Zaharia v. Zaharia, 2025 ONSC 2665

COURT FILE NO.: FC-24-178-0000
DATE: 2025/05/01
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Raul Zaharia, Applicant
AND: Shannon Turner Zaharia, Respondent
BEFORE: Justice M. Fraser
COUNSEL: J. Nevada Fenton, Counsel for the Applicant; Lauren Blanchet, Counsel for the Respondent
HEARD: April 15, 2025

I. Introduction

[1] This motion was brought by the Applicant, Raul Zaharia (the “Applicant”). At the conclusion of argument, I made an Order, on consent of both parties, with respect to the relief claimed as part of this motion that was not contested.

[2] This is my decision with respect to the two issues that remained in contention.

[3] The two issues to be determined are as follows:

(a) Whether income should be imputed to the Respondent, Shannon Turner Zaharia (the “Respondent”) for the purpose of determining a “set off” amount payable as part of an order for temporary child support; and

(b) Whether the proceeds from the sale of a property jointly owned by the parties, being 86 Woodland Crescent, Petawawa, Ontario, should be paid out to the parties upon sale or whether the proceeds should be held in trust pending further order and/or the determination of the remaining issues in this proceeding.

II. Facts

[4] The parties began to live together on December 23, 2009. They married on September 25, 2010. The parties have two children: K. Z. who is currently 10 years old and M. Z. who is currently 7 years old.

[5] The parties separated on or about July 3, 2022.

[6] The Respondent is employed as a Warrant Officer in the Canadian Armed Forces. He was posted to Base Petawawa at the commencement of the marriage.

[7] The parties first lived in a property owned by the Applicant solely, being 2093 Sandstone Crescent, Petawawa, Ontario. That property was sold in 2016. In May 2016 the parties purchased the property located at the municipal address of 86 Woodland Crescent, Petawawa, Ontario (“86 Woodland Crescent”). Title was taken by them in their joint names.

[8] The Applicant was subsequently posted to CFB Trenton. When the parties moved to Trenton, Ontario they purchased a home at 87 Wooler Road, Trenton. The parties then rented 86 Woodland Crescent.

[9] When the parties separated in July 2022, they were still residing in Trenton. However, the Applicant had already received the posting message for him to return to CFB Petawawa. Therefore, to accommodate this posting, both parties moved back to Petawawa, Ontario notwithstanding their separation. At that time, the Applicant moved into 86 Woodland Crescent, while the Respondent moved into military housing on the base. The parties have been parenting their children on a shared, week about schedule since January 2023.

[10] The property at 87 Wooler Road, Trenton has since been sold and the proceeds from that sale were disbursed.

III. Whether Income Should Be Imputed to the Respondent

[11] The Respondent has been contributing toward the ongoing expenses at 86 Woodland Crescent since the parties returned to Petawawa and therefore the issue of child support has not been addressed by them more formally. The parties agree that once 86 Woodland Crescent is sold, the issue of child support needs to be formalized. They agree that the child support payments should be calculated based upon a set off of the amount each party would be required to pay the other pursuant to the Child Support Guidelines, O Reg 391/97, s.3 (the “Guidelines”). However, to that end, the parties dispute what the Respondent’s income should be for the purpose of that calculation.

[12] The Applicant asks that income be imputed to the Respondent. He asserts that the Respondent is underemployed. The Applicant argues that the Respondent is able-bodied and young. He asserts that the Respondent has a university degree, additional certifications and experience working in several different work environments including in education and customer service at a bank. He submits that income ought to be imputed to the Respondent in the amount of $35,000 based upon his assertion that she should be working full time at a minimum wage job.

[13] The Respondent seeks to have child support calculated based on her actual income for 2024. That income was $19,811.

[14] The Respondent has a Bachelor of Arts in Sociology and an Early Learning Assistant certificate.

[15] The Respondent asserts that she has never worked except on a part time basis during the marriage. She has been a caregiver for the children and she supported her husband’s career in the military.

[16] The Respondent also points out that she only holds a certificate as an Early Learning Assistant, which is a certificate obtained following a 3-month program. She does not have a diploma for an ECE or EA, which is a two-year diploma. The Respondent asserts that while she had started the process to become qualified as an Educational Assistant prior to the parties’ separation, their separation interrupted this pursuit.

[17] The Respondent is currently on the list for 'casual' relief as an EA/ECE at St. Francis Assisi Catholic School (where the children attend). However, she can only fill positions as an 'uncertified, casual relief staff member'. This means that she can be called in occasionally and as needed to fill certain positions as an unqualified supply, but only after the board has exhausted their options on the “qualified” list.

[18] The Respondent also continues to work part-time at TD Bank in Petawawa. She briefly worked as a virtual assistant in 2024, but that contract ended.

[19] The Respondent points out that while she does have a general Bachelor of Arts in Sociology, she has never worked directly in that field and that it is a very generalized degree that typically requires further education. It was a 3-year program, not a 4-year program.

[20] The Respondent asserts that she has made concerted ongoing attempts to find employment but that her ability to work is also curtailed by the need for some flexibility given that the children are in her care 50% of time.

Legal Considerations

[21] Section 31 of the Family Law Act (“FLA”) provides that every parent has an obligation to provide support for their unmarried child who is a minor or is enrolled in a full-time program of education, to the extent that the parent is capable of doing so.

[22] The presumptive rule for child support is set out in section 3 of the Guidelines where the amount of child support is the table amount according to the number of children and the income of the payor. It provides as follows:

3. (1) Unless otherwise provided under these guidelines, the amount of an order for the support of a child for children under the age of majority is,

(a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the parent or spouse against whom the order is sought; and

(b) the amount, if any, determined under section 7.

[23] Section 2 of the Guidelines defines income as the annual income determined under sections 15 to 20.

[24] Section 9 is applicable in shared parenting situations as follows:

Shared parenting time

Where each parent or spouse exercises parenting time with respect to a child for not less than 40 per cent of the time over the course of a year, the amount of the order for the support of a child must be determined by taking into account

(a) the amounts set out in the applicable tables for each of the parents or spouses;

(b) the increased costs of shared parenting time arrangements; and

(c) the conditions, means, needs and other circumstances of each parent or spouse and of any child for whom support is sought.

[25] The starting point for how one is to calculate income is set out section 16 of the Guidelines, which states:

Subject to sections 17 to 20, a parent's or spouse's annual income is determined using the sources of income set out under the heading "Total income" in the T1 General form issued by the Canada Revenue Agency and is adjusted in accordance with Schedule III.

[26] Section 17 of the Guidelines sets out:

Pattern of income

17. (1) If the court is of the opinion that the determination of a parent's or spouse's annual income under section 16 would not be the fairest determination of that income, the court may have regard to the parent's or spouse's income over the last three years and 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.

[27] The court's discretion for imputation of income arises from section 19 of the Guidelines, where a non-exhaustive list of circumstances is provided.

[28] Section 19 reads as follows:

19. (1) The court may impute such amount of income to a parent or spouse as it considers appropriate in the circumstances, which circumstances include,

(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 any child or by the reasonable educational or health needs of the parent or spouse;

(b) the parent or spouse is exempt from paying federal or provincial income tax;

(c) the parent or spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada;

(d) it appears that income has been diverted which would affect the level of child support to be determined under these guidelines;

(e) the parent's or spouse's property is not reasonably utilized to generate income;

(f) the parent or spouse has failed to provide income information when under a legal obligation to do so;

(g) the parent or spouse unreasonably deducts expenses from income;

(h) the parent or spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax; and

(i) the parent or spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust. O. Reg. 391/97, s. 19 (1); O. Reg. 446/01, s. 6.

Reasonableness of expenses

(2) For the purpose of clause (1) (g), the reasonableness of an expense deduction is not solely governed by whether the deduction is permitted under the Income Tax Act (Canada). O. Reg. 391/97, s. 19 (2).

[29] The leading case on imputation of income is Drygala v. Pauli, 61 O.R. (3d) 711 (Ont. C.A.) (“Drygala”). At paragraph 23 of Drygala, the Court of Appeal set out a three-part test to determine whether income should be imputed:

1. Is the spouse intentionally under-employed or unemployed?
2. If so, is the intentional under-employment or unemployment required by virtue of his reasonable educational needs?
3. If the answer to question #2 is negative, what income is appropriately imputed in the circumstances?

[30] The Ontario Court of Appeal set out the following principles in Drygala:

a. There is no need to find a specific intent to evade child support obligations before income can be imputed;

b. "Intentionally" means a voluntary act. The parent required to pay is intentionally underemployed 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 earning an income;

c. There is no requirement of bad faith for income to be imputed;

d. A court cannot arbitrarily impute an amount of income. There must be some factual basis in the evidence for the amount imputed. If the parent does not provide evidence on types of jobs available, hourly rates, and available hours of employment, a court may impute a percentage of what the person had been earning;

e. A parent who changed jobs to increase career satisfaction is not intentionally underemployed;

f. The Guidelines depend on full disclosure to determine support. A payor who fails to make full disclosure cannot complain if a court draws an adverse inference against him or her on the basis of the available facts;

g. Section 1 of the Guidelines stipulates that one of its objectives is to establish a fair standard of support for children to ensure that they benefit from the financial means of both parents after separation. Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this legal obligation, a parent must earn what he or she is capable of earning;

h. 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. A spouse is not to be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations;

i. 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 are: age, education, experience, skills, health, availability of job opportunities, the number of hours that could be worked in light of the parent's overall obligations, and the hourly rate one could reasonably be expected to obtain;

j. The purpose of child support is to assist the custodial parent in meeting the day-to-day expenses of raising children. A party seeking retroactive child support must provide evidence that the child suffered from a lack of financial support during the period in question. Ability to pay, as well as need, must be considered by the trial judge in the exercise of his or her discretion; and

k. The court has the discretion to award retroactive child support that is fit and just in the circumstances.

[31] As indicated, the burden initially rests on the party seeking the imputation of income to demonstrate that the other party is intentionally under-employed or unemployed. The person requesting an imputation of income must establish an evidentiary basis upon which this finding can be made. If the court is not satisfied that the party is intentionally under-employed or unemployed, the analysis ends.

[32] If the party seeking the imputation of income is able to meet the burden, that burden then shifts to the other party to demonstrate that the intentional under-employment or unemployment is required based on their needs.

[33] The second step of the Drygala test is generally treated as an overall test of reasonableness: Pey v. Pey, 2016 ONSC 1909 (Ont. S.C.J.). Once a party seeking the imputation of income presents the evidentiary basis suggesting a prima facie case, the onus shifts to the individual seeking to defend the income position he is taking: Lo v. Lo, 2011 ONSC 7663, 15 R.F.L. (7th) 344 (Ont. S.C.J.); Charron v. Carrière, 2016 ONSC 4719.

[34] The Court must have a rational and solid evidentiary basis to justify an imputation. The onus is on the person requesting an imputation of income to establish this evidentiary basis: Homsi v. Zaya, 2009 ONCA 322, 65 R.F.L. (6th) 17 (Ont. C.A.); Charron v. Carrière, supra; Sullivan v. Sullivan, 2014 ONSC 930 (Ont. S.C.J.).

[35] There is a duty on the part of the payor to actively seek out reasonable employment opportunities that will maximize their income potential so as to meet the needs of their children: L. (N.) v. P. (B.), [2000] O.J. No. 2574, 2000 CarswellOnt 2487 (Ont. S.C.J.).

[36] The determination to impute income is discretionary, as the court considers appropriate in the circumstances. Therefore, the court may decide not to impute income where the payor establishes the reasonableness of his or her decision or his or her situation: Cole v. Freiwald, 2011 ONCJ 395 (Ont. C.J.).

[37] Regardless of the basis upon which income is imputed, the amount of income that the court imputes to a party is a matter of discretion. The only limitation on the discretion of the court in this regard is that there must be some basis in the evidence for the amount that the court has chosen to impute: Thompson v. Thompson, 2013 ONSC 5500, [2013] CarswellOnt 12392 (Ont. S.C.J.); Korwin v. Potworowski, 2007 CarswellOnt 6852 (Ont. C.A.).

[38] In a number of cases, courts have concluded that it is more appropriate to leave the issue of imputing income to the trial judge, rather than consider same at an interim motion: Lamb v. Watt, 2017 ONSC 5838 (Ont. S.C.J.).

[39] In motions for interim relief, the scope of inquiry for the court is limited. On a motion for interim support, it is not for the court to engage in a comprehensive review and analysis of issues that are better left to trial. The purpose of interim relief is to provide the parties with reasonable arrangements to meet the means and needs of the parties until trial: Spence v. Sly, 2010 ONSC 6060, [2010] O.J. No. 4721 (Ont. S.C.J.); Driscoll v. Driscoll, [2009] O.J. No. 5056, [2010] W.D.F.L. 1324.

Analysis

[40] In this instance it is clear that there are a myriad of factors that seem to be influencing the Respondent’s present employment status.

[41] Firstly, the Respondent has historically worked on a part-time basis during the marriage.

[42] Secondly, since the parties’ separation, she is single parenting the children every second week. The children are still relatively young.

[43] Thirdly, the Respondent has uprooted and moved for the convenience and promotion of the Applicant’s career on a number of occasions during the marriage and most recently following the parties’ separation. These moves would have imposed complex challenges to the Respondent’s ability to re-enter the workforce each time the family relocated to accommodate the Applicant’s career. The moves deprived the Respondent of the continuity of community which can normally support a person’s career advancement.

[44] Fourthly, the Respondent’s desired career path and her ability to improve her qualifications was interrupted as a result of the separation.

[45] Fifthly, while the Respondent has, once again, restarted her pursuit of employment as an EA/ECE, it appears, given she is not fully qualified, that this is limiting the opportunities/hours which otherwise would be available to her. Notwithstanding this, this career choice may, over the long term, prove to be significantly more beneficial than any immediate benefit which could be gained by the Respondent instead accepting a fulltime minimum wage position which offers no career advancement.

[46] These factors combine to counter the argument that the Respondent is intentionally underemployed.

[47] I am not sure that these factors, combined, will be sufficient to counter the Respondent’s obligation to take active steps to support the children, especially now that they are getting older and time has passed to allow the Respondent to settle in Petawawa. However, I am equally not satisfied that the Applicant has met the onus required for me to conclude at this interim stage that an income should be imputed to the Respondent.

[48] I am not prepared to conclude, on the evidence before me, that the Respondent is intentionally underemployed given the positive efforts which I do see have been made by her. In my view, there is evidence to suggest that the Respondent’s career path has been disadvantaged during the marriage due to the imperative that the family uproot to support the Applicant’s military career. She appears to be cognizant of her obligation to provide for the support of the children and has taken steps to find employment. The employment choices the Respondent has made may very well be more beneficial over the long term to her ability to contribute to the support of the children and to her own support than what could be gained by accepting instead another employment option which offers full time wages but no upward potential for advancement. Those are issues that should more appropriately be determined with the benefit of a full evidentiary record at trial. It is premature, in my view, to conclude that a higher income should be imputed to her at this time.

[49] For the purpose of this interim motion, therefore, I am not prepared to find that income should be imputed to the Respondent.

IV. Whether the Proceeds of Sale Should Be Held in Trust

[50] The Respondent consents to the sale of 86 Woodland Crescent. However, she seeks an order that the net proceeds from the sale be held in trust pending further order. She opposes any disbursement of funds from trust on the basis that she maintains she will be owed an equalization from the Applicant and these funds need to be preserved to pay the amount owing.

[51] The Respondent argues that given their income disparity and their respective financial positions, it would be just and reasonable that she receive the equalization payment that will be owed to her in cash in order to ensure some security to the children who are in her care 50% of the time.

Legal Considerations

[52] Section 12 of the Family Law Act provides:

12. Orders for preservation

In an application under section 7 or 10, if the court considers it necessary for the protection of the other spouse's interests under this Part, the court may make an interim or final order,

(a) restraining the depletion of a spouse's property; and

(b) for the possession, delivering up, safekeeping and preservation of the property.

[53] Also, section 40 of the Family Law Act provides:

40. Restraining orders

The court may, on application, make an interim or final order restraining the depletion of a spouse's property that would impair or defeat a claim under this Part.

[54] The purpose of a section 12 preservation order is to ensure that if an equalization payment is found to be owing there are sufficient assets available to satisfy that payment: Lasch v. Lasch, 64 O.R. (2d) 464 (Ont. H.C.).

[55] A party seeking a preservation or restraining (non-dissipation) order is in a stronger position if equalization has been determined and ordered. However, interim preservation and restraining (non-dissipation) orders are commonly made in family law matters to protect an equalization payment claimed: LeVan v. LeVan, [2006] O.J. No. 4599, 32 R.F.L. (6th) 359 (Ont. S.C.J.).

[56] Although such an order must be necessary to protect a party's claim to an equalization payment and to prevent the claim from being defeated, the very high legal threshold required for the granting of a Mareva injunction is not the applicable standard: Radosavljevic v. Radosavljevic, 57 O.R. (2d) 51 (Ont. H.C.).

[57] In Taus v. Harry, 2016 ONSC 219 at para. 47, the court drew a distinction between cases where there are assets available to satisfy an equalization payment so that no preservation order was appropriate versus a situation where the only assets of value were the matrimonial home and the pension from employment.

Analysis

[58] In the case at bar, the determination of the equalization payment and to whom it is owed remains outstanding. A case conference was held in December 2024. The parties have not yet attended a settlement conference.

[59] Based upon the parties’ sworn financial statements, it is clear that there are only two significant assets owned by either of the parties at the moment: the equity in property they have now agreed to list for sale, being 86 Woodland Crescent and the Applicant’s pension asset.

[60] A Comparison of Net Family Property Statements was submitted by the Respondent. The Respondent’s calculation estimates that she will be owed an equalization payment from the Applicant in the amount of $96,196.95. The Applicant’s calculation suggests an equalization in the amount of $34,267.40 is owed to the Respondent. The evidence, for the purpose of this motion, is insufficient to determine which party’s calculation is to be preferred.

[61] The Applicant maintains that a pension division can be made to satisfy any obligation he may owe to the Respondent by way of an equalization payment. He fully acknowledges that if the Respondent’s calculation is correct, he would not have any other means to satisfy the equalization should the proceeds be distributed equally between the parties at this time. However, he asserts that this would be the fair result in the circumstances as it permits both of the parties to have access to funds to purchase alternate accommodations.

[62] While the Applicant’s position may ultimately succeed on this issue, this is not the Applicant’s option to impose on the Respondent. Given the nature of the Family Law Act as a debtor-creditor statute, a party to whom an equalization is due is presumptively entitled to an equalization payment in cash as opposed to an interest in an asset, such as a pension which will not be realized in cash for a number of years: Gray v. Gray, [1990] O.J. No. 2518, 31 R.F.L. (3d) 97 (Ont. Gen. Div.).

[63] In this instance, based upon his sworn financial statements filed to date, it seems clear that the Applicant does not have other assets available to satisfy any equalization that might be owed.

[64] While I would encourage the parties to continue to negotiate the feasibility of releasing all or a portion of any net proceeds from the sale of the 86 Woodland Crescent, I consider it premature to order that any portion or all of the net proceeds of sale be released to the parties at the present time, absent agreement between them.

[65] While I do not reject the possibility that any equalization payment owing to the Respondent might be ordered payable by way of a division of the Applicant’s pension, I consider it premature, based on what evidence has been made available, to conclude that a pension division is the appropriate disposition. I am declining to make an order at this time which would make that the inevitable result.

[66] I encourage the parties to schedule a settlement conference, which can be scheduled on an expedited basis through the trial coordinator, once the sale of 86 Woodland Crescent has occurred. Pending that, I conclude that the net proceeds from the sale should remain in trust at this time.

V. Disposition

[67] The following temporary orders shall issue:

1. For the purpose of determining the child support payable on an interim basis in this matter, the Respondent’s 2024 income of $19,811 shall be used.

2. The net proceeds from the sale of 86 Woodland Crescent shall be held in trust pending further order or agreement by the parties.

3. The parties shall remit to me a draft order which incorporates my ruling with respect to these issues with the terms consented to by the parties for this motion.

[68] With respect to the issue of costs, I conclude that the Respondent was successful on the issues which were argued. However, it appears that the Applicant was nonetheless required to bring this motion and it appears that the Respondent only consented to the remaining terms on the date this motion was heard. This would suggest that the success of this motion was divided.

[69] If the parties are unable to agree on the issue of costs for this motion, the Respondent may serve and file her submissions concerning costs on or before May 12, 2025. The Applicant may serve and file his submissions concerning costs on or before March 19, 2025. Cost submissions shall be no more than three pages in length, plus any offers to settle and bills of costs.

Justice M. Fraser
Date: May 1, 2025