Court File and Parties

Court File No.: FS-22-00031210-0000
Date: 2025-06-12
Court: Ontario Superior Court of Justice

Between:
Nazneen Neesah Lee (Applicant)
and
Mackenzie Vincent Lee (Respondent)

Appearances:
Briar Downey, for the Applicant
Self-represented, for the Respondent

Heard: June 12, 2025
Released: June 12, 2025
Judge: Shanthi Mathen

Introduction

[1] The Applicant mother seeks an order for sole decision-making responsibility, primary parenting, table child support based on imputed income, child support arrears, spousal support, equalization, exclusive possession of the matrimonial home, life insurance, and costs.

Record Before the Court

[2] The record before the court consists of:

a. An Application issued on August 11, 2022;
b. A Form 23C Affidavit for Uncontested Trial sworn November 27, 2024;
c. An Affidavit of Service dated November 29, 2024;
d. A Form 35.1 Parenting Affidavit sworn November 27, 2024;
e. An updated Form 13.1 sworn November 27, 2024;
f. An order by Akazaki J., striking the Respondent’s pleadings and granting the Applicant leave to proceed via uncontested trial.

[3] The following information is taken from the Applicant’s sworn statement, and prior endorsements of this court.

Background and Family History

[4] The parties began cohabiting in 2006, married on August 7, 2009, and separated on January 6, 2021. They have three children born in 2011, 2018, and 2021.

[5] The Applicant alleges that their relationship was marked by coercive control over her. She called the police to the matrimonial home on numerous occasions. In 2020 the Respondent was charged with five counts of assault and one count of uttering a death threat. The Applicant consented to the Respondent entering a peace bond to resolve the charges.

[6] In September 2020, the Respondent was able to return to the matrimonial home. The relationship did not improve. On January 6, 2021, he moved out for the final time.

[7] According to the Applicant, the Respondent has shown signs of mental illness for years. She does not have a medical history. She described troubling incidents where the Respondent exhibited paranoia and beliefs in conspiracy theories. Most seriously, he has involved the children in some of his outbursts, causing them intense distress. I am persuaded that the Respondent has communicated with the parties’ eldest daughter in disturbing ways; and that his behaviour has frightened all of the children.

[8] Throughout, the Applicant deposes, she has tried to support the Respondent. She has attempted to maintain his relationship with the children. Eventually, she sought and obtained an order for supervised parenting because of the Respondent’s erratic behaviour. However, she is open to a number of supervisors including members of the Respondent’s family. She says that, prior to his exhibiting signs of mental illness the Respondent “could care for the children and was a good parent in many ways.”

[9] The Children’s Aid Society expressed concern about the Respondent’s behaviour including in a February 2023 report which noted the Society’s “worries about the father’s mental health stability, and how this might be impacting the children.”

[10] In March 2023, police had to be called to remove the Respondent from the matrimonial home after he entered it and would not leave.

[11] In May 2023, the Applicant was granted an urgent case conference. This was the first of several conferences at which the Respondent failed to appear, although he did eventually file an answer. In August 2023, this court determined that the Respondent was in breach of several court orders to maintain orderly progression of the case and granted the Applicant leave to proceed via an uncontested trial.

[12] The Applicant deposes that the Respondent attended in-patient treatment at Addiction Rehab Toronto in the Fall of 2023.

Analysis

Parenting and Decision-Making

[13] My findings of fact are contained in the following analysis.

[14] I am persuaded that the Applicant should have primary parenting and sole decision-making responsibility on a final basis. The record before the court shows that the Respondent’s behaviour is troubling. I am persuaded on a balance of probabilities that the Respondent has exhibited paranoia and other symptoms of a mental illness. I am not in a position to make a finding regarding the mental illness in more detail. I am, however, persuaded that it is in the children’s best interests that primary parenting rest with the Applicant.

[15] I am further persuaded that it is not in the children’s best interests to institute a parenting schedule with the Respondent. The lack of information about the Respondent’s mental health and treatment plan, if any, makes a schedule unwise and, likely, unworkable. I am persuaded that the Applicant wishes to maintain a strong bond between the children and their father to the greatest extent possible. Accordingly, parenting time shall be at the discretion of the Applicant who shall make decisions in the children’s best interests including their physical and psychological well-being.

[16] It is appropriate for the Applicant to have sole decision-making responsibility. This includes the right to apply for and hold all of the children’s documents, including passports. The consent of the Respondent is dispensed with. The Applicant also may travel anywhere with the children without the need to obtain the Respondent’s consent.

Child Support

[17] The Applicant seeks ongoing table child support based on an imputed income for the Respondent of $48,975.

[18] The Respondent has a Bachelor’s degree and an MBA. Until 2023, he was employed by the Canadian Imperial Bank of Commerce (CIBC).

[19] Over the years, the Respondent’s income was as follows: 2021 $84,237.52; 2022 $34,235.38; and 2023 $44,222.26.

[20] It appears that the Respondent left his position with CIBC in 2024. The Applicant estimates that his 2024 income includes a severance payment in the amount of $48,975.

[21] The Applicant deposes that the Respondent took leaves in 2021, 2022 and 2023. In her view, this means that his income for those years does not reflect his earning capacity.

[22] The Applicant deposes that the Respondent has the potential to earn $90,000 a year. However, to her knowledge, the Respondent is not currently working.

[23] I am persuaded that the Respondent has repeatedly failed to comply with disclosure requests. In response to an email from counsel in November 2023 requesting details of his work, efforts to secure work and relevant medical diagnoses, the Respondent simply emailed the Applicant that he is not working.

[24] Section 19(1)(a) of the Child Support Guidelines, SOR/97-175 allows the court to impute income to a payor in certain circumstances, including if a parent has failed to provide income information when under a legal obligation to do so (s. 19(1)(f)). Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children: Drygala v. Pauli, para 32. However, s. 19 of the Guidelines 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 must be grounded in the evidence: Drygala v. Pauli, para 44.

[25] Section 17(1) of the Guidelines states that 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”.

[26] The Respondent was provided with opportunities to make disclosures about his income, employment search and medical diagnoses. He did not. It is possible that the Respondent’s mental health challenges affected his ability to participate in these proceedings. It is also possible that those challenges are affecting his current earning potential.

[27] Having said that, based on the evidence before the court I am persuaded that it is appropriate to impute some income to the Respondent.

[28] I decline to use the Applicant’s figure of $48,975 which is based on unconfirmed facts about the Respondent’s severance payments. Instead, I will average the Respondent’s income for 2022 and 2023, as those are the years of the last three for which there is proof of income. The Respondent’s average income is $39,228.82 and that is what shall be imputed to him.

[29] Based on the Respondent’s imputed income, table child support for 3 children is $791 per month.

[30] The Applicant asks that the Respondent contribute to 50% of section 7 expenses. This shall be ordered.

[31] The Applicant seeks arrears. She deposed that the Respondent has not paid child support consistently. Subject to one caveat, I accept her chart showing child support arrears of $22,587 (in her affidavit the Applicant mistakenly reported this as $23,587). The caveat is that the Respondent’s income for 2024 should be the amount imputed in these reasons ($39,228.22), instead of the Applicant’s amount of $48,975. That means that the difference in monthly child support owing up to November 2024 is $246 a month. Therefore, the difference in the child support arrears owing is the original amount ($22,587) less the adjusted amount ($246 x 10 months or $2460). Consequently, the Respondent owes child support arrears of $20,127.

[32] The Applicant’s order requests retroactive Table support of $10,391.42 for the period January 2022 – July 2022. The Applicant’s application was issued August 11, 2022. I am persuaded on a balance of probabilities that the Respondent had notice of his child support obligations shortly after the parties separated. I am further persuaded that the Respondent paid $1500 in child support for this period. The Applicant’s request is granted.

[33] The Applicant claims $483.10 for section 7 expenses. This shall be granted.

Spousal Support

[34] The Applicant seeks spousal support on compensatory and non-compensatory grounds.

[35] I am persuaded that the Applicant has established an entitlement to spousal support on both compensatory and non-compensatory grounds.

[36] The Applicant acknowledges that child support has priority over spousal support. She requests that her right to seek spousal support be maintained until such time as it is feasible for her to continue her claim. This shall be granted, subject to the condition that the Applicant demonstrate reasonable efforts to promote her economic self-sufficiency as anticipated under section 15.2(6)(d) of the Divorce Act, RSC 1985, c 3 (2nd Supp).

Equalization

[37] The Applicant claims an equalization payment of $91,786.20.

[38] Having reviewed the Applicant’s net family property statements, sworn statements and attached materials, I am persuaded on a balance of probabilities that her equalization claim is correct. For clarity, I accept the Applicant’s date of marriage deduction and estimate of the Respondent’s pension value.

[39] Therefore, the Respondent shall pay the Applicant $91,786.20.

Insurance

[40] The Applicant requests that the Respondent take out life insurance to secure his child support obligations. This shall be ordered.

[41] The Applicant’s calculations are based on the income ($48,975) she wishes to impute to the Respondent. She requests $162,433 plus an additional $87,567 for section 7 and post-secondary education, or $250,000 in total.

[42] Given that I have imputed less income to the Respondent than the Applicant requested, the insurance calculation is correspondingly reduced. I will therefore order the Respondent to take out life insurance in the amount of $220,000.

Exclusive Possession of the Matrimonial Home

[43] The Applicant requests an order for exclusive possession of the matrimonial home.

[44] Under section 24 of the Family Law Act, RSO 1990, c F.3, the court may make an order that one spouse be given exclusive possession of the matrimonial home.

[45] In making such an order, the court shall consider:

(a) the best interests of the children affected;
(b) any existing orders under Part I (Family Property) and any existing support orders or other enforceable support obligations;
(c) the financial position of both spouses;
(d) any written agreement between the parties;
(e) the availability of other suitable and affordable accommodation; and
(f) any violence committed by a spouse against the other spouse or the children.

FLA, section 24(3).

[46] Factors (b) and (d) are not applicable in this case.

[47] Based on the evidence before the court, I am persuaded on a balance of probabilities that an order for exclusive possession should issue in the Applicant’s favour:

a. It is clearly in the children’s best interests to remain in the home for so long as it belongs to the parties.
b. It is not in the children’s best interests to reside with their father.
c. The Respondent has access to more suitable alternate accommodation than the Applicant. The Respondent has not lived in the home for over four years.
d. The Applicant is on social assistance.
e. There is a history of violence on the Respondent’s part against the Applicant and their children. The Applicant has a justified fear of the Respondent. She requires the security of an order for exclusive possession.

[48] Therefore, an order shall issue to the Applicant for exclusive possession of the matrimonial home.

The Matrimonial Home

[49] The Applicant does not seek an order for sale of the matrimonial home. The home does not have a mortgage and the Applicant is able to reside there within her current means. Both parties retain full rights in the home.

Payment of Monies Owing

[50] Given that the majority of the Respondent’s equity is tied up in the matrimonial home, the Applicant proposes that satisfaction of any equalization payment, retroactive child support and child support arrears be deferred until the home is sold. This shall be ordered.

Order

[51] In conclusion, I make the following order:

a. The Applicant’s claim is granted subject to the adjustments noted in these reasons.
b. The attached order shall issue.
c. A copy of this decision shall be served on the Respondent via email and FedEx.
d. Within 14 days, the Applicant shall submit her costs outline and argument of no more than 3 pages.

Released: June 12, 2025

Shanthi Mathen