REASONS FOR DECISION

Overview

[1] This case revolves around a family that immigrated to Canada from Pakistan in 1997. The couple, who were married for 28 years, have five children. Three of the children are currently living independently, while two have special needs, with one being unable to live independently. This was a three-day trial, focusing on the wife's claims for retroactive child support, ongoing child support, spousal support, property division, and the jointly-owned matrimonial home.

[2] Before the trial, the couple had resolved their parenting issues. In June 2024, the husband, Muhammed Ahktar Agha, traveled to Pakistan and has not returned to Canada. He testified via Zoom during the trial, that he had no intention of returning to live in Canada.

[3] At the start of the trial, Zohra Fatima, the wife, filed a motion to strike the husband's pleadings due to his failure to comply with previous court orders. Specifically, he had not submitted a current sworn financial statement or provided necessary disclosure or documents before the trial. He was also in violation of an interim child support order and several cost orders. However, the motion was dismissed, allowing the husband to provide viva voce testimony regarding his finances, as crucial information was missing from the record. The court aimed to gather sufficient evidence to address the wife’s claims, particularly regarding his financial circumstances, even though he had not fully adhered to procedural requirements under the Family Law Rules, O. Reg. 114/99 (“FLRs”) and the Trial Scheduling Endorsement Form,.

[4] The husband also brought a motion at the commencement of trial seeking that a) I be recused as the trial judge; b) the wife’s motion to strike his pleadings be dismissed; and c) the order of Sanfilippo, J., dated November 24, 2022, which had been issued and entered on November 22, 2024 be vacated. I dismissed the husband's motion and provided oral reasons for this decision and, as a result, I did not step down from the case, the wife's motion to strike the husband's pleadings was dismissed, and the order from Justice Sanfilippo remained in place.

Issues to be Determined at Trial

[5] The issues to be decided at this trial are as follows:

a. Whether the husband owes retroactive child support to the wife from the date of separation to February 24, 2022, when Faieta, J. made an interim child support order and if so, in what amount?

b. Whether the husband owes arrears of child support pursuant to the order of Faieta, J., dated February 24, 2022 and if so, in what amount?

c. Whether the husband owes ongoing child support for two children of the marriage and if so, in what amount?

d. Whether the husband owes the wife spousal support retroactively and prospectively?

e. What is the equalization payment owing by the husband to the wife?

f. What are the post-separation adjustments the husband owes to the wife?

g. Whether the husband’s half-interest in the jointly-owned matrimonial home should be transferred to or vested in the name of the wife to satisfy his financial obligations or dealt with in some other manner?

h. Whether a restraining order should be granted against the husband?

[6] I have found that the outstanding claims the wife has against the husband shall be satisfied by him vesting his half-interest in the matrimonial home to the wife, for the reasons set out below.

Brief Background

[7] The parties were married on October 25, 1991 in Karachi, Pakistan in an Islamic religious traditional marriage ceremony. This was a second marriage for the husband and a first marriage for the wife.

[8] The husband is highly educated, with a bachelor’s degree in electrical engineering which he obtained in Pakistan. Before coming to Canada, the husband worked for Pakistan Telecom as an electrical engineer.

[9] The parties have five children of their marriage. In May of 1997, the parties immigrated to Canada, at which time they had three daughters, ages 4, 3 and 8 months old.

[10] The wife testified that during their marriage, she endured multiple forced pregnancies and abortions without her consent. The couple's three oldest children were born in Pakistan, while their two youngest children were born in Canada. The family's decision to immigrate to Canada was largely driven by the need for better medical support for their child, NA, who had developmental delays and was later diagnosed with a genetic condition.

[11] The parties two oldest children have been independent since separation. The child, RA is now independent since she graduated in June 2024. This trial involves the wife’s child support claim for the three younger children. The details about these three children’s circumstances is as follows:

a. The parties’ daughter, NA, is 27 years old and has a genetic condition known as 22q, where a piece is missing from chromosome 22 in every cell of her body. This condition predisposes her to a range of complex medical, developmental, and psychiatric issues, which can be chronic and severe. NA is under the care of the Dalglish Family 22q Clinic at Toronto General Hospital. It is undisputed that NA’s condition requires lifelong support and supervision in her daily life. She is entirely dependent on the care of the wife and is unable to live independently. NA also receives support through the Ontario Disability Support Program (ODSP).

b. The parties’ daughter, RA, was a child of the marriage at the time of separation and was attending full-time post-secondary education. She graduated from university in June 2024. RA has been studying Industrial Engineering full-time at the University of Toronto from September 2019 to June 2024. In 2023, RA’s Notice of Assessment indicates that she earned an income of $32,048, which she received from a co-op placement as part of her program.

c. The parties’ son, AA, is 17 years of age and resides with the wife. AA has had mental health struggles including depression and anxiety which has hindered his academic progress. AA accused the husband of sexually assaulting him. Despite being charged with sexual assault and sexual interference against AA on August 31, 2021, the husband’s criminal charges were dismissed at trial. AA attempted suicide in 2021 and was hospitalized for 14 days. AA identifies as gay and is aware that the husband does not approve of his sexuality.

[12] While in Canada, the husband obtained a post-graduate diploma in wireless communication from Humber College and completed additional professional certifications from Cisco.

[13] It was agreed that during the marriage, the husband was the primary breadwinner while the wife took care of the household and children. The husband had a career in the telecommunications industry, working for several companies over the years, including:

Allstream (1999–2010)
Yak Communications (October 2010 to November 2012)
WSIB (October 2013 to January 2014)
Rogers (June to July 2014)
Maresco Telecom (October 2014 to June 2015)
Primus Canada (March 2015 to October 2016)
Comwave (2022)
Key2 Communications (2023)

[14] The wife testified that their marriage was marked by family violence, which was perpetrated by the husband. Their child, RA, also testified, stating that she witnessed the husband engage in both physical and psychological violence toward the wife during the marriage. Both the wife and RA further testified that the children were exposed to family violence throughout the marriage. In contrast, the husband denied any instances of family violence, instead blaming the wife for alienating the children against him.

[15] The parties jointly-own the matrimonial home, located at 970 Dixon Road, Unit 910. Since the separation, the wife and children resided in the parties’ jointly-owned matrimonial home, pursuant to an interim exclusive possession order.

[16] Between 2006 and 2010, the husband faced significant challenges. He started an importing/exporting business called Impex Canada, which specialized in home and office furniture, but it was unsuccessful. During this period, the husband began showing signs of mental illness, lost his long-standing job at Allstream (where he had worked since 1999), and was on Ontario Works in 2007-2008. Additionally, he faced criminal charges for mischief, was hospitalized under a Form 1 due to hypomanic symptoms, and had his driver's license suspended. Despite these difficulties, the wife remained married to him and attempted to manage these challenging circumstances for herself and their family.

[17] It is agreed that the wife experienced health issues during the marriage. Despite these challenges, in 2009, she began working in several minimum-wage jobs to help with the family’s financial needs. These jobs included positions at Canada’s Wonderland, Tim Hortons, and the YMCA.

[18] According to the wife and their child RA, the husband secretly planted recording devices in the wife’s purse when she started working, as well as in the children's belongings. Both the wife and RA described the husband as being rigid, jealous, and extremely strict in his behavior.

[19] After 28 years of marriage, the parties separated on February 10, 2019, following an incident in which the husband was charged with assaulting the wife. Their child RA testified that she and her siblings witnessed the assault, and she expressed feeling terrified and fearful for her own safety as well as her mother's during the incident.

[20] Since the separation, the wife has solely cared for the children. The children have chosen not to maintain a relationship with the husband. The husband shows no insight into how his own behaviors have affected his relationships with the children. Instead, he blames the wife for the breakdown of his relationship with them.

[21] In September 2022, two years after the separation, the wife was diagnosed with stage 3 breast cancer. She has since undergone chemotherapy, surgery, and radiation and is now in remission. However, she continues to recover from these health issues. In addition, the wife has been diagnosed with adjustment disorder with depressed and anxious mood, for which she remains on medication. She is also experiencing extreme financial stress. Currently, the wife is receiving long-term disability benefits, but these benefits are set to expire this month.

[22] In terms of the litigation history,

a. The wife issued the within Application on February 3, 2021, seeking, among other things, decision-making responsibility, child support, spousal support, property division, a restraining order, and a divorce.

b. The husband filed an Answer on March 2, 2021. The only financial statement the husband has sworn in this proceeding is dated March 5, 2021.

c. On February 24, 2022, Faieta, J. found that NA, RA and AA were children of the marriage and ordered the husband to pay temporary child support for the three children based on his 2020 Line 150 income of $61,339 a year, in the sum of $1,223 a month. The wife was granted temporary exclusive possession of the matrimonial home; the husband was to continue to pay the expenses related to the home, including the mortgage, taxes, home insurance and any necessary repairs, and the husband was ordered to pay costs to the wife of $4,800. Prior to this order, the husband did not pay any child support to the wife since the separation. Two weeks after this order, the husband left his employment (his last day of work was March 10, 2022) and stayed in Pakistan, resulting in an inability to claim EI or seek severance pay. As at the date of the trial, the husband was in arrears of child support under this order and had breached the order by failing to pay the expenses related to the matrimonial home and costs.

d. On April 1, 2022, Lococo, J. held a Settlement Conference and ordered on consent of the parties that the OCL be requested to become involved; and the parties are to share the s.7 expenses for the children on the basis of the husband paying 65% and the wife paying 35%. The OCL declined the referral. As at the date of the trial, the husband had not paid any s.7 expenses for the children in accordance with this consent order.

e. On June 27, 2022, Sanfilippo, J. ordered, on consent, that the wife was granted sole decision-making responsibility for NA; guardianship over NA’s property, including her RDSP account; permission to travel with the children outside Canada without the consent of the husband; and permission to obtain the children’s government issued identification without the husband’s consent. The trial of the matter was fixed to take place on April 10, 2023. The husband was ordered to pay the wife costs of $400. Despite this order, the husband did not provide the authorization to the wife to transfer the RDSP account of NA to the wife.

f. On March 24, 2023, Shore, J. vacated the trial date on consent due to the wife’s cancer diagnosis.

g. On March 7, 2024, the husband brought a motion to change the temporary support order of Faieta, J., dated February 24, 2022. I found that there was no material change in circumstances and dismissed his motion. I also ordered the husband to pay costs to the wife of $700.

h. On July 19, 2024, Horkins, J. ordered, among other things, that if the husband did not approve of Sanfilippo, J.’s consent order dated June 27, 2022, then the order was to be sent to Sanfilippo, J. to be signed and then issued; the husband was to notify the wife by September 30, 2024, whether he was seeking parenting time at trial; whether he intended to challenge the wife’s medical evidence; RA’s evidence in chief for the trial was to be by way of affidavit; an exit pre-trial was set for November 14, 2024, and the trial was to proceed for three days on December 2, 2024. Horkins, J. also ordered the husband to pay costs of $3,995 to the wife, since the husband did not attend the TMC and had not filed any material for the TMC.

[23] It is not disputed that other than $400 the husband paid to the wife towards costs, the outstanding costs orders owing by the husband to the wife total $9,495.00.

Issue One: Whether the husband owes retroactive child support to the wife from the date of separation to February 24, 2022, when Faieta, J. made the interim child support order and if so, in what amount?

[24] Since the parties are married, the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) (“DA”), is the applicable statue under which the child support is being claimed and will be ordered. Any order for child support is to be made in accordance with the Child Support Guidelines, SOR/97-175 (“CSG”): s.15.1(3) of the DA.

[25] The purpose and promise of child support is to protect the financial entitlements due to children by their parents: Michel v. Graydon, 2020 SCC 24, [2020] 2 S.C.R. 763 (S.C.C.), at para. 38.

[26] A parent-child relationship is a fiduciary relationship of presumed dependency and the obligation of both parents to support the child arises at birth; Colucci v Colucci, 2021 SCC 24, 458 D.L.R. (4th) 183, at para. 36.

[27] Child support is the right of the child, not of the parent seeking support on the child’s behalf, and the basic amount of child support under the DA, (as well as the Family Law Act) now depends on the income of the payor and not on a highly discretionary balancing of means and needs; Kerr v. Baranow 2011 SCC 10, [2011] 1 S.C.R. 269 (S.C.C.), at para. 208.

[28] Retroactive awards are a recognized way to enforce such pre-existing, free-standing obligations and to recover monies owed by yet unpaid: Michel v. Graydon, at para. 41.

[29] It is agreed in this case, that the husband did not pay child support for the children of the marriage from the time of separation until Faieta, J. made a temporary child support order on February 24, 2022 (“Faieta interim child support order”).

[30] Retroactive child support is a claim for monies that should have been paid by the husband to the wife in child support. Child support arrears, on the other hand, is a calculation of unpaid child support that has accumulated under an existing support order or agreement.

[31] The parties separated on February 10, 2019. I find that at the time of separation, NA, RA and AA were children of the marriage as defined in the DA and entitled to child support.

NA – Disabled Adult Child

[32] At the time of separation, NA was 23 years old. Despite being over the age of majority, I find that she was still a child of the marriage entitled to child support, as defined under section 2(1) of the DA. This is because NA, due to illness and disability, was unable to withdraw from her parents' care. Although NA receives Ontario Disability Support Payments (“ODSP”), this does not absolve the husband from his child support obligations under the DA. The husband still had the financial ability to supplement the support provided by the state.

[33] The Ontario Disability Support Program Act, 1997, S.O. 1997, c. 25, Sched. B. enshrines the objective of creating a shared responsibility between government and families in meeting the needs of adults with disabilities. The receipt of ODSP benefits does not in and of itself lead to disentitlement to child support: see Senos v. Karcz, 2014 ONCA 459, 120 O.R. (3d) 321; Chittle v. Chittle, 2019 ONSC 1433, [2019] O.J. No. 1382; Morden v. Kelly, 2019 ONSC 4620.

[34] Section 3(2) of the Federal CSG provides for the following:

Unless otherwise provided under these Guidelines, where a child to whom a child support order relates is the age of majority or over, the amount of the child support order is,

(a) the amount determined by applying these Guidelines as if the child were under the age of majority; or

(b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child.

[35] Accordingly, table child support will be ordered for NA unless the court considers it “inappropriate”, in which case the quantum of support shall be determined pursuant to s.3(2)(b).

[36] The party seeking to set aside the presumptive table amount as recommended by the CSG bears the burden of rebutting the presumption that the table amount is inappropriate: see Francis v. Baker, 1999 CanLII 659 (SCC). If the presumption in s.3(2)(a) is rebutted, child support can be set above or below the table amount.

[37] The wife argues that child support for NA should be calculated pursuant to s.3(2)(a) using the CSG tables and the husband should be required to pay full table child support commensurate with his income effective on the date of separation.

[38] The husband argues that NA’s ODSP should be considered. While he did not refer specifically to s.3(2)(b), the husband submits that his child support contributions for NA ought to be reduced or terminated given her ODSP benefits.

[39] The leading Ontario case with respect to the calculation of child support in cases where an adult child with a disability is receiving ODSP payments and living with a parent is Senos v. Karcz, 2014 ONCA 459. This case confirms that s.3(2)(b) of the CSG remains applicable under the new regime.

[40] Courts have held that an adult child’s receipt of ODSP benefits is sufficient to displace the “one-size-fits-most” approach in section 3(2)(a) of the CSG in favour of the “tailor-made” approach in section 3(2)(b). There is a potential for overlap between child support payments (which are intended to assist the residential parent to cover the child’s needs relating to shelter, food and clothing) and ODSP benefits paid to the recipient child which cover similar needs. ODSP support reflects society’s commitment to sharing financial responsibility for adults with disabilities; therefore, it makes little sense to calculate child support on the basis that this responsibility falls only on the parents. Section 3(2)(b) should be applied to achieve an equitable balancing of responsibility between the adult child, his parents and society: see Senos v. Karcz and Morden v. Kelly at para. 55.

[41] The evidence on record confirms that currently, in 2024, NA is in receipt of ODSP of $1,308 a month, made up a monthly payment of $752 for her basic needs and $556 toward her shelter. In 2023, NA’s Notice of Assessment reports line 15000 income of $13,372 derived from ODSP; and in 2022, NA reported income of $11,192 derived from ODSP. There is no evidence that NA was in receipt of ODSP in 2019, 2020 or 2021.

[42] If I find that the table amount of child support under the CSG is not appropriate for NA, s. 3(2)(b) requires me to determine the appropriate amount of child support having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child.

[43] As discussed in Senos v. Karcz, at para 37, the case Francis v. Baker confirms that s.3 of the CSG establishes a presumption in favour of the table amount and the party seeking to deviate from that amount bears the onus of rebutting the presumption. “That party is not obliged to call evidence and may simply choose to question the opposing party's evidence. However, the evidence must, in its entirety, be sufficient to raise a concern that the table amount is inappropriate. There must be "clear and compelling evidence" for departing from the Guidelines amount. The factors to be considered in determining both whether the Guidelines approach is "inappropriate" and the "appropriate" level of support are the conditions, means, needs and other circumstances of the child and the financial ability of both parents to contribute. Only after examining all the circumstances of the case should a court find the table amount to be inappropriate and craft a more suitable support award. To determine "appropriateness", the court must have sufficient evidence. Trial judges have the discretion to determine on a case-by-case basis whether a child expense budget is required and they have the power to order it. When the presumption in s. 3(2)(a) is rebutted, child support can then be set above or below the table amount.” [Emphasis added].

[44] In paragraph 46 of Senos v. Karcz, it is stated:

According to the ODSP directives, child support paid by a parent of an adult disabled child is not automatically considered income to the child so as to reduce the amount of his or her ODSP benefits. A determination must first be made whether the parent gives the support payments directly to the child, or uses the payments for the benefit of the child. An income support directive issued in November 2011 indicates that where the child support payments are not given directly to the child, or used for his or her benefit, the payments will be considered the recipient parent's income and not the child's, and will not impact the child's ODSP entitlement. If the payments are given directly to the child, or used for his or her benefit, the payments are treated as income unless an income exemption applies.

[45] I am persuaded that there may be some overlap between the amounts the husband is obligated to pay for NA's child support and the income support NA receives from ODSP for board and lodging. It is reasonable to conclude that a portion of the child support payments is intended to cover NA's needs, including shelter, food, clothing, and other expenses associated with raising a child. This means that while the husband must provide child support, the support from ODSP may also address some of these basic needs.

[46] The difficulty in this case is that there is insufficient evidence of NA’s condition, means, needs and other circumstances to enable this court to make a fully informed decision. The wife did not focus on this issue. There was no evidence to show how the wife uses the ODSP payments she receives as NA’s trustee, meaning there is no evidence as to how much, if any, was paid to NA for her benefit or how much, if any, was used to reimburse the wife for the room and board she provides for NA. There was also no evidence of NA’s expenses or how she used any portion of the ODSP payments. There was evidence as to NA’s condition and regarding her being entirely dependant financially on the wife. The wife’s budget refers to calcium supplements NA requires. Perhaps most significantly, there was no evidence led of NA’s disability-related needs, nor of the expenses incurred by the wife that are attributable to NA.

[47] Similarly, the husband did not put forward any evidence rebutting the presumption that the table amount under the CSG is inappropriate for NA. Put simply, there is no clear or compelling evidence on the record before me to depart from the Guidelines amount.

[48] For the years from the date of separation until the end of 2021, I find that the table amount of the CSG is appropriate for NA, because I have no evidence on record that she was in receipt of ODSP.

[49] However, starting in 2022, I find that the table amount of child support for NA is inappropriate and under s.3(2)(b) of the CSG, I have ordered a reduced amount of child support for NA, as outlined below.

RA and AA

[50] I also find that until RA graduated in June 2024, she was a “child of the marriage” as defined in the DA even though she was over 18 years of age, she was enrolled in post-secondary education full-time, entitling her to child support.

[51] It is agreed that AA, being 12 years old at the time of separation and still under the age of 18 today, continues to be a child of the marriage as defined in the DA entitled to child support.

The Law on Retroactive Child Support

[52] The parental obligation to pay child support, like the children’s concomitant right to support, exists independently of any statute or court order, D.B.S., at para. 54.

[53] Retroactive awards of child support are not exceptional. It cannot be exception that children are returned the support they were rightly due. D.B.S., at para. 97.

[54] The husband did not provide any reason for failing to pay child support for three years after the separation. During his examination in chief, he testified that he believed he was not required to pay child support for children over the age of 16, especially since the children did not want a relationship with him. However, there is no legal basis for the husband's position, as child support obligations do not automatically cease when children turn 16, particularly when they are still dependent on their parents due to factors such as disability or ongoing education.

[55] D.B.S. set out the four factors the court is to consider in awarding retroactive child support where there is no order or agreement in place for child support. These four factors are meant to balance the child’s interests in a fair standard of support, the payor’s interest in flexibility, and the interest of the child and recipient in certainty and are as follows:

a. Whether the recipient has an understandable reason for the delay in seeking relief in the courts;

b. The payor’s conduct;

c. The children’s circumstances;

d. Whether a retroactive award would result in hardship.

[56] In applying the D.B.S. factors to the facts of this case, I find as follows:

a. The wife did not significantly delay in seeking child support from the husband. Following the separation, criminal charges were laid against the husband for assaulting the wife, and the Children's Aid Society became involved with the family. The wife and children were adjusting to life without the husband. In February 2020, the wife briefly considered reconciliation but was assaulted again by the husband, which led her to realize that there was no possibility of resuming cohabitation. Afterward, she sought therapy for herself and the children and filed the application for child support on February 2, 2021. The wife explained that the delay between the separation and the application was due to the coercive control and family violence she had experienced at the hands of the husband.

b. I find that the husband then engaged in blameworthy conduct. Blameworthy conduct is anything that privileges the payor parent’s own interests over his children’s right to an appropriate amount of support. “Courts should not hesitate to take into account a payor parent’s blameworthy conduct in considering the propriety of a retroactive award;” D.B.S., at para. 106. The blameworthy conduct of the husband includes the following:

Other than filing an Answer and sworn financial statement on time (March 2021), the husband swore one further financial statement on February 20, 2024 but did not provide the wife with proper financial disclosure;
He never voluntarily paid the wife any child support from the date of separation onward. He was ordered to pay child support to the wife by the Faieta interim child support order, 3 years after the parties’ had separated. His evidence was that he did not think he needed to pay child support because the children were not engaged in a relationship with him and, other than AA, had turned 16 years of age. This is not the law;
The husband also testified that he believed his two oldest children, who were earning an income at the time of separation, had an obligation to assist the wife with child support for the younger three children. The husband argued that the parties’ two older children’s incomes should be attributed to the wife. Again, there is no basis in law for this position.;
The husband then did not comply with the Faieta interim child support order. Within weeks of the Faieta interim child support order being made, the husband voluntarily left his employment and went to Pakistan.[^1] The husband was earning about $55,000 at that time in 2022 at Comwave. Having left Canada, he was not eligible for EI because he was out of the country and the husband testified that he never sought severance from his employer. He left Canada to go to Pakistan and never returned, leaving the wife on her own with the children to support them on her own. The husband is in arrears of child support;
The husband refused to sign the authorization to transfer NA’s RDSP to the wife, despite the consent order that he do so;
The husband intentionally misrepresented things to the CRA after the separation, including reporting his status as “married’ until 2020; claiming dependant tax credits for NA until 2023, even though he was the higher income earning spouse; claiming deductions for a home office, leased car payment expenses under the name of his self-employed business for which no corresponding income was reported. All of this was done to reduce his income for income tax purposes.
The husband never paid the wife spousal support, despite the 28-year marriage, the fact that he was the breadwinner for the family, and she took on the role of raising five children and looked after the household, other than some minimum wage positions;
The husband failed to appear or file court materials for several case conferences, including a combined SC/TMC on June 24, 2022, and the TMC held on July 19, 2024;
The husband failed to pay the costs awards against him, other than paying the wife $400; and
The husband failed to produce a copy of his 2023 income tax return or notice of assessment, or any documentation regarding his 2024 income.

c. The children’s circumstances were difficult after the parties’ separated. AA appears to have suffered with mental health issues as a result of what he alleges was sexual assault perpetrated by the husband against him. These charges were dismissed at a criminal trial. RA testified and deposed that she experienced trauma as a result of witnessing family violence by the husband against the mother. It cannot be disputed that the three children needed child support from the husband since the date of separation and did not receive it.

d. The husband testified that he cannot afford to pay retroactive child support if ordered to do so. Yet, he failed to swear an updated financial statement for this trial or put forward any documentary disclosure to verify his claims that he is struggling financially. In Michel, the Supreme Court of Canada held that any hardship claimed by the payor parent must be considered in relation to the hardship experienced by the recipient parent and/or the child. Any potential hardship on the part of the payor parent can be disregarded if there is a finding of blameworthy conduct. Given the wife’s circumstances and those of the children, and in light of the husband’s blameworthy conduct, the application of the D.B.S. factors leans toward retroactive child support being ordered.

[57] For all of the above reasons, I order the husband to pay retroactive child support for the parties’ three children, NA, RA and AA, in the sum of $38,794 based on his reported income for the period March 2019 to and including the end of 2021 (On February 24, 2022, the Faieta interim child support order was made), calculated as follows:

Year	Husband’s income as reported on his ITR	CSG table amount for 3 children	Arrears
2019	$56,333.56	$1,111 a month for 10 months March 1, 2019-Dec. 31, 2019	$11,110.00
2020	$61,399.84	$1,233 a month for 12 months	$14,796.00
2021	$54,664.60	$1,074 a month for 12 months	$12,888.00
Total retroactive child support for 2019-2021			$38,794.00

Issue Two: Whether the husband owes arrears of child support pursuant to the order of Faieta, J., dated February 24, 2022?

[58] On February 24, 2022, Faieta, J. ordered the husband to pay temporary child support based on his 2020 income of $61,399 in the table amount of $1,233 a month (“Faieta interim child support order”) starting March 1, 2022. This order was without prejudice to either party arguing for an adjustment at trial.

[59] At the time the Faieta interim child support order was made, the husband’s 2021 and 2022 income was not known. The only information on the record regarding the husband’s income was his 2020 income of $61,399, which is the level of income on which the Faieta interim child support order was made.

[60] The husband’s reported income for 2021, as shown on his Line 15000, was $54,664.60. However, his reported income for 2022, according to his Notice of Assessment, was only $8,680. The husband testified that he worked at Comwave from January 1, 2022, to March 10, 2022. His Record of Employment indicated he was either dismissed or suspended, and he provided no explanation for this.

[61] The husband also confirmed in cross-examination that he went to Pakistan to assist his ill brother. He had initially believed he would be able to work remotely for Comwave, but the company did not allow this. Instead of returning to Canada to continue supporting the family, he remained unemployed for the rest of 2022. When asked about whether he applied for or asked Comwave for severance, the husband confirmed he did not. Prior to leaving for Pakistan, he had been on track to earn $54,995.20 in 2022, based on his hourly rate of $26.44.

[62] The husband came back to Canada 9 months later, in January 2023, when he had received a job offer from Key 2 Communications. He testified that he stayed in Canada from January 2023 until June 2024, when he returned to Pakistan and has been there since then.

[63] In 2023, the husband earned $46,524.22 based on his T4. He did not provide the wife with a copy of his 2023 Income Tax Return or Notice of Assessment.

[64] In 2024, the husband provided only copies of his pay stubs of $2,000 bi-weekly payments, working 80 hours bi-weekly with Key2 Communications, which would have amounted to an annual income of $52,000 had he not returned to Pakistan in June of 2024.

[65] The wife argues that the husband should be imputed with an income for 2024 at no less than $48,000 a year. She also submits that the husband should be imputed with an income equal to at least what he earned in 2021, namely $54,664.60, for 2022 because the husband voluntarily stopped working to look after his elder brother in Pakistan despite his obligation to pay child support for NA, RA and AA.

Law on Imputation of Income

[66] Section 19(1) of the CSG authorizes the court to impute income to a spouse as it considers appropriate in certain circumstances, which includes at (a) and (f) if

a. the parent or 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 health needs of the parent or spouse.

f. Income may be imputed to a party where the party has failed to provide information when under a legal obligation to do so.

[67] Drygala v. Pauli, 2002 CanLII 21868 (ONCA), remains the leading case on imputing income to a support payor and sets out the test to apply s.19(1)(a) to the facts of a case as follows:

a. Is the spouse intentionally under-employed or unemployed?

b. If so, is the intentional under-employment or unemployment required by virtue of his reasonable educational needs?

c. If the answer to question #2 is negative, what income is appropriately imputed in the circumstances?

[68] There is no bad faith requirement to a payor spouse’s under-employment or unemployment: Drygala, at para. 36.

[69] As set out in paragraph 38 of Drygala,

[38] There is a duty to seek employment in a case where a parent is healthy. As a general rule, a parent cannot avoid child support obligations by a self-induced reduction of income. Thus, once it has been established that a spouse is intentionally unemployed or under-employed, the burden shifts to that spouse to establish what is required by virtue of his or her reasonable educational needs.

[70] The test set out in Drygala v Pauli was recently refined by the Ontario Court of Appeal in Lavie v. Lavie, [2018] O.J. No. 90 (C.A.). There, Rouleau J.A., speaking for the court, set out a very clear black line test for intentional underemployment. It is one in which the subjective reasons for the underemployment, (and by extension, unemployment) are not relevant. He wrote:

26 There is no requirement of bad faith or intention to evade support obligations inherent in intentional underemployment: Drygala v. Pauli, at paras. 24-37. The reasons for underemployment are irrelevant. If a parent is earning less than she or he could be, he or she is intentionally underemployed.

[71] Moreover, there is ample case law confirming that the court may draw an adverse inference against a party where he or she has failed to make financial disclosure as required by either court order or by the Rules: See Bagheri-Sadr v. Yaghoub-Azari, 2011 ONSC 611 at para. 13, and Bardouniotis v. Trypis, 2010 ONSC 4466 at paras. 7 to 9.

[72] Where the underemployment or unemployment is the result of one's own actions (an event over which the payor had some control) or misconduct, the support obligations will not be reduced or cancelled. (Luckey v. Luckey, 1996 CanLII 11217 (ON SC), [1996] O.J. No. 1960, Maurucci v. Maurucci 2001 CarswellOnt 4349, Sherwood v. Sherwood (2006) 2006 CanLII 40795 (ON SC), O.J. No. 4860.)

[73] In the case at bar, the husband was unemployed in 2022 and given that he had 3 children of the marriage entitled to child support, two of whom have special needs, he had an obligation and duty to seek employment.

[74] The husband has not put forward any evidence regarding his education needs or requirement to retrain.

[75] As set out in Drygala at paras. 44-46,

a. Section 19 of the CSG is not an invitation to the court to arbitrarily select an amount as imputed income. There must be a rational basis underlying the selection of any such figure. The amount selected as an exercise of the court's discretion must be grounded in the evidence.

b. 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. See, for example, Hanson, supra, and Cholodniuk v. Sears (2001), 2001 SKQB 97, 14 R.F.L. (5th) 9, 204 Sask. R. 268 (Q.B.). The court in Drygala accepted those factors as appropriate and relevant considerations and would add such matters as the availability of job opportunities, the number of hours that could be worked in light of the parent's overall obligations including educational demands and the hourly rate that the parent could reasonably be expected to obtain.

c. When imputing income, the court must consider the amount that can be earned if a person is working to capacity while pursuing a reasonable educational objective. How is a court to decide that when, typically, there is little information provided on what the parent could earn by way of part-time or summer employment? If the parent does not provide the court with adequate information on the types of jobs available, the hourly rates for such jobs and the number of hours that could be worked, the court can consider the parent's previous earning history and impute an appropriate percentage thereof.

[76] The question is what level of income to impute to the husband. The evidence before the court demonstrates that the husband earned $56,333.56 in 2019; $61,399 in 2020; and $54,664.60 in 2021.

[77] Although the Faieta interim child support order was based on the husband’s 2020 income of $61,399, I find that it is appropriate to impute the husband with an income of $50,000 a year for 2022 onward. It is clear he was able to earn about $50,000 a year or more than this amount in the three years prior to separation. An income of $50,000 a year, corresponds to a table CSG obligation of $977 a month for three children.

[78] In light of my finding above that full table child support for NA under the CSG would be inappropriate given that the evidence on the record is that she was in receipt of ODSP in 2022 and 2023, I have adjusted the child support payable by the husband for NA only.

[79] The record demonstrates that for a period of time, under the Faieta interim child support order, the husband was paying the mortgage for the matrimonial home of $914 a month, and the property taxes of $152 a month, totalling $1,066 a month from the time of separation until he stopped doing so. The wife’s budget shows that she was paying common expenses for the matrimonial home of $803 a month. The monthly housing expenses, therefore, for the family totalled $1,869 before the mortgage was refinanced in 2024. I find that a portion of these housing expenses, at least for NA, overlap with the ODSP payments she receives meant to contribute to her shelter costs.

[80] On an imputed income of $50,000 a year for the husband, the CSG tables dictate that child support for 3 children would be $977 a month; for 2 children, table child support would be $755 a month; and for 1 child, table child support would be $461 a month. I note that the CSG model recognizes that household expenses do not increase proportionately with the number of people. Shared living arrangements reduce per-person costs due to economies of scale. In other words, the cost of raising 3 children is not simply 3 times the cost of raising 1 child. Hence, the support of 1 child on a payor’s income of $50,000 a year is $461 a month and not one-third of the support for 3 children under the tables (i.e. $325.66 a month). Instead, it is higher due to the incremental cost adjustments dictated by the Statistics Canada 40/30 Equivalence Scale.[^2]

[81] Accordingly, I find that the husband shall pay full table child support for 2 children, being RA and AA, for 2022, 2023 and for 6 months in 2024 until RA graduated in June, 2024, which is $755 a month, using an imputed income for the husband of $50,000.

[82] For NA, I find that the husband’s child support payment should be reduced by $316 a month. This reduction is based on an adjustment to the monthly table child support amount for 1 child, which is $461 on an income of $50,000. With the reduction, the new monthly child support the husband is obligated to pay the wife for NA is set to $145, and his adjusted total child support obligation becomes $900 a month – comprising of $755 for RA and AA and $145 for NA – starting from 2022 to the present. This was a decreased from the original table amount under the CSG of $977 a month.

[83] Once RA graduated in June 2024, the husband's table child support obligation for AA, based on his imputed annual income of $50,000, was set at $461 per month. The reduced child support obligation for NA remained at $145 per month. As a result, the husband's combined monthly child support obligation for both NA and AA was $606, instead of the $755 per month calculated under the CSG for 2 children.

[84] After giving the husband credit for what he paid in child support since the Faieta interim child support order was made, as enforced by the Family Responsibility Office (“FRO”), and comparing it with what the husband should have paid in child support as I have determined above, I find that the husband shall pay the wife arrears of child support of $8,280.69 for the period 2022 to the present date is as follows:

Year	Income for the H	CSG table amount for 2 children and adjusted CSG for 1 child	Amount owing under the CSG tables	Amount Paid as per FRO statement of arrears up to Sept 9, 2024 (Exhibit #13)
2022	Imputed at $50,000	$900 a month x 12	$10,800	-$1,115
2023	Imputed at $50,000	$900 a month x 12	$10,800	-$10,795.99
2024	Imputed at $50,000	$900 a month x 6 Jan-June 2 children $606 a month X 6 July-Dec	$5,400 $3,636	-$10,444.32
TOTAL for 2022-2024			$30,636	$22,355.31
Amount owing			($8,280.69)

[85] The Family Responsibility Office (FRO) statement of arrears, marked as Exhibit #13 at trial, was calculated as of September 9, 2024. If a more updated FRO statement exists, reflecting any additional payments made by the husband toward child support arrears, the parties are instructed to determine the amounts paid from September 9, 2024, to the date of the release of this Endorsement. These payments should then be used to further reduce the child support arrears, which I find to be owed by the husband in the amount of $8,280.69.

Issue Three: Whether the husband owes ongoing child support for two children of the marriage and if so, in what quantum?

[86] Using an imputed income for the husband of $50,000 a year, his obligation to pay child support for 2 children, namely, for NA and AA, amounts to $755 a month pursuant to the tables. However, since I have found that the husband’s child support for NA should be reduced by $316 a month, the ongoing amount of child support I find to be appropriate that the husband owes for NA and AA on a prospective basis is $606 a month.

[87] The wife seeks lump sum child support for the husband’s future child support obligations for NA and AA. Given that the husband lives in Pakistan, he has indicated that he has no intention of returning to Canada, and there is no reciprocal support enforcement legislation in Pakistan, the wife seeks lump sum child support.

[88] The Federal CSG authorize the court to make a lump sum child support order at s.11.

[89] Lump sum orders of child support have been made in circumstances where the court has determined that it would be inappropriate to make an order for periodic payments. As set out in Makeeva v. Makeev, 2021 ONCA 232, at para 11; K. v. B., 2022 ONSC 7181, those circumstances include:

a. animosity between the parties;

b. the paying party's inability to make periodic payments;

c. difficulties enforcing orders for maintenance;

d. the risk that the available moneys would be otherwise squandered or dissipated; and

e. where the payor resides in a country that does not have reciprocal enforcement of judgement legislation for child support.

[90] In Khadra v. Kjadra, 2021 ONSC 3599, at para 50, the court held that a lump sum payment can be made where the payor has a history of failing to make support payments or resides in a country that does not have reciprocal enforcement of judgment legislation through which the child support payments can be enforced: Tu v. Tu (2000), 2000 CanLII 22591 (ON SC), 7 R.F.L. (5th) 178 (Ont. Sup. Ct.).

[91] In Mwanri v. Mwanri, 2015 ONCA 843, 2015 CarswellOnt 18511, Cronk J.A. wrote for the Ontario Court of Appeal that both the FLA and the DA “afford family law judges a broad discretion to award periodic or lump sum spousal support, or to make an award comprising both forms of support.”

[92] In this case, the husband never voluntarily paid child support and has not complied with previous child support orders. He is currently unemployed in Pakistan, and the court is persuaded that he may have an inability to make periodic child support payments to the wife. Furthermore, even if the husband were able to pay child support, Pakistan is not a reciprocating jurisdiction under the Interjurisdictional Support Orders Act, 2002, S.O. 2002, c. 13. which would complicate the enforcement of any support orders issued in Canada.

[93] Accordingly, I find it appropriate to exercise my discretion by ordering lump sum prospective child support payment for AA and NA. While the wife did not specify the amount sought, the court considered relevant factors, including the likelihood of AA pursuing post-secondary education, as three of his older siblings (excluding NA) had done. Assuming AA will remain a child of the marriage for the next 4.5 years, which includes a four-year post-secondary degree, I have calculated the husband’s obligation at $7,272 per year for 4.5 years ($606 per month for 54 months), totaling $32,724 for both AA and NA. I so order the husband to pay this amount as a lump sum in satisfaction of his future child support obligations for AA and NA (only until and including June of 2029).

[94] Commencing July 1, 2029 and on the first day of each following month, until further court order or agreement of the parties, the husband shall pay child support for NA pursuant to s.3(2)(b) of the CSG in the sum of $145 a month, using an imputed income of $50,000 for the husband.

Issue four: Whether the husband owes the wife spousal support retroactively and prospectively?

[95] Section 15.2(1) and (3) of the DA sets out the court’s jurisdiction to make either an interim or final order requiring a spouse to pay such spousal support as the court considers reasonable. The general objectives of spousal support are found in s. 15.2(6) of the DA and are to,

a. recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;

b. apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support 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.

[96] According to Bracklow v. Bracklow 1999 CanLII 715 (SCC), [1999] 1 SCR 420 (S.C.C.) entitlement to spousal support must be established prior to determining the quantum and duration of a spousal support order. The three groups of entitlement to spousal support are a) compensatory; b) contractual; and c) non-compensatory; Bracklow, at para. 15.

[97] Section 15.2(4) of the DA outlines the factors that the court must consider in making a spousal support order which are the condition, means, needs and other circumstances of each spouse, including a) the length of time the spouses cohabited; b) the functions performed by each spouse during cohabitation; and c) any order, agreement or arrangement relating to support of either spouse.

[98] In Moge v. Moge, 1992 CanLII 25 (SCC), [1992] 3 S.C.R. 813 (S.C.C.), at para. 48, L’Heureux-Dube J. concisely summarized the overall goal of the spousal support provisions of the DA as being to effect “a fair and equitable distribution of resources to alleviate the economic consequences of marriage or marriage breakdown for both spouses, regardless of gender.”

[99] Formulating an appropriate spousal support award is a highly individual and discretionary exercise that requires the court to carefully balance the numerous support objectives and factors set out in the DA in the context of the particular facts of the case before the court (Racco v. Racco, 2014 ONCA 330(C.A.)).

[100] Given the 28-year duration of the marriage, the roles the wife assumed in managing the household and raising the children, and the husband's expectations of her in these roles, I find that the wife has both a compensatory and needs-based entitlement to spousal support. Additionally, the wife's health, including a cancer diagnosis following the separation, affects her ability to achieve self-sufficiency. The husband did not contest the wife's entitlement to spousal support but argued that he lacks the financial capacity to make such payments.

[101] Once entitlement is determined the Court must determine the quantum of duration of spousal support. The Spousal Support Advisory Guidelines (“SSAGs”) are advisory guidelines which suggest appropriate ranges of spousal support once entitlement has been established.

[102] Duration of spousal support under the SSAGs is “indefinite” when the relationship is over 20 years or long or when the “rule of 65” applies. Indefinite support does not necessarily mean permanent support. It only means that no time limit can be set at the time of the order. The Revised User Guidelines to the SSAGs explain that the SSAGs use the term “indefinite (duration not specified) to cover that indefinite orders are subject to variation and review.

[103] The wife is seeking lump sum spousal support in the sum of $82,068 which she calculates to represent the high-end range of the SSAGs, using an income for the husband of $48,000, plus CPP benefits and OAS payments, totalling $19,575 and other non-taxable income of $1,500. This calculation was made Exhibit #15 at trial, and was based on a total income for the husband of $69,801, an income of $19,644 for the wife, representing her current LTD payments, and child support for three children. The wife argues that the husband’s unconscionable misconduct, perpetrated by his physical, sexual, and psychological abuse toward her, are relevant to the other factors the court should consider in making a spousal support order.

[104] I do not find the wife’s calculations to be correct because, she acknowledges that there are currently only 2 children of the marriage entitled to support and her calculations are for 3 children, and the additional income of $19,575 she attributes to the husband, has not been proven on the record to be accurate or in existence currently.

[105] Further, the wife asks the court to make a finding of family violence as further support for using the high-end range of the SSAGs, relying on A.C. v. K.C., 2023 ONSC 6017, in which Justice Mandhane provided the following general propositions about misconduct in spousal support claims:

a. Pursuant to the DA and FLA, misconduct itself cannot disentitle a spouse to receipt of spousal support;

b. Pursuant to the DA and FLA, misconduct itself cannot entitle a spouse to receipt of spousal support or to support at a higher range or for a longer duration;

c. The emotional and psychological consequences of the misconduct can be considered if they are relevant to the other factors set out in s. 15.2(4) of the DA or s. 33(9) of the FLA; and

d. At least in Ontario, unconscionable misconduct that is an obvious and gross repudiation of the relationship can be considered when determining the amount of support, but only if that conduct is relevant to the economic fallout of the marriage. (A.C. v K.C., at para 111).

[106] I do find that the wife experienced family violence at the hands of the husband and that the children were exposed to family violence. However, even without that finding, I find that the appropriate range of the SSAGs to determine the quantum of spousal support is the high-end of the range, given the strength of the wife’s compensatory claim and given that the level of the husband’s income is such that the SSAGs do not generate spousal support quantum’s until there is only one child entitled to child support, given the priority of child support over spousal support.

[107] In terms of the wife’s request for lump sum future spousal support, s. 15.2(2) of the DA allows the court to make lump sum orders in the context of interim applications for spousal support.

[108] Nothing in either the DA restricts a court's ability to award lump sum spousal support to situations where there is a real risk that periodic payments would not be made or to other limited and very unusual circumstances: Davis v. Crawford, 2011 ONCA 294. In Davis v. Crawford, the court affirmed the trial judge's award of lump sum support where it was apparent from the judge's reasons that she had a real concern that the husband would not pay periodic support and that she felt it necessary to effect a clean break between the parties.

[109] Lump sum spousal support orders are discretionary and case specific, and can be justified by a wide variety of circumstances: Davis v. Crawford, above; Aksman v. Shenderey, 2011 ONCA 816. In Aksman v. Shenderey, there was no basis to interfere with the trial judge's award of lump sum support where his reasons provided an adequate foundation for the order and he weighed the advantages and disadvantages of a lump sum award, including the fact that the husband was chronically late in his support payments.

[110] I find that this is a case where a lump sum spousal support award should be ordered, for the same reasons that I have ordered future lump sum child support. The husband is currently unemployed in Pakistan and I question his ability to make periodic spousal support payments to the wife. Further, given that there is no reciprocal support legislation in Pakistan, it would be impossible for the wife to enforce a spousal support order of this court.

[111] I note that for as long as the husband is obliged to continue to pay child support for AA and NA, there is no ability for him to pay spousal support to the wife. The SSAGs show a $0 amount available for child support given the priority given to child support under section 15.3(1) of the DA. However, once the husband’s child support for AA terminates, and he is only paying child support for NA in the reduced sum of $145 a month, the SSAGs produce a range of spousal support for the wife at $250 a month in the high-end of the range. The lump sum calculation of spousal support on the high-end range of spousal support is $62,127 using the mid-point of the net present value of that lump sum pursuant to the SSAGs.[^3] Accordingly, I order the husband to pay the wife lump sum spousal support of $62,127.

Issue Five: What is the equalization payment owing by the husband to the wife?

[112] Pursuant to s.5(1) of the Family Law Act, R.S.O. 1990, c.F.3 (“FLA”), the spouse with the higher net family property (“NFP”) owes the other spouse one-half of the difference between the two parties’ NFPs, which is referred to as an equalization payment (“EP”).

[113] The wife’s sworn financial statement demonstrates that her NFP is $142,762.96. The husband’s NFP is $167,196.98. Based on these numbers, the wife submits that the husband owes her an EP of $12,217.01. The husband did not put forward any evidence disputing the wife’s calculations of her NFP. I agree with the wife’s analysis and find that the husband owes the wife an EP of $12,217.01.

Post-Separation Adjustments

[114] There are also post-separation adjustments that need to be accounted for since the date of separation.

[115] In July 2019, the mortgage registered on title to the matrimonial home needed to be refinanced to allow the parties to pay off a joint credit card debt owing to the Bank of Montreal. It is agreed that the husband arranged for the refinancing of the mortgage through the Bank of Montreal and retained a lawyer, Abraham Jonas to complete this refinancing. At that time, the mortgage in favour of the Royal Bank of Canada was discharged in the sum of $103,917.33 and a new mortgage in favour of Bank of Montreal was obtained in the sum of $200,000. With the additional financing of $95,082.67, the husband paid off his personal debts, the parties’ joint credit card debt in favour of BMO, and the parties received $31,819.70 which was placed in a joint bank account at BMO. The husband had also secured a line of credit for $60,000, which the wife asked the bank to close after separation so no funds were taken by him. The wife transferred $12,000 into her own personal account.

[116] The wife claims that only the husband obtained the benefit of this refinancing. Specifically, she states that after separation, the husband withdrew $84,546 from the equity of the matrimonial home to his sole benefit. I do not agree that the wife has met the onus of establishing that the husband had the sole benefit of this $84,546. It is agreed that the sum of $31,819.70 was placed into a joint account. She also acknowledges that the funds from the refinancing were used to pay off joint credit card debt. The wife did not produce evidence to verify that this joint credit card was incurred for the husband’s sole benefit. Further, the wife did not identify what amount of debt belonged to the husband alone that was discharged. Accordingly, I do not find that the husband should reimburse the wife for 50% of this refinanced equity of $42,273, as she seeks.

[117] The mortgage in favour of BMO registered on title to the matrimonial home was due for renewal on August 1, 2024. The evidence demonstrates that the husband refused to cooperate with signing the renewal documents and stopped paying for the mortgage. As a result, the wife was forced to renew the mortgage a very high fixed rate of 9.85% for a 6-month fixed term, which increased the mortgage payments significantly. The next mortgage renewal date is February 1, 2025.

[118] The wife claims that the husband owes her post-separation adjustments of $59,557.90, in addition to the EP, representing expenses she paid for solely in connection with the matrimonial home fifty percent of which was his responsibility, as follows:

a. In August 2024, the husband stopped paying the BMO mortgage and the wife paid $3,700.70 toward the mortgage. I find that the husband shall reimburse the wife for 50% of these payments of $1,850.35 up to October 16, 2024;

b. On October 11, 2022, the wife paid the mortgage of $457.78. I find that the husband owes the wife reimbursement for 50% of this payment of $228.89;

c. On July 4, 2022, the wife paid the property taxes of $553.60. I find that the husband owes the wife reimbursement for 50% of this payment of $276.26;

d. The wife paid for repairs associated with the matrimonial home of $4,860. I find that the husband owes the wife reimbursement for 50% of these repairs if $2,430;

d. As stated above, I do not agree that the husband owes the wife reimbursement for 50% of the refinanced equity she claims only he benefitted from in the sum of $42,273.

e. As indicated above, there remains costs outstanding of $9,495 by the husband pursuant to the Faieta child support order; the orders of Sanfilippo, J., dated June 27, 2023, Kraft, J., dated March 8, 2024, and Horkins, J., dated July 19, 2024. I find that the husband owes the wife costs in this sum.

[119] Accordingly, I find that the husband owes the wife the total sum of $4,785.50 on account of post-separation adjustments + $9,495 on account outstanding costs orders, for a total $14,280.50.

[120] The husband argues that he should receive credit for the following payments he made toward the matrimonial home post separation:

a. Property taxes of $2,620.49, calculated as $470.48 in 2022; $1,048.37 in 2023; and $1,101.54 in 2024. I agree that the husband should be given credit for having paid 50% of the property taxes paid by him of $1,310.19 and find that the wife shall reimburse the husband for $1,310.19;

b. Mortgage payments of $32,124.85, being $11,902.20 in 2022; $11,678.50 in 2023; and $8,544.15 in 2024. The wife argues that only $22,926 could have been paid by the husband toward the mortgage since the mortgage in favour of the BMO has been reduced from $200,000 to $172,126, accounting for $27,126 being paid toward the mortgage from the time it was refinanced in July 2019 to now. The wife had provided proof that she paid $4,200 toward the mortgage, leaving a balance of $22,926. The husband has not provided proof of his payments in the form of bank statements or a mortgage statement. Rather, he prepared a chart of mortgage payments he claims to have paid. The wife further argues that the husband should not be given credit for paying the mortgage post-separation because he is benefitting from the increase in value in the matrimonial home since the date of separation. I do not agree. The matrimonial home is jointly owned. To the extent that the husband solely paid the mortgage or property taxes associated with the matrimonial home, he should be given credit for 50% of same and the wife owes the husband reimbursement for 50% of these mortgage expenses, which I calculate to be $11,463, being 50% of $22,926.

[121] Accordingly, I find that the wife owes the husband the total sum of $12,773.19 on account of post-separation adjustments.

Issue Six: What should happen with the jointly owned matrimonial home?

[122] The NFP calculations lists the matrimonial home as jointly owned on each party’s side of the ledger. According to the wife’s evidence the current fair market value of the matrimonial home is $475,000. The mortgage registered on title is $172,000, leaving equity of about $303,000 in the home. Divided by two, the husband’s half share of the equity in the matrimonial home amounts to $151,500. The husband did not put forward any evidence to the contrary regarding the current fair market value of the matrimonial home. Accordingly, I accept the value as put forward by the wife.

[123] The wife submits that if the husband pays her the EP owing to her, along with the post-separation adjustments, retroactive child support, child support arrears, lump sum child support and lump sum spousal support that would add up to more than his half-share of the equity in the matrimonial home. On this basis, she submits that the husband should transfer his 50% of the equity in the matrimonial home to her in satisfaction of these obligations. In essence, she asks the court to grant a vesting order so the husband’s obligations can be satisfied by transferring his half-interest in the home to her.

[124] The power to grant a vesting order, including an order under s.34(1)(c) of the FLA was decided in Lynch v. Segal, 2006 CanLII 42240, which confirms that the court’s broad general power to grant a vesting order is found in s.100 of the Courts of Justice Act, R.S.O. 1990, c. C. 43. In the specific context of family law claims, ss. 9(1)(d)(i) and 34(1)(c) of the FLA confer an equally broad power to grant a vesting order on an application for equalization of net family property or support, respectively. Vesting orders are discretionary and have their origins in the court's equitable jurisdiction.

[125] Before a court will make an order requiring that property be transferred to or vested in the dependant, the onus is on the person seeking a vesting order to show that such an order is necessary to ensure that the payor complies with his payment obligations. There should be some reasonable relationship between the amount of the payor spouse’s support liability and the value of the property to be vested in the recipient spouse. Each case must be decided on its own unique facts, as noted by the Ontario Court of Appeal in Lynch v. Segal, below (at para. 32)

As a vesting order -- in the family law context, at least -- is in the nature of an enforcement order, the court will need to be satisfied (as the trial judge was here) that the previous conduct of the person obliged to pay, and his or her reasonably anticipated future behaviour, indicate that the payment order will not likely be complied with in the absence of more intrusive provisions: see Kennedy v. Sinclair, 2001 CanLII 28208 (ON SC), [2001] O.J. No. 1837, 18 R.F.L. (5th) 91 (S.C.J.), affd 2003 CanLII 57393 (ON CA), [2003] O.J. No. 2678, 42 R.F.L. (5th) 46 (C.A.). Thus, the spouse seeking the vesting order will have already established a payment liability on the part of the other spouse and the amount of that liability, and will need to persuade the court that the vesting order is necessary to ensure compliance with the obligation.

[126] Further, before a vesting order can be made, it must be based on proper calculations: Rasile v. Rasile, 2011 ONSC 2851.

[127] I calculate that the amounts owing by the husband to the wife total $155,652.51 broken down as follows:

Category of Amounts owing by the Husband to the Wife	Calculation of amounts owing by H to W	Less amounts owing by the W to the H
Retroactive child support	$38,794.00
Child support arrears	$8,280.69
Lump sum child support prospectively	$32,727.00
Lump sum spousal support prospectively	$62,127.00
Equalization payment	$12,217.01
Post-Separation Adjustments	$4,785.00	-$12,773.19
Outstanding costs orders	$9,495.00
Subtotals	$168,425.70	-$12,773.19
Total Amount owing by H to W	$155,652.51

[128] Given that the husband’s 50% share in the equity of the matrimonial home is equal to $151,500, I find that in the circumstances of this case, the husband’s half-share in the matrimonial home shall be vested in the name of the wife in satisfaction of all outstanding support and property claims the wife may have against him, including for retroactive child support, child support arrears, future child support, spousal support, equalization of net family property, post-separation adjustments, and outstanding costs orders, including pre-and post-judgment interest.

Issue Seven: Should a Restraining Order be granted to the wife?

[129] Section 46(1) of the FLA provides the court with jurisdiction to make an interim restraining order. While generally restraining orders in family law matters are made against a spouse or former spouse restraining that spouse from having direct or indirect contact with the other spouse, s.46(3) permits the court to make a restraining order that contacts any other provisions that it considers appropriate.

[130] The test for whether a restraining order should be granted under s.46 of the FLA is whether the moving party “has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody.” In Khara v. McManus, 2007 CarswellOnt (C.J.), a trial of an application for a restraining order, Dunn, J. stated at para 33, that

When a court grants a restraining order in an applicant's favour, …it is not necessary for a respondent to have actually committed an act, gesture or words of harassment, to justify a restraining order. It is enough if an applicant has a legitimate fear of such acts being committed. An applicant does not have to have an overwhelming fear that could be understood by almost everyone; the standard for granting an order is not that elevated. However, an applicant's fear of harassment must not be entirely subjective, comprehended only by the applicant. A restraining order cannot be issued to forestall every perceived fear of insult or possible harm, without compelling facts. There can be fears of a personal or subjective nature, but they must be related to a respondent's actions or words. A court must be able to connect or associate a respondent's actions or words with an applicant's fears.

[131] The strength of the evidence in support of the restraining order was considered in Callon v. Callon, [1999] O.J. No. 3108 (Div. Court) which was a motion for leave to appeal an order restraining a party from communicating to third parties about the moving party. The court considered the issue of an interim restraining order under s.46 of the FLA. The panel stated that “purpose of s.46 as it relates to interim orders is to permit both litigants the opportunity to conduct their litigation in as reasoned an atmosphere as may be possible.” In P.F. v. S.F., 2011 ONSC 154, McDermot, J. interpreted Callon to mean, “the reason for a restraining order is to provide the litigants with some element of order in the context of difficult and acrimonious litigation.”

[132] The wife argues that she and the children will continue to be traumatized by contact with the husband, which is the reason she seeks a final restraining order. RA has testified that she remains fearful for her safety and for that of her mother in the presence of the father. RA and the wife testified that AA is extremely fearful of the husband.

[133] A restraining order is necessary where parties are unable to restrain themselves and require the state to tell them how to behave; Lazier v Mackey 2012 ONSC 3812, [2012] O.J. No. 3308. It is, however, serious and should not be ordered unless a clear case has been made out: Ciffolillo v. Niewelglowski, 2007 ONCJ 469. In addition to the criminal consequences of breaches, a restraining order will also likely appear when a criminal record search is conducted. As such, a restraining order could have an impact on a person’s employment, ability to travel and immigration status: F.K. v. M.C., 2017 ONCJ 181.

[134] It is not necessary for the husband to have committed an act, gesture or words of harassment, to justify a restraining order. Rather, it must be established that the applicant has a reasonable fear of such acts being committed: Fuda v. Fuda, 2011 ONSC 154. The applicant’s fear can be subjective, but it must be related to the respondent’s actions or words: Fuda v. Fuda, supra, 2011 ONSC 154; Khara v. McManus, 2007 ONCJ 223, 2007 CarswellOnt 3159 (Ont. C.J.). A person's subjective fear can extend to both the person's physical safety and psychological safety: Azimi v. Mirzaei, 2010 CarswellOnt 4464 (Ont. S.C.J.).

[135] The DA defines family violence in the following terms:

… any conduct by a family member towards another family member that is violent or threatening, that constitutes a pattern of coercive and controlling behaviour, or that causes the other family member to fear for their own safety or for that of another person, and, in the case of a child, includes direct or indirect exposure to such conduct and includes

(a) physical abuse, including forced confinement but excluding the use of reasonable force to protect oneself or another person;

(b) sexual abuse;

(d) harassment, including stalking;

(e) the failure to provide the necessaries of life;

(f) psychological abuse;

(g) financial abuse;

(h) threats to kill or harm an animal or damage property; and

(i) the killing or harming of an animal or the damaging of property.

[136] The negative effects of family violence on children are well known. The perpetrator poses a risk of harm to children even after the separation and even if the perpetrator has not physically assaulted the children: Ganie v. Ganie, (2014) O.J. 6332 (S.C.).

[137] I find as follows:

a. the husband has no insight into his conduct. He did not testify that he sought guidance from any professionals or that he has taken any appropriate steps for a therapeutic reunification with the children. Rather, he blames the wife for the children’s estrangement from him and blames RA for being not respectful toward him and having a bad impression of him.

b. the husband explained that the reason for his estranged relationship with the children is because he was preoccupied with creating means for the family which made him be non-demonstrative with love and affection toward the children and, he was therefore, disadvantaged.

c. the husband testified that when he called the wife a derogative name in front of the children, it was “meant to be a joke”. He did not express remorse for any name calling on his part.

d. The husband has no insight into the reasons for the marriage breakdown. He testified that the marriage did not work because the wife was sick from the beginning when the parties got married and the wife was not taught how to be a good housekeeper. He accepts no responsibility for his physical or psychological abuse toward the wife as contributing to the marriage breakdown.

e. the husband’s breach of the criminal court orders not to have contact with the wife after the February 2019 criminal charge establishes a pattern of coercive and controlling behaviour that caused the wife and children to fear for their safety.

f. the husband’s conduct constitutes family violence.

[138] Based on the above, I find that there are reasonable grounds to fear for the safety of the wife and the children and grant the restraining order as a result.

Husband’s Closing Submissions

[139] The husband did not lead any evidence at trial regarding decision-making responsibility or parenting time with the children since the parenting issues were resolved prior to trial.[^4] However, in his closing submissions, despite having received clear guidance from the court that nothing in his closing submissions could refer to evidence not on the trial record, the husband makes reference to the following issues:

a. The absence of the wife’s “CAS Toronto witnesses” at the trial. At a Trial Management Conference (“TMC”) before Horkins, J. on July 19, 2024, the husband was ordered to notify the wife by no later than September 30, 2024 in writing whether he was seeking parenting time at the trial and specify what parenting order he sought. He did not do so. As a result, no parenting issues were to be part of this trial and the witnesses that originally appeared on the wife’s TSEF were eliminated and not needed. The husband failed to appear at the TMC.

b. The engagement of the Office of the Children’s Lawyer (“OCL”) given that the youngest child is under the age of 18. Again, no parenting issues were before the court at the trial of this matter. Further, the Endorsement of Sanfilippo, J., dated June 27, 2022 confirms that when Lococo, J. requested the involvement of the OCL on April 1, 2022, on consent of the parties, the OCL did not accept the referral. The OCL has no jurisdiction to become involved given that no parenting issues were to be determined.

c. The assignment of a case management judge to this matter. The trial is the final resolution of the outstanding issues between the parties. It is the last step in a court proceeding. Accordingly, there is no jurisdiction to appoint a case management judge after a case is resolved.

d. The scheduling of a short motion in April 2025 to review the mortgage renewal status and progress on OCL recommendations. Again, the trial is the final step in this case. No further steps in the proceeding will be scheduled.

[140] The court mentions the issues raised by the husband in his closing submissions to address the fact that none of the issues raised by him referred to in paragraph 138 above are relevant to the issues decided at trial.

ORDER

[141] This Court makes the following order:

a. Pursuant to s.100 of the Courts of Justice Act and s.34(1)(c) of the Family Law Act, the respondent’s fifty percent interest in the matrimonial home located at 910-360 Dixon Road, Toronto ON M9R 1T2, shall vest in the name of the applicant, to satisfy her claims against the respondent for retroactive child support, child support arrears, prospective child support for AA and NA (only until July 1, 2029), prospective spousal support, division of net family property, post-separation adjustments, and enforcement of outstanding costs orders, calculated as follows:

The respondent owes the applicant retroactive child support in the sum of $38,794 for the period from the date of separation to and including December 31, 2022, pursuant to s.15.1 of the Divorce Act;
The respondent owes the applicant child support arrears in the sum of $8,280.69, for the time period January 1, 2022 to and including December 31, 2024, pursuant to s.15.1 of the Divorce Act;
The respondent owes the applicant prospective child support by way of a lump sum for AA and for NA until July 1, 2029 in the amount of $32,727, pursuant to s.15.1(4) of the Divorce Act;
The respondent shall pay the applicant an equalization payment in the sum of $12,217.01, pursuant to s.5(1) of the Family Law Act;
The respondent shall pay the applicant post-separation adjustments of $4,785;
The applicant shall pay the respondent post-separation adjustments of $12,773.19; and
The respondent shall pay the applicant outstanding costs of $9,495.00, in satisfaction of all prior costs orders of this court.

b. Pursuant to s.100 of the Courts of Justice Act and s.34(1)(c) of the Family Law Act, all of the respondent’s right, title and interest in and to the matrimonial home, municipally known as 910-360 Dixon Road, Toronto ON M9R 1T2, shall vest absolutely in the applicant.

c. The Land Registrar shall be ordered and directed to transfer title to the matrimonial home in the joint names of the applicant and respondent into the sole name of the applicant without the necessity of the respondent’s signature or consent.

d. Upon the registration in the Land Registry Office of an Application for Vesting Order, and attaching a copy of this Vesting Order, the Land Registrar for the Land Registry Office is hereby directed to enter the applicant as the registered owner of the matrimonial home and open the appropriate Property Identifier Number for the matrimonial home in the name of the applicant, subject only to the encumbrances, if any, identified being the mortgage in favour of the BMO.

e. Pursuant to s.3(2)(b) of the Federal Child Support Guidelines, commencing July 1, 2029 and on the first day of each following month until further order or agreement of the parties, the respondent shall pay the applicant child support for NA in the sum of $145 a month.

f. For as long as the respondent is obliged to pay child support for NA, annually each year in July, the respondent father shall provide T4 slip, annual tax return with all notices of assessment and reassessment along with copy of latest pay stubs on or before 1st day of July each year for written confirmation of his income.

g. For as long as child support is to be paid, the payor and recipient, if applicable, must provide updated income disclosure to the other party each year, within 30 days of the anniversary of this order, in accordance with section 24.1 of Child Support Guidelines.

a. Unless the order is withdrawn from the Office of the Director of the Family Support Plan, it shall be enforced by the Director and that amounts owing under the order shall be paid to the Director, who shall pay them to whom they are owed.

b. Where sufficient deductions are not made by support deduction Order, payment may be remitted to the Director, Family Responsibility office, P. O. Box 2204, Station P, Toronto, ON. M5S 3E9.

a. Pursuant to section 6 of the Federal Child Support Guidelines, if either or both of the parties have health insurance plans, under which they have or can obtain family coverage, then they shall maintain such coverage, with the children as beneficiaries under the plan, and shall maximize all benefits available for the children.

b. Pursuant to ss. 34(1)(i) and 34(2) of the Family Law Act, the respondent to designate the applicant as the irrevocable beneficiary in trust for the children of any and all life insurance policies he may acquire and to maintain such policies in good standing, unencumbered, for so long as the respondent is required to provide any and child support to the applicant.

a. Pursuant to s.46(2) of the Family Law Act, the respondent shall be restrained from having direct or indirect contact or communication with the applicant; and from coming within 300 meters of the applicant, her place of residence of work.

b. The requirement for the respondent to execute a Letter of Direction to RBC to transfer the RDSP account at RBC, account #4105 for the benefit of NA, and to authorize the applicant to be named as the account holder, is hereby dispensed with.

c. The Royal Bank of Canada is hereby directed to transfer the account holder’s name for NA’s RDSP account from the respondent to the applicant.

d. The terms of the parenting order of Sanfilippo, J., dated June 27, 2022, issued on November 26, 2024, are in full force and effect granting the applicant final decision-making responsibility and guardianship of NA.

e. The divorce is hereby severed from all corollary relief issues and the applicant shall proceed by filing a Form 36A to obtain a simple divorce.

Costs

f. The parties should try and reach agreement on the costs of this trial. If they are unable to do so, the applicant shall serve and file written costs submissions of no more than 3 pages in writing, not including a Bill of Costs and offers to settle. Within 7 days of receiving the costs submissions, the respondent shall serve and file written responding costs submissions of no more than 3 pages, not including a Bill of Costs and offers to settle. Within 5 days of receiving the respondent’s responding costs submissions, the applicant shall file reply costs submissions, if necessary, of no more than 1 page.

M. Kraft, J.

Released: December 17, 2024

[^1]: His 2022 Record of Employment shows the cause of his unemployment to be “M” – voluntarily withdrew to move to Pakistan; See Exhibit 26. [^2]: Taken from 1.0 INTRODUCTION - FORMULA FOR THE TABLE OF AMOUNTS CONTAINED IN THE FEDERAL CHILD SUPPORT GUIDELINES: A TECHNICAL REPORT. [^3]: See Divorcemate calculation attached. [^4]: The Endorsement of Sanfilippo, J., dated June 27, 2022, clearly states that the parties consent to a final order granting the wife sole decision-making authority for NA and AA; granting the wife guardianship over NA’s property, including her RDSP at RBC; authorizing the wife to travel with the children outside of Canada without the husband’s consent; and authorizing the wife to obtain passports and passport renewals, health cards and birth certificates for the children without the husband’s consent.

Fatima v. Akhtar Agha, 2024 ONSC 7040

Case Summary

REASONS FOR DECISION

Overview

Issues to be Determined at Trial

Brief Background

Issue One: Whether the husband owes retroactive child support to the wife from the date of separation to February 24, 2022, when Faieta, J. made the interim child support order and if so, in what amount?

NA – Disabled Adult Child

RA and AA

The Law on Retroactive Child Support

Issue Two: Whether the husband owes arrears of child support pursuant to the order of Faieta, J., dated February 24, 2022?

Law on Imputation of Income

Issue Three: Whether the husband owes ongoing child support for two children of the marriage and if so, in what quantum?

Issue four: Whether the husband owes the wife spousal support retroactively and prospectively?

Issue Five: What is the equalization payment owing by the husband to the wife?

Post-Separation Adjustments

Issue Six: What should happen with the jointly owned matrimonial home?

Issue Seven: Should a Restraining Order be granted to the wife?

Husband’s Closing Submissions

ORDER

Costs

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Financial Outcomes

Issues

Statutory Provisions 7

Legal Tests 3

Legislation 7