a Chemical Engineer making approximately $90,000 in 2019. He chose to not work again until January of 2022. Then he chose to work at a job making only $32,000 because it afforded him the flexibility to not work on the days that E. is in his care.

[80] However, Mr. Iliuta is a highly educated, and highly sophisticated individual. According to Mr. Egarhos, he is capable of earning an annual income of well over $100,000 in his own field. At paragraph 45 of Drygala, Gillese J.A. indicated:

[45] When imputing income based on intentional under-employment or unemployment, a court must consider what is reasonable in the circumstances. The factors to be considered have been stated in a number of cases as age, education, experience, skills and health of the parent.[^26]

[81] Mr. Iliuta is only 47 years of age. He is healthy, highly educated, experienced and skilled. Since leaving his job at Scapa, Mr. Iliuta has obtained his professional Chemical Engineer credentials. Although he has not been successful in obtaining employment as a Chemical Engineer since he left Scapa, I find that he has the education and experience which would permit him to obtain employment, potentially in government or pedagogy, which would pay significantly more than as a delivery driver. He does not appear to have looked for any other jobs outside of his field of expertise, in or outside of the jurisdiction of Ottawa. His scope is, in my view, far too small for someone who has a responsibility to support not only himself, but a child. I find that Mr. Iliuta is intentionally under-employed and, while he should be capable of making an income at least equal to that he made during the last years of fulltime work as a Chemical Engineer, given his lack of success in finding work in that field, I find it is reasonable to impute an annual income to him of $50,000 for 2021 and 2023 onwards.

[82] In 2022, Mr. Iliuta’s Line 15000 income was $71,794, $48,830.50 of which consisted of an RRSP withdrawal. Mr. Iliuta’s position is that the withdrawal should not form part of his income for that year; Ms. Li’s position is that it should. RRSP income is presumptively part of a spouse’s income for child support purposes, but the presumption can be rebutted by the spouse seeking to exclude it demonstrating that including it would not lead to the fairest determination of income[^27]. Mr. Iliuta relies on Zigiris v. Foustanellas, 2016 ONSC 7528, wherein, at paragraphs 80 and 81, Justice Shelston declined to include RRSP income into the Respondent’s calculation of annual income for child support purposes because he had cashed them to pay his support obligations and legal fees, not wanting to attend at trial being in default of a temporary order. However, Mr. Iliuta has not paid any child support to date, though he did submit that he used both his TFSA and the withdrawn RRSP income in part to live off and in part to pay his legal fees.

[83] Mr. Iliuta also relies on Lapalme v. Hedden, 2012 ONSC 6758, wherein Justice Quinlan, at paragraph 43, found that Mr. Hedden had a justified deviation from section 16 of the Federal Child Support Guidelines method of determining income because he used his non-recurring withdrawal from his RRSP to pay legal fees, and he did not include it in Mr. Hedden’s income for the year in question. However, that was a case in which the court applied section 17 of the Guidelines, and averaged Mr. Hedden’s income over three years.

[84] Ms. Li relies on the Ontario Court of Appeal’s statement at paragraph 22 of Ludmer v. Ludmer, 2014 ONCA 827, that RRSP income is presumptively part of a spouse’s income for support purposes because in is included in the heading “Total Income” on the T1 tax form. Ludmer also references that the inclusion of RRSP proceeds in income is not mandatory, and that the court has the discretion to resort to the use of Section 17(1) of the Guidelines to determine “an amount that is fair and reasonable in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount during those years. [Empasis added].” If I average Mr. Iliuta’s imputed income for 2020 and 2021 of $50,000 each, and his total income for 2022 of $71,794, it renders his income for each year to be $57,264.67, which is more than I have imputed to him. I find, therefore, that the fairest determination for child support purposes, therefore, is to include Mr. Iliuta’s RRSP withdrawal as part of his income for 2022, rather than applying subsection17(1) of the Guidelines.

[85] Ms. Li has claimed child support commencing from the date of separation. Her evidence is that Mr. Iliuta contributed nothing to the maintenance of the home and paid only for groceries for himself and E. after the date of separation. He did, however, continue to provide care to E. for part of the time, at least until she began to attend daycare in August of 2020. I am not inclined to find that child support should be in pay while the parties lived separate and apart in the same home. Minimal as it may have been, Mr. Iliuta was contributing something to E.’s care, be it in groceries or time. I find that Mr. Iliuta’s child support obligation shall commence as of September 1, 2021.

[86] On an annual imputed income of $50,000, Mr. Iliuta is required to pay child support of $450 per month. Mr. Iliuta, therefore, owes Ms. Li child support arrears of $1,800 ($450 per month x 4 months) for the period of September 1, 2021, to December 31, 2021.

[87] On his actual income of $71,794, Mr. Iliuta is required to pay child support of $670.62 per month. Mr. Iliuta, therefore, owes Ms. Li child support arrears of $8,047.44 ($670.62 per month x 12 months) for the period of January 1, 2022, to December 31, 2022.

[88] On an annual imputed income of $50,000, Mr. Iliuta is required to pay child support of $450 per month. Mr. Iliuta, therefore, owes Ms. Li child support arrears of $5,400 ($450 per month x 12 months) for the period of January 1, 2023, to December 31, 2023.

[89] Total arrears of child support for the period of September 1, 2021, to December 31, 2023 are, therefore, fixed at $15,247.44.

[90] Ms. Li has also made a claim for contributions from Mr. Iliuta for section 7 expenses for E. over the same period. The most significant expenses are daycare, including extended day programing after school, and summer camps, for both of which Ms. Li has exclusively paid since E. began attending daycare in August of 2020. E. has also participated in swimming lessons, piano lessons, skating lessons, T-ball, gymnastics and ballet.

[91] Mr. Iliuta’s position as it relates to section 7 expenses is, first, that Ms. Li has unilaterally made decisions about what E. would be involved in, without seeking his input or consent; second, that E. is “over-programmed” and many of the expenses are unnecessary or unreasonable, and third, he simply cannot afford to contribute to them.

[92] Section 7 of the Federal Child Support Guidelines provides that a court may apportion certain expenses, “taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to separation.” Childcare expenses are considered “special”, which extracurricular expenses are “extraordinary”.

[93] I find that Mr. Iliuta has a responsibility to contribute to E.’s special expenses related to daycare, extended care (after school care) and summer camps which were necessitated during the summer after E. started school. They are “child care expenses incurred as a result of the employment…of the spouse who has the majority of the parenting time” as per section 7(1)(a) of the Guidelines. I exercise my discretion to not require a retroactive contribution from Mr. Iliuta for E.’s special or extraordinary expenses, based both on him neither being consulted on them nor providing his consent, specifically to pay for them, and them not being necessary and reasonable in relation to Mr. Iliuta’s means.

[94] The expenses, therefore, to which Mr. Iliuta will be required to contribute are as follows:

• Dalhousie Day Care – January 1 to December 31, 2020, of $7,597[^28]
• Dalhousie Day Care – January 1 to December 31, 2021, of $14,301.99[^29]
• Dalhousie Day Care – January 1 to December 31, 2022, of $6,152.18[^30]
• Ottawa Carleton District School Board – January 1 to December 31, 2022, of $698.22[^31]
• Ottawa Carleton District School Board – January 1 to October 31, 2023, of $1097.96[^32]
• Pedalheads Summer Camp 2023 of $456[^33]
• RA Centre Summer Camps 2023 of $255, $255 and $205.[^34]
• Carleton University Summer Camps 2023 of $355.59, $289, and $355.59[^35]

[95] In 2020, these expenses equaled $7,759.35; Mr. Iliuta’s proportionate share (33.85%), based on an imputed income to him of $50,000 and Ms. Li’s income of $97,714 is $3,014.51. The expenses in 2021 equaled $14,301.99; Mr. Iliuta’s proportionate share (32.80%), based on an imputed income to him of $50,000 and Ms. Li’s income of $102,456 is $4,691.05.

[96] The expenses in 2022 equaled $6,850.40; Mr. Iliuta’s proportionate share (41.67%), based on his actual income to him of $71,794 and Ms. Li’s income of $100,517 is $2,854.56. For 2023, the expenses equaled $3,269.57. However, the extended care program receipts were only provided to October 31, 2023. If November and December are added at an average of $108 per month, the total for 2023 is $3485.57; Mr. Iliuta’s proportionate share (33.22%), based on an imputed income to him of $50,000 and Ms. Li’s 2022 income of $100,517 is $1157.91. Mr. Iliuta, therefore, owes Ms. Li $11,718.03 for arrears of section 7 expense contributions for E. from the date of separation to December 31, 2023.

Prospective Child Support - Question #5

[97] Commencing January 1, 2024, Mr. Iliuta shall be required to pay table child support based on either an imputed income of $50,000 or his actual income, whichever is higher. He shall also contribute his proportionate share to section 7 expenses as of that date based on the same and on Ms. Li’s income for 2023. On a go forward basis, neither party shall incur an extraordinary expense for which they expect a contribution from the other without the prior written consent of the other, such consent not to be unreasonably withheld.

Validity of the Domestic Contract and Equalization - Question #6

[98] On August 19, 2016, the parties signed a domestic contract entitled “Prenuptial Agreement”[^36] The Agreement provides, inter alia:

Under the title “Background”

B. The Parties wish to enter into this Agreement to provide for the status, ownership, and division of property between them, including future property owned or to be acquired by either or both of them.

D. The Parties recognize the possibility of unhappy differences that may arise between them. Accordingly, the Parties desire that the distribution of any property that either of both may own will be governed by the terms of this Agreement and, insofar as the statutory or case law permits, intend that any statues that may apply to them, either by virtue of Federal or Provincial legislation, will not apply to them.

E. The Parties acknowledge that they have been provided with a reasonable period of time to review this Agreement.

F. The Parties also acknowledge that they have had an opportunity before signing this Agreement to consult with independent legal counsel in their jurisdiction and of their choice. Notwithstanding they have chosen to expressly and voluntarily waive their right to legal counsel.

G. The Parties have disclosed to their satisfaction all assets and liabilities that each may have and voluntarily and expressly waive any other rights to disclosure of the property or financial obligations of each other beyond the disclosure provided.

H. Each Party agrees and affirms THAT:

a. The Parties did execute the Agreement voluntarily;

b. This Agreement was not unconscionable when it was executed;

c. Prior to the execution of the Agreement, both Parties were provided a fair and reasonable disclosure of the property or financial obligations of the other Party;

d. They have, or reasonably could have had, an adequate knowledge of the property or financial obligations of the other Party; and

e. They entered into this Agreement freely and under no duress or undue influence on their decision by the other Party.

[99] Under the titles “Property” and “Debts”, the parties acknowledge that they will remain as to property owned and debts owed individually, and that jointly owned property would be shared equally upon separation or death of one of the parties.

[100] Under the title “Matrimonial Property Release” is the following at paragraph 11 of the Agreement:

11. The Parties covenant and agree that they are aware of the provisions of the Family Law Act of Ontario, and that it is their intention that the provisions of the Family Law Act will not apply to the status, ownership, interest and division of their property, either jointly or separately owned, nor to their future property, whether real or personal, and owned by either one or both of them, and the Parties further covenant and agree that it is their desire and intent by the terms of this Agreement to contract out of the provisions of the Family Law Act pursuant to Sections 21 and 52 of the said Act, and to make a full and final settlement of all matters of property, both real and personal, previously and presently owned by either of the Parties or to be acquired by either of the Parties in the future.

[101] Paragraphs 13 and 14 of the Agreement are identical and state:

13. Xinru owns a townhouse at 18 Academy Private, Ottawa, Ontario K1R 1B6. Xinru will bring this townhouse into the marriage with Serban and use this townhouse as their primary residence.

The townhouse was purchased by Xinru in 2014 at the value of $515,000. Down payment was $182,500. Xinru has been paying the mortgage and property taxes by herself until she lived together with Serban in October 2015. The townhouse was 39% paid off as of October 1, 2015.

Serban and Xinru both agree that in the event of a divorce, 39% of the townhouse market value at the date of divorce should be credited to Xinru and this portion is not considered as net family property. Serban and Xinru both agree that the remaining 61% of the townhouse market value at the date of divorce is considered as net family property.

[102] Both parties executed the agreement in front of a notary public, Rebecca Rosenstock on August 19, 2016. Attached to the Agreement are Certificates of Acknowledgement signed by Ms. Rosenstock indicating that both Mr. Iliuta and Ms. Li acknowledged:

a. That he/she is aware of the Agreement and understands the provisions of same. b. That he/she is aware of the possible claims to property that he/she may have under the existing Provincial legislation and that he/she intends to give up these claims to the extent necessary to give effect to the Agreement. c. That he/she is executing this document freely and voluntarily without any compulsion on the part of [the other].

[103] In an Agreed Statement of Facts executed by the parties on November 24, 2023, they agreed that the value of the matrimonial home, 18 Academy Private, Ottawa, as of the date of separation was $657, 500.[^37]

[104] Pursuant to the agreement, therefore, the valuation date value of the matrimonial home, of which Ms. Li is the sole owner, and which the parties agree was $657,500, was to be reduced by 39% in the net family property calculations.

[105] Mr. Iliuta seeks an order setting aside the Prenuptial Agreement on the basis that he did not understand it and he was coerced into signing it.

[106] Section 52 of the Family Law Act provides that persons who are married or intend to marry may enter into an agreement relating to “their respective rights and obligations under the marriage or on separation, on the annulment or dissolution of the marriage or on death”, including regarding “ownership or division of property.”

[107] Subsection 55(1) provides that a domestic contract is unenforceable unless it is made in writing, signed by the parties and witnessed.

[108] Mr. Iliuta and Ms. Li’s “Prenuptial Agreement” was made in writing, signed by them both and witnessed by Ms. Rosenstock. It is, therefore, an enforceable domestic contract.

[109] Subsection 56(4) of the Act provides:

(4) A court may, on application, set aside a domestic contract or a provision in it,

(a) If a party failed to disclose to the other significant assets, or significant debts or other liabilities, existing when the domestic contract was made;

(b) If a party did not understand the nature or consequences of the domestic contract; or

(c) Otherwise in accordance with the law of contract.

[110] The agreed facts in relation to this issue are as follows[^38]:

• The parties commenced cohabiting on September 27, 2015. On that date, Mr. Iliuta moved into the home of Ms. Li at 18 Academy Private, Ottawa, Ontario.
• Ms. Li purchased 18 Academy Private on August 29, 2014, for a purchase price of $515,000. On the same date, a first mortgage was registered against the property in the principal amount of $332,500.
• The parties signed the Prenuptial Agreement on August 19, 2016.
• The parties married on August 27, 2016.

[111] Mr. Iliuta’s evidence is that the first he ever heard of Ms. Li’s desire to have a contract regarding what would happen to the value of the matrimonial home upon dissolution of the relationship was approximately two weeks before their wedding scheduled for August 27, 2016. He indicated that Ms. Li brought up the idea of a prenuptial agreement because, according to him, she wanted to protect her down payment in the home (as opposed to her equity) if things didn’t work out. He stated that he did not like the idea, because “it felt like a trap so close to the wedding”, but he said “ok”. When pressed in cross-examination on why he said “ok” if he wasn’t comfortable with the idea, Mr. Iliuta stated that he did not want to create friction with his bride to be. Mr. Iliuta acknowledges that he did not seek legal advice prior to signing the contract but felt there was little time to do so from when the contract was presented to him to the date of the wedding.

[112] Ms. Li’s evidence is that she went to a work conference in November of 2015, at which she told some colleagues that Mr. Iliuta had moved into her home with her. Her colleagues suggested that she may want to protect her property through a prenuptial agreement. The very same day that Ms. Li returned from the conference, she spoke to Mr. Iliuta about a prenuptial agreement. His first response was to tell her not to listen to her friends’ nonsense. According to her, Mr. Iliuta stated: “I am a man of honor; I will not touch your down payment or mortgage payments to the day I moved in.” Ms. Li stated that they also discussed whether her “credit” should be in a dollar value or by way of a percentage.

[113] After this discussion in November of 2015, on December 2, 2015, Ms. Li contacted her bank to request a mortgage statement so that she and Mr. Iliuta could determine the approximate balance of the mortgage as of the date that he moved into the home. The response from TD Canada Trust to her query was also dated December 2, 2015, and indicated that the balance on her mortgage as of that date was $309.698.57.[^39] Ms. Li indicated that this was as far as the discussion went in November and December of 2015. According to Ms. Li, she and Mr. Iliuta did not talk about numbers at this time, only about the idea.

[114] The parties got engaged in April of 2016, and in June of 2016, they organized their wedding for August 27, 2016. Ms. Li indicated that she did not expect to be able to arrange a wedding that quickly, however, the venue was available and so they booked it. Ms. Li again raised the issue with Mr. Iliuta in early August of 2016, stating that they needed to sign an agreement before the wedding. Ms. Li stated she started to research what it would cost them to have a lawyer prepare an agreement[^40], which she discovered would be about $4,000. She stated that she advised Mr. Iliuta of this, and his view was that it was too expensive, and he didn’t want to do it. Ms. Li then stated to Mr. Iliuta that they could look for a free template of an agreement on the internet, to which he agreed. She found one on LawDepot.ca, which he agreed they could use.

[115] On August 16, 2016, Ms. Li contacted her bank to request a mortgage statement as of October 1, 2015, but was advised it could take between 7 to 10 days to get it. She and Mr. Iliuta, therefore, calculated the percentage of her equity in the matrimonial home as of October 1, 2015, based on the mortgage balance she had received on December 2, 2015, adjusting it down from $205,302 ($515,000 - $309,698) to $202,000. This resulted in the percentage of her equity in the home as of October 1, 2015, being 39.27% ($202,000/$515000), which Mr. Iliuta suggested be rounded down to 39%, to which Ms. Li agreed. Ms. Li also contacted Ms. Rosenstock on August 16, 2016, and made an appointment with her to notarize the agreement on August 19, 2016, at 3:00 p.m.

[116] On the morning of August 18, 2016, Ms. Li sent Mr. Iliuta the following email[^41]:

Hey, Honey,

Please find attached prenup agreement. This is the paragraph I want to add to our prenup. Everything else is standard. Let me know what you think and send it back to [sic] once you review and edit it. I need to create a full prenup document online.

Thank you,

Xinru

[117] The paragraph referenced is the same as that contained in paragraphs 13 and 14 of the signed August 19, 2016, agreement. At 4:30 p.m., Ms. Li sent Mr. Iliuta a PDF version of the draft document and asked him to print a copy and bring it home[^42]. Ms. Li indicated that she put the paragraph she had earlier in the day sent to Mr. Iliuta in two places (paragraphs 13 and 14), because the template contained two places for the division of property.

[118] On the evening of August 18, 2016, Mr. Iliuta brought home a paper copy of the agreement, which he reviewed. Ms. Li asked Mr. Iliuta what he thought of it, and he informed her that he was ok with the clause she had written. They both prepared Financial Statements setting out their assets and debts that evening, and on the morning of August 19, 2016, Ms. Li sent the parties’ Financial Statements to Mr. Iliuta and asked him to print two copies[^43].

[119] Mr. Iliuta picked up Ms. Li and drove her to the meeting with Ms. Rosenstock. They gave two copies of the Prenuptial Agreement to Ms. Rosenstock and told her that it was what they wanted notarized. Ms. Li indicated that after the document was signed, she and Mr. Iliuta had no further discussion about the contract.

[120] Again, I prefer that evidence of Ms. Li over that of Mr. Iliuta. Ms. Li’s evidence is not only detailed, but also corroborated by documentary evidence. Mr. Iliuta was, once again, vague and non-specific. Although he denied the parties ever having any conversation about a prenuptial agreement prior to August of 2016, and specifically that a conversation took place in late November or early December of 2015, he did recall that Ms. Li obtained information about her mortgage balance at that time. That Ms. Li did so is, in my view, consistent with her evidence that they discussed preserving her equity in the home prior to their cohabitation. Additionally, Ms. Li provided evidence of her broaching law firms in mid-August of 2016, which is consistent with what she told the court. Ms. Li was very specific about how the calculation was made, using the December 2, 2015, mortgage balance and deducting five biweekly mortgage payments that had been made after October 1, 2015. Mr. Iliuta had to have been involved in these discussions and calculations, as, otherwise, he would have questioned how 39% was arrived at when the draft provisions were sent to him on the morning of August 18, 2016, by Ms. Li. Indeed, if he thought that Ms. Li was seeking to protect her down payment, which he suggested in his evidence and with which he agreed, rather than her equity in the home to October 1, 2015, Mr. Iliuta could have simply said to her: “I agree that you receive credit for your down payment of $182,500”. He did not do so. In fact, he expressly agreed that she would receive credit for 39% of the valuation date value of the matrimonial home.

[121] Mr. Iliuta’s evidence that he did not understand the agreement, moreover, lacks credibility. First, as I have already indicated, Mr. Iliuta is a very highly educated and sophisticated individual. He has had to review and/or sign many contracts in the context of his employment as an Engineer, and otherwise. Second, the agreement is very straight forward. Mr. Iliuta moved into the home Ms. Li owned on September 27, 2015; it is logical and reasonable that she wanted to ensure that she would receive credit for the down payment and mortgage payments she had made prior to their cohabitation. Third, Mr. Iliuta acknowledged in the agreement itself that he signed the agreement voluntarily, that it was not unconscionable when it was executed, that he had fair and reasonable financial disclosure from Ms. Li and adequate knowledge of her property and financial obligations, and that he entered into the agreement under no duress or undue influence.

[122] Additionally, that Mr. Iliuta chose not to obtain legal advice, while at the same time claiming that he did not understand the agreement also lacks credibility. Mr. Iliuta suggested that he was under pressure and had no time to do so; however, the wedding was more than a week away from the date he received the draft provisions on August 18, 2016, which was itself logically after the parties discussed how to calculate Ms. Li’s pre-cohabitation equity. In the agreement, moreover, Mr. Iliuta acknowledged that he had the opportunity to obtain independent legal advice before signing the agreement and chose not to. Indeed, he “expressly and voluntarily” waived his right to legal counsel.

[123] Mr. Iliuta also submits that there are difficulties with the language of the agreement. First, he states that there is no such creature as a “Prenuptial Agreement” in the Family Law Act. Second, Mr. Iliuta states that Ms. Li’s use of the term “date of divorce” in paragraphs 13 and 14 of the agreement is incongruent with the reality. However, the agreement elsewhere, particularly in paragraphs 1 and 4 under the heading “Property”, references “in the event of the Parties separating, or upon death of a Party”. It is not a leap to equate “date of divorce” with a breakdown of the marital relationship, particularly given the clear intentions of the parties, including Mr. Iliuta’s, that some aspect of Ms. Li’s property ownership would be protected, be it either her equity (downpayment plus precohabitation mortgage payments) or downpayment, upon the demise of their relationship.

[124] In Anderson v. Anderson, 2023 SCC 13, the Supreme Court of Canada found at paragraph 36 that “fairness review of a domestic contract typically looks both to the circumstances surrounding the contract’s execution and to the substance of the agreement, where such review is authorized by legislation.” At paragraph 42, the court stated:

[42] At the same time, nearly all provincial family property regimes let spouses contract out of the scheme by private agreement, so long as their agreements meet certain formal requirements, with the exception of Quebec (see Civil Code of Québec, art. 391; Quebec (Attorney General) v. A, 2013 SCC 5, [2013] 1 S.C.R. 61, at paras. 83-84). As a minimum, most regimes require that an agreement be in writing, signed by both parties, and witnessed to exempt family property from distribution under the statute. Some also include additional requirements, such as disclosure between the parties (see Family Law Act (B.C.), s. 93(3)(a); Family Law Act (N.W.T.), s. 8(4)(a); Family Law Act (Ont.), s. 56(4)(a); Family Law Act (P.E.I.), s. 55(4)(a)) or independent legal advice (see Family Property Act (Alta.), s. 38(2)). These statutory formalities serve to impress upon spouses the significance of their agreement and to encourage and preserve the validity of binding family property settlements (D. A. R. Thompson, “When is a Family Law Contract Not Invalid, Unenforceable, Overridden or Varied?” (2001), 19 C.F.L.Q. 399). If an agreement meets the legislative requirements, it can generally only be set aside upon a finding of significant unfairness or unconscionability (see, e.g., Matrimonial Property Act (N.S.), s. 29; Family Law Act (B.C.), s. 93(5)).

[125] I find that, pursuant to subsection 55(1) of the Family Law Act, the agreement signed by Mr. Iliuta and Ms. Li on August 19, 2016, fulfills the necessary criteria for an enforceable domestic contract. It is in writing, executed by the parties and witnessed.

[126] At paragraph 49 of Anderson, the Supreme Court went on to consider whether the agreement, once deemed valid, merits consideration in the equalization analysis, indicating that “the challenging party must point to evidence that suggests that the agreement was tainted by undue pressure, circumstances of oppression, or exploitation of a power imbalance or other vulnerability, or that a defect in the bargaining process prevented the parties from understanding some essential part of the bargain.” None of those markers are present in the case at bar. Justice Karakatsanis went on to state: “If the judge is satisfied that no such concerns are established, the agreement may be taken to represent the autonomous choice of the parties.”

[127] At paragraph 51, Karakatsanis stated:

[51] Ultimately, however, the weight given to the agreement in an order for the distribution of property depends on how its substance accords with what is fair and equitable in the circumstances, considering the objectives and factors of the legislative scheme.

[128] If find that the agreement that Ms. Li would receive credit for the equity she first acquired and then built up in her own home prior to cohabitation accords with what is fair and equitable in the circumstances, considering the objectives and factors of the Family Law Act, one of which is that the parties will share the value of property accumulated over the life of the marriage, and not before. While this may normally be accomplished via a date of marriage deduction, parties may also contract out of the “normal” scheme. The use of the term “date of divorce”, rather than “date of separation” in paragraphs 13 and 14 of the agreement, moreover, does not, in my view, defeat this fair and equitable result. The intention that the agreement would come into effect at the breakdown of the relationship is apparent, both from its contents, as well as from the testimony of Mr. Iliuta and Ms. Li.

[129] I find that the “Prenuptial Agreement” dated August 19, 2016, is valid, and Ms. Li shall, therefore, be permitted to deduct 39% of the value of the matrimonial home at valuation date.

[130] Ms. Li has also claimed exclusions of two monetary gifts from her parents, with which Mr. Iliuta takes issue. The first was a gift of $4000 cash in July of 2018, commonly referred to in Chinese tradition as a “red pocket” gift to congratulate her for the birth of E. The second was a bank transfer from Ms. Li’s father of $20,100 in March of 2019.

[131] Ms. Li gave birth to E. on August 4, 2018. She indicated that the cash gift from her parents remained in the house for a few weeks as she was not going out. She gave the cash to Mr. Iliuta to deposit and then transfer to her, which he did. On September 4, 2016, Mr. Iliuta made two transfers to Ms. Li’s RBC bank account ending in 1018, one for $1,800 and another for $2000. On September 6, 2016, Mr. Iliuta transferred the remaining $200.[^44] Ms. Li’s position is that this money remained in her account as of the date of separation and should be excluded from her net family property. I cannot, however, find this to be the case. The money was simply placed in Ms. Li’s bank account and “comingled” with the rest of the money in her account. I am being asked to assume that $4000 of the balance of Ms. Li’s bank account on April 12, 2020, continued to be the “red pocket” from her parents gifted three and a half years earlier. Having comingled with the other funds in her regular bank account, this is not a conclusion I can draw. The exclusion claimed by Ms. Li of $4000 on her NFP is, therefore, not permitted.

[132] Similarly, on March 1, 2019, $20,100 was transferred into Ms. Li’s RBC bank account ending in 1018 from “TT 1/Guangchen”.[^45] The difference in this gift from the former, however, is that Ms. Li immediately transferred $7,800 to her RRSP account with RBC, which amount remained in her RRSP account at the date of separation.[^46] This sum from the gift of Ms. Li’s father is traceable, and may be a deducted from her NFP as an exclusion. The remaining $12,300, however, must suffer the same fate as her “red pocket”, given that it similarly was comingled with the other funds in her regular bank account. An exclusion of $7,800, therefore, may be claimed by Ms. Li on her NFP. An exclusion of the remaining $12,300 of the gift from her father is not permitted.

[133] The parties also differed on the FLV of Ms. Li’s pension. Mr. Martel provided a report providing two scenarios to formulate the FLV of Ms. Li’s pension[^47]. In the first, Mr. Martel assumed that Ms. Li continued to accrue pensionable service while on leave without pay and valued her pension at $76,923. Ms. Li owed contribution deficiencies of $8,903 at valuation date. In the second, Mr. Martel assumed that the service period of leave without pay is accrued over time as the contribution deficiencies are being paid, and valued Ms. Li’s pension as $62,212. In both scenarios, Ms. Li’s notional tax rate at disposition was 17.8%. Mr. Iliuta valued Ms. Li’s pension at $76,923 on his NFP, while Ms. Li valued it at $62,212.

[134] In Van Delst v. Hronowsky, 2019 ONSC 2596, I found at paragraph 27:

27. Mr. Hronowsky submits that this case stands for the proposition that the totality of the pension benefits of Ms. Delst accrued over the life of the marriage (or 19 years and 90 days) were hers, whether she had paid for them in full or not at the time of separation. With this submission, I agree. What I believe Barbot stands for is the proposition that once the member has elected to pay for contribution deficiencies (or not elected to opt out), the pensionable service will appear in the member’s account. Ms. Van Delst is entitled to the pension benefits for which she has elected to recompense the government. If she does not pay for them in their totality, Ms. Van Delst will not lose her entitlement to them; they will simply be paid for by other means. If she does not continue with the federal government or dies, they will be collected in some other manner as per s. 7.2(4) and (5) of the PSSA.

[135] Based on my findings in Van Delst, and because Ms. Li is also a member under the Public Service Superannuation Act (PPSA), it stands to reason that Mr. Martel’s first scenario should apply.

[136] The FLV of Ms. Li’s pension is $76,923. The notional tax at disposition is $13, 692. Ms. Li also has a date of separation debt of $8,903.

[137] Finally, although there were some differences in the NFP’s as to the value of Mr. Iliuta’s RRSP at valuation date, it is my understanding that there is agreement that it is $93,900.

Mr. Iliuta’s Spousal Support Claim - Question #7

[138] Mr. Iliuta has made a claim for spousal support payable by Ms. Li.

[139] Ms. Li disputes that Mr. Iliuta has any entitlement to spousal support.

[140] Section 15.2 of the Divorce Act provides that the court may make an order requiring a spouse to pay such lump sum or periodic sums that the court thinks reasonable for the support of the other spouse. In making such an order, the court is to consider (a) the length of time the spouses cohabitated, (b) the functions performed by each spouse during cohabitation; and (c) any order, agreement or arrangement relating to support of either spouse.

[141] Subsection 15.2(6) sets out the objective of a spousal support order as follows:

(a) Recognize any economic advantages or disadvantages to the spouses arising from the marriage of its breakdown;

(b) Apportion between the spouses any financial consequences arising from the care of any child of the marriage;

(c) Relieve any economic hardship of the spouses arising from the breakdown of the marriage; and

(d) In so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

[142] It is well-established law that there are essentially three grounds upon which entitlement for spousal support may be based: compensatory, non-compensatory and contractual[^48].

[143] In her concurring reasons in Moge v. Moge, 1992 SCC 25, [1992] 3 S.C.R. 813, Justice McLachlin found at pages 878 and 879:

The first thing the judge must consider is “economic advantages or disadvantages…arising from the marriage or its breakdown”. This heading brings in many of the considerations which my colleague discusses. It clearly permits the judge to compensate one spouse for sacrifices and contributions made during the marriage and benefits which the other spouse has received

The second factor which the judge must consider is the “apportionment” of the “financial consequences” of the care of the children. This heading also raises compensatory considerations. If a spouse, either before or after separation, has or continues to incur financial disadvantage as a result of caring for a child of the marriage, he or she should be compensated.

The third thing which the judge’s order should do is grant relief from an economic hardship arising from the breakdown of the marriage. The focus here, it seems to me, is not on compensation for what the spouses have contributed to or gained from the marriage. The focus is rather post-marital need; if the breakdown of the marriage has created economic hardship forone of the other, the judge must attempt to grant relief from that hardship.

Finally, the judge’s order must “in so far as practicable” promote the economic self- sufficiency of each former spouse within a reasonable period of time. This subhead raise the question of the degree to which ex-spouses should be expected to become self-sufficient, a contested point on this appeal. Several things about this subhead should be noted. First, unlike the first three factors, this one is stated in qualified language, beginning with the conditional phrase, “in so far as practicable”. Second, economic self-sufficiency is not to be required or assumed; the verb used is “promote”. By this language Parliament recognized that actual self-suficiency, while desirable, may not be possible or “practicable”.

[144] Mr. Iliuta’s entitlement to spousal support is exceeding thin. On the above facts, he has no claim for compensatory support. First the cohabitation was relatively short, September 27, 2015, to April 20, 2020, or less than five years. Second, Mr. Iliuta was employed at an income comparative to Ms. Li until he went on short-term disability at the end of May 2019, so for three years and eight months of a four year and seven-month relationship. Third, Mr. Iliuta’s voluntarily departure from his employment at the end of September 2019 was not at the behest of Ms. Li nor was it required for the care of the child; rather it was something which Mr. Iliuta chose to do based on not wanting to return to his then employer, with whom he did not get along. Fourth, but for a period of approximately eight months, Mr. Iliuta was not disproportionately responsible for the care of E. Finally, Ms. Li supported Mr. Iliuta in any event until August 21, 2021, while living separate and apart in the same house, by exclusively paying for all expenses related to the matrimonial home.

[145] If Mr. Iliuta has any entitlement for spousal support, it is in relation to the third factor referenced by Justice McLachlin above – “any economic hardship arising from the breakdown of the marriage”, where the focus is “on post-marital need”. Ms. Li submits that Mr. Iliuta’s hardship is not the consequence of the breakdown of the marriage; rather it is the consequence of his own actions and decisions, more specifically his voluntary underemployment. With this submission, I agree. The onus for establishing that Mr. Iliuta is entitled to spousal support lies with him. On the facts before me, I am not satisfied that he has met that onus. As I have found above, Mr. Iliuta was voluntarily unemployed to December of 2021, and has been voluntarily underemployed from January of 2022 to date. It is not the breakdown of the marriage which has created his need or hardship; it is the choices he has made since September of 2019. I find that Mr. Iliuta has no entitlement to spousal support, and his claim must fail.

Final Order

[146] For the above noted reasons, there shall be a Final Order as follows:

Pursuant to the Divorce Act

Divorce

1. The parties shall be divorced. A divorce order shall issue as of the date of this Order.

Decision-Making

2. The Respondent shall have sole decision-making authority regarding the child of the marriage, namely E. C. I., born August 4, 2018. Prior to making any major decision for E., the Respondent shall advise the Applicant of the decision to be made, seek his input, and the parties shall attempt to come to a decision together. If the parties cannot come to a decision, then the Respondent shall make the decision.

3. The parties shall continue to communicate via Our Family Wizard and shall limit their communication to matters relating to the welfare and care of E. The parties shall communicate in a neutral, factual and respectful manner. In the case of an emergency involving the child, the parties shall communicate by telephone. The parties shall each bear their own costs of the OFW subscription.

Parenting Time

4. E. shall remain residing primarily with the Respondent. The Applicant shall have parenting time with E. as follows:

a. Week One: i. Tuesday at the release of school/daycare (or 5:00 p.m. if there is no school/daycare) until drop-off Wednesday morning at school/daycare (or 9:00 a.m. if there is no school/daycare). ii. Friday at the release of school/daycare (or 5:00 p.m. if there is no school/daycare) until drop-off Monday morning at school/daycare (or 9:00 a.m. if there is no school/daycare).

b. Week Two: i. Thursday at the release of school/daycare (or 5:00 p.m. if there is no school/daycare) until drop-off Friday morning at school/daycare (or 9:00 a.m. if there is no school/daycare)

5. Where possible, all exchanges shall occur at E.’s school. If E. is not in school at a time where she is to transition into the other party’s care, the exchange shall occur at the Rideau Curling Club at 715 Cooper Street in Ottawa, unless otherwise agreed to by the parents in writing.

6. Each party shall continue to be entitled to two, non-consecutive weeks of uninterrupted parenting time with E. each summer. Unless otherwise agreed, each party shall have one week in July and one week in August. The parties shall advise each other no later than April 30 of their respective choices of weeks. In the event of a conflict, the Respondent shall have her first choice of weeks in even-numbered years and the Applicant shall have his first choice of weeks in odd-numbered years.

Retroactive Child Support and Section 7 contributions

7. The Applicant’s income for child support purposes in 2021 is imputed to $50,000 annually. The Applicant owes the Respondent child support arrears of $1,800 ($450 per month x 4 months) for the period of September 1, 2021, to December 31, 2021.

8. The Applicant’s income for child support purposes in 2022 is $71,794. The Applicant owes the Respondent support arrears of $8,047.44 ($670.62 per month x 12 months) for the period of January 1, 2022, to December 31, 2022.

9. The Applicant’s income for child support purposes in 2023 is imputed to $50,000 annually. The Applicant owes the Respondent child support arrears of $5,400 ($450 per month x 12 months) for the period of January 1, 2023, to December 31, 2023.

10. Total arrears of child support for the period of September 1, 2021, to December 31, 2023, are fixed at $15,247.44. This sum may be deducted from the sum owing to the Applicant by the Respondent for equalization of their net family properties.

11. Total arrears of section 7 special expense contributions payable by the Applicant to the Respondent for the period of April 12, 2020, to December 31, 2023, are fixed at $11,718.03. This sum may be deducted from the sum owing to the Applicant by the Respondent for equalization of their net family properties.

Ongoing Child Support

12. Commencing January 1, 2024, the Applicant shall pay to the Respondent child support for one child based on an imputed annual income of $50,000 or his Line 15000, whichever is higher in accordance with the Federal Child Support Guidelines.

13. Commencing January 1, 2024, the parties shall share in E.’s special and extraordinary expenses in proportion to their incomes, based on the Applicant’s imputed annual income of $50,000 or his Line 15000, whichever is higher, and the Respondent’s Line 15000 income. Neither party shall incur a special or extraordinary expense for which they expect a contribution from the other without the prior written consent of the other, such consent not to be unreasonably withheld.

14. Commencing in 2024 and in each year thereafter, the parties shall exchange their full T1 Income Tax Returns and Notices of Assessment (if available) by no later than May 31st. The parties shall then adjust ongoing child support based on the Applicant’s Line 15000 income from the prior taxation year, or $50,000, whichever is higher, and the Respondent’s Line 15000 income from the prior taxation year. The adjusted child support shall begin on July 1 of each year.

Spousal support

15. The Applicant’s claim for spousal support is dismissed.

Pursuant to the Family Law Act

16. The Applicant’s claim to set aside the parties’ domestic contract is set aside. The parties’ domestic contract (“Prenuptial Agreement”) dated August 19, 2016, is a valid and subsisting agreement.

17. The parties shall recalculate equalization in accordance with my findings by making the following adjustments to their Net Family Property Statements:

a. The Respondent is entitled to deduct 39% of the value of the matrimonial home at valuation date; b. The value of the Applicant’s RRSP at valuation date is $93,900; c. The Family Law Value of the Respondent’s pension at valuation date is $76,923; d. The Respondent is entitled to an exclusion of a gift of $7,800; e. The value of the notional tax on disposition of the Respondent’s pension is $13,692.29; and, f. The Respondent is entitled to a date of valuation debt for contribution deficiencies of $8,903.

[147] If the parties are unable to agree on the resulting equalization payment owed by the Respondent to the Applicant, a further appearance before me may be arranged through the office of the Trial Coordinator.

Costs

[148] If the parties are unable to agree on the liability and quantum of costs for the trial, I will accept written submissions not exceeding three (3) pages (double spaced, 12-point font), in addition to Bill of Costs and Offers to Settle, in accordance with the following timelines:

• The Applicant/Mother to serve and file her submissions by November 25, 2024;
• The Respondent/Father to serve and file his submissions by December 9, 2024;
• The Applicant/Mother to serve and file her reply, if any, by December 16, 2024.

Released: December 6, 2024

APPENDIX

Paragraph [97] previously stated:

[97] Commencing January 1, 2024, Mr. Iliuta shall be required to pay table child support based on either an imputed income of $70,000 or his actual income, whichever is higher. He shall also contribute his proportionate share to section 7 expenses as of that date based on the same and on Ms. Li’s income for 2023. On a go forward basis, neither party shall incur an extraordinary expense for which they expect a contribution from the other without the prior written consent of the other, such consent not to be unreasonably withheld.

Paragraph [97] now reads as follows:

[97] Commencing January 1, 2024, Mr. Iliuta shall be required to pay table child support based on either an imputed income of $50,000 or his actual income, whichever is higher. He shall also contribute his proportionate share to section 7 expenses as of that date based on the same and on Ms. Li’s income for 2023. On a go forward basis, neither party shall incur an extraordinary expense for which they expect a contribution from the other without the prior written consent of the other, such consent not to be unreasonably withheld.

COURT FILE NO.: FC-21-1781

DATE: 2024/12/06

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Serban Iluita Applicant

AND

Xinru Li Respondent

Counsel: Richard Bowles, for the Applicant

Ira Marcovitch as agent for Ian Vallance for the Respondent

AMENDED REASONS FOR DECISION

Engelking J.

Released: December 6, 2024

[^1]: Trial Exhibit #16, OFW exchange March 29-31, 2023 [^2]: Trial Exhibit #45, photographs of empty beer cans and cases of beer at the matrimonial home taken between August of 2020 and September of 2021 [^3]: Trial Exhibit #34, Family Mediation Intake/Screening Form [^4]: Trial Exhibit #9, Letter of Ian Vallance to Serban Iliuta dated April 20, 2020. [^5]: Trial Exhibit #1, Agreed Statement of Facts dated November 8, 2023 [^6]: Trial Exhibit #15, Current CV of Serban Iliuta [^7]: Trial Exhibit #37, CV of Dan Egarhos dated July 2023, and Trial Exhibit #38, Acknowledgement of Expert’s Duty of Dan Egarhos dated November 1, 2023 [^8]: Trial Exhibit #39, Transferable Skills and Labour Market Analysis Report of Dan Egarhos dated April of 2022 [^9]: Trial Exhibit #40, Transferable Skills and Labour Market Analysis Updated Report of Dan Egarhos dated December 6, 2022 [^10]: Trial Exhibit #41, Transferable Skills and Labour Market Analysis Report of Dan Egarhos dated October 17, 2023 [^11]: Trial Exhibit #39, page 8 [^12]: Ibid., page 27 [^13]: Ibid., page 36 [^14]: Ibid., page 47 [^15]: Ibid., page 58 [^16]: Ibid., page 67 [^17]: Trial Exhibit #40, page 4 [^18]: Ibid., page 4 [^19]: Trial Exhibit #41, page 5 [^20]: Ibid., page 8 [^21]: Trial Exhibit #18, document entitled “Serban’s Job searches” [^22]: Trial Exhibit #19, “Serban job search documentary evidence” [^23]: Drygala v. Pauli, 2002 ONCA 41868, paragraph 23 [^24]: Ibid., paragraph 25 [^25]: Ibid., paragraph 28 [^26]: Ibid., paragraph 45 [^27]: McKenzie v. Perestrelo, 2014 BCCA 161, at paragraph 82 [^28]: Trial Exhibit #51, Dalhousie Day Care receipt for January 1 to December 31, 2020 [^29]: Trial Exhibit #48, Dalhousie Day Care receipt for January 1 to December 31, 2021 [^30]: Trial Exhibit #49, Dalhousie Day Care receipt for January 1 to December 31, 2022 [^31]: Trial Exhibit #50, OCDSB receipt for January 1 to December 31, 2022 [^32]: Trial Exhibit # 51, OCDSB receipt for January 1 to October 31, 2023 [^33]: Trial Exhibit #53, Pedalheads receipt for 2023 summer camp [^34]: Trial Exhibit #54, RA receipt for 2023 summer camps [^35]: Trial Exhibit #55, Carleton University 2023 summer camps [^36]: Trial Exhibit #21, Prenuptial Agreement between Xinru Li and Serban Iliuta dated Augst 19, 2016. [^37]: Trial Exhibit # 2, Agreed Statement of Facts dated November 24, 2023 [^38]: Trial Exhibit #1, Agreed Statement of Facts dated November 8, 2023 [^39]: Trial Exhibit #42, Email exchange of December 2, 2015 between Ms. Li and Theresa Saint-Pierre of TD Canada Trust [^40]: Trial Exhibits #43 and 44, email inquiries from Ms. Li to two law firms dated August 10, 2016 [^41]: Trial Exhitbit #28, email from Xinru Li to Serban Iliuta dated August 18, 2016 [^42]: Trial Exhibit #29, email from Xinru Li to Serban Iliuta dated August 18, 2016 [^43]: Trial Exhibit #30, email from Xinru Li to Serban Iliuta dated August 19, 2016 [^44]: Trial Exhibit #68, RBC Account Statement for 1018 from August 15 to September 14, 2018 [^45]: Trial Exhibit #67, RBC Account Statement for 1018 from February 15 to March 15, 2019 [^46]: Trial Exhibit #85, RBC RRSP Statement for Ms. Li dated April 30, 2020 [^47]: Trial Exhibit #69, “Capitalized Value of Accumulated Pension Entitlements During Marriage” Report of Guy Martel dated May 1, 2020 [^48]: Moge v. Moge, 1992 SCC 25, [1992] 3 S.C.R. 813