Reasons for Judgment
Court File No.: FC-23-241
Date: 2025/06/19
Ontario Superior Court of Justice
Between:
Juana Gonzalez (Applicant)
and
Cesar Astorga Bello (Respondent)
Applicant Counsel: Erika Sohail
Respondent: Self-Represented
Heard: June 16–19, 2025
Judge: Breithaupt Smith
Introduction
This Application was addressed by way of a four-day trial, at which only the parties testified. These are my reasons for judgment, which are intentionally concise. I refer to the Applicant as “Mother” and the Respondent as “Father.” Although the parties have four children, only one of whom qualified for support at the date of separation: their now 16-year-old daughter, who I refer to as “Liz.”
Issues
The issues, which were narrowed at the outset of trial, are:
- An Order restraining Father from communicating with Mother directly or indirectly and prohibiting him from attending within 500 metres of her residence or any location where she is known to be.
- Imputation of income to Father, if any, including Father’s intentional underemployment due to medical issues, as it impacts income and spousal support.
- Child support payable by Father to Mother, if any.
- Spousal support payable by Mother to Father, if any.
- Division of s. 7 expenses for the child, Liz.
Parties’ Positions
Mother seeks the restraining order; to impute a minimum-wage income to Father; and child support. As the evidence unfolded, it became apparent that there are no current special and extraordinary expenses for Liz. Note that Mother’s residence address has not been disclosed to Father.
Father disputes the need for a restraining order; he states that he has no income and thus cannot pay child support. He seeks spousal support from Mother.
Undisputed Facts
The following facts are undisputed:
- The parties were married on March 19, 1991.
- They have four children, only one of whom was a minor at the date of separation. That child, Liz Antonia Astorga-Gonzalez, was born November 4, 2008 and is now sixteen years of age.
- Father admitted to perpetuating physical violence against Mother in Chile, with the most recent admitted incident being in 2005. He admitted to smashing plates on the date of separation in response to his perception that Mother had insulted him.
- The parties are from Chile. They are both currently in their mid-fifties. They arrived in Canada on June 19, 2021 after a family decision to leave Chile for better educational opportunities. They arrived as an extended family: the parties; their four children; their eldest son’s wife and two children (the parties’ grandchildren).
- Mother came to Canada on a work permit and started working in agriculture (meat processing) and cleaning. Father and the children arrived on student visas. The parties’ daughter-in-law also secured a work permit. At this time, Father is here pursuant to a visitor’s visa that expires on January 7, 2026.
- Initially, the extended family rented a house together. At some point, the parties’ eldest son and his family moved into their own accommodations.
- The parties separated on Sunday, October 16, 2022.
- At the time of separation, Mother was working at Conestoga Meat Packers. She started there earning $18.00 hourly, which increased to $22.23 hourly by 2023. She no longer works at that employer; she is now working for a cleaning company that services the University of Waterloo. She earns $17.25 hourly and works full time, but this position started only recently.
- Mother’s incomes for the years 2022 through 2024 were:
- 2022: $37,125
- 2023: $36,362
- 2024: $18,048
- For the first months of 2025, Mother received Ontario Works benefits. Based on the evidence provided, I conclude that her income from all sources to mid-June of 2025 is $9,730, which extrapolates to an estimated 2025 income of $20,238.40.
- Two of the parties’ adult children reside with Mother and, combined, they provide her with approximately $950 monthly to assist with household expenses.
- Father had a heart attack in Chile on October 19, 2016. A stent was inserted, and he was hospitalized for approximately one month and prescribed medication to which he had an adverse reaction. He was unable to work for three or four months, and the family relied on savings; thereafter he returned to work in the family’s business repairing chairs and office furniture.
- Father’s primary business involved cold-calling prospective clients, collecting and repairing office chairs, and all attendant product sourcing and transporting of items. The entire family was involved in the repairs. Father had a secondary business where he sub-leased the use of three swimming pools to schools and other groups. He also had a rental house. After his heart attack, Father sold the rental house and used the funds to purchase the swimming pool property outright.
- Father has never worked formally in Canada. Since separation, he has relied primarily on funds provided to him by three acquaintances together with food hampers and other resources from a local church congregation. He was studying English at Conestoga College at separation, but his current immigration status prohibits him from engaging in full-time post-secondary education.
- The parties last had direct contact with one another by WhatsApp messages on October 18, 2022 after Mother had left the home, when Father asked Mother to return to the marriage and she declined.
- Liz has lived exclusively with Mother since the date of separation.
- Father admitted to accessing Mother’s private conversations via access to her social media accounts and to contacting both Chilean authorities and the administration of the shelter to which she had fled. His intention was to report his assessment of her various wrongdoings.
- Father admitted to waiting in the parking area where Mother was residing so as to speak with her post-separation after she stopped responding to his messages.
Evidence and Credibility
Nine exhibits were entered; only the parties testified. As both needed interpreters, an assessment of credibility is difficult. Nonetheless, my assessment of each is as follows:
Mother’s evidence was clear and consistent. She was able to provide details of many of the alleged violent episodes and confirmed that there was no direct physical violence after the parties came to Canada. She conceded her own involvement in verbal arguments in Canada and was credible in explaining that Father controlled these arguments by throwing or smashing belongings which would compel her to be silent. Particularly considering the language barrier, she was attentive and sincere in walking the Court through the explanation of documentary evidence filed. I find her to be highly credible.
Father was remarkably candid with the Court. From his perspective, he is the victim. He admitted to smashing plates on the floor in response to his perception that Mother had insulted him on the date of separation. Father’s lack of insight into his behaviours – it was clear throughout his testimony that he believed Mother’s own actions to be responsible for his emotional responses – supported his credibility on these points. Effectively, this lack of insight, combined with his straightforward presentation, amounted to an admission of family violence and coercive control that continued throughout the marriage to the date of separation. I accept his evidence, except where it differs from the evidence provided by Mother.
Findings of Fact
Based on the parties’ evidence and the exhibits tendered, I make the following findings of fact:
- Family violence took place throughout the relationship. When the parties were in Chile, it was physical and extreme, including beatings, choking and an occasion when Father held a small pair of scissors to Mother’s throat. Mother received no support from Chilean authorities. For a variety of reasons there were repeated separations and reconciliations in Chile.
- After the birth of the parties’ youngest daughter, the physical violence reduced but Father’s method shifted to throwing and breaking household objects, including furnishings such as a microwave, to terrorize the family. Father had complete financial control over Mother and the family. This family violence included a pattern of post-abuse representations by Father that he would change, together with threats if Mother would not resume the relationship.
- Once the family arrived in Canada, the abuse took the primary form of coercive control in a variety of manifestations.
- On the date of separation, Sunday, October 16, 2022, Mother and the parties’ elder daughter went to a cleaning job and returned home at about 3:00 p.m. An argument ensued over the lack of food prepared for the family which escalated such that Father became enraged and started smashing plates on the floor. He continued by breaking the contents first of the kitchen and then of the dining room. The parties’ elder daughter called their eldest son, who came and took Mother and Liz to his family’s apartment.
- Despite attempts by Father to convince her to return to the marriage, Mother decided, with the support of her adult children and local service providers, that this separation would be final.
- Following separation, the parties communicated briefly until Mother met with police on Tuesday, October 18, 2022. Thereafter, Father continued to message Mother for roughly one month, and then all direct communication between the parties ceased.
- Following separation, Father attempted to communicate with Mother in the parking garage of the apartment building where the family lived; this was quite frightening for Mother. Mother described Father as looking angrily at her, and that she felt “very scared” when she got into a work colleague’s vehicle and fled. It is uncontested that Father pulled his vehicle up beside the one in which Mother was a passenger when they came to a stop light. Mother attests that Father was visibly angry with her and that this affected her greatly. Father denies this. I believe Mother.
- Several months later, Father attended at the Tim Horton’s restaurant where Mother was sitting with the parties’ two daughters. The restaurant is located close to the eldest son’s residence, but not near Mother’s residence. His intentions there are unclear; he says that he went to that location, despite living several kilometers away, because it “had good memories” for his family. Mother’s evidence was that he sat behind their group until he was noticed, and then she and her daughters fled. Father did not approach Mother or follow her. I find that Father attended at the Tim Horton’s in the hopes of having some opportunity to communicate with Mother.
- Father was aware of Mother’s residence location due to an error in disclosure made in Mother’s pleadings; there is no evidence that he ever attended there or in the vicinity of that location.
- Father used social media, particularly Instagram, as an outlet for self-expression, but I do not find that he did so for the specific purpose of communicating with or harassing Mother. Mother chose to access Father’s accounts roughly once weekly; sometimes other family or friends would forward Father’s posts to her. She attested that she did so in order to determine whether or not Father remained in Canada.
- Father’s student visa expired in October of 2022 and he has made no meaningful efforts to become gainfully employed, nor has he moved forward in any educational path. He is currently in Canada on a visitor’s visa that expires on January 7, 2026.
- Since separation, Father has received charitable donations and gifts of cash which have allowed him to meet his basic costs of living in Canada.
- There are no current special and extraordinary expenses for Liz.
Specific Questions Raised
This matter raises the following specific questions:
- Should a Final Restraining Order issue?
- What is Father’s income for the years 2022, 2023 and 2024, and going forward?
- Is spousal support payable by Mother to Father post-separation?
- What amount of child support, if any, is payable by Father for Liz retroactive to October 16, 2022?
- How are costs of this trial to be addressed?
Summary of Conclusions Reached
For the reasons below, I have reached the following conclusions:
- A Restraining Order on the terms sought by Mother is appropriate.
- Father is unable to earn any income in Canada but receives regular gifts such that an income of $10,301 annually should nonetheless be imputed to him.
- Father is not entitled to spousal support, and even if he was, the quantum payable would be $NIL.
- Father’s imputed income is not sufficient to obligate him to pay child support.
- As success was divided between the parties, each shall bear his or her own costs.
Detailed Analysis
1. Restraining Order
Section 35 of the Children’s Law Reform Act, and section 46 of the Family Law Act, both authorize a court to make a final order against any person where an applicant has reasonable grounds to fear for his or her safety. Section 28(1)(c)(i) of the CLRA authorizes the court to make a less intrusive order limiting contact between parties or between one of the parties and any child.
Mother seeks an Order restraining Father from communicating with her directly or indirectly and prohibiting him from attending within 500 metres of her residence or any location where she is known to be. Father does not actively contest the non-communication portion of this request but resists the geographic restrictions.
In Kocabas v. Polat, 2025 ONSC 1237, para 69, Justice Kraft summarized the applicable principles in determining whether a restraining order is appropriate on a final basis following trial, citing A.M. v. S.D., 2020 ONCJ 479, para 95:
a. Restraining orders are serious and should not be ordered unless a clear case has been made out.
b. A Restraining order is serious, with criminal consequences if there is a breach. It will also likely appear if prospective employers conduct a criminal record (CPIC) or vulnerable persons search. This could adversely affect a person’s ability to work. It may affect a person’s immigration status.
c. It is not sufficient to argue that there would be no harm in granting the order.
d. Before the court can grant a restraining order, it must be satisfied that there are “reasonable grounds for the person to fear for his or her own safety or for the safety of their child.”
e. The person’s fear may be entirely subjective so long as it is legitimate.
f. A person’s subjective fear can extend to both the person’s physical safety and psychological safety.
g. 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.
h. A restraining order will be made where a person has demonstrated a lengthy period of harassment or irresponsible, impulsive behaviour with the objective of harassing or distressing a party.
i. A restraining order cannot be issued to forestall every perceived fear of insult or possible harm, without compelling facts.
j. Courts should have regard for the passage of time.
k. In borderline cases, the court must consider what other protections may be available if a restraining order is not granted.
l. It is appropriate, in borderline cases, to consider the balancing prejudice to the respondent, if the restraining order is granted.
m. A no-contact or communication order made pursuant to section 28 of the Act is not as wide-ranging as a restraining order.
n. A court is not precluded from making a final restraining order if a party has complied with a temporary order under section 28 of the Act.
I have considered all of the evidence presented at trial in light of the above factors. I find that Mother has a reasonable and legitimate fear arising from the history of the relationship and from the events following the date of separation. In the context of the relationship between these parties, which is tainted by a history of intense family violence, I find that a communication limitation under section 28(1)(c)(i) would not be sufficient to protect Mother.
While a Restraining Order may have some negative impact upon Father’s immigration status in Canada, I have no specific evidence in that regard. Father’s evidence is that, as of today’s date, he has not yet started his refugee claim.
As Justice Sherr noted, parties sometimes behave best when under court scrutiny. Here, Father’s harassing behaviours immediately post-separation stopped after he was contacted by police. This is to his credit, however his bitterness toward Mother came through in his evidence at trial, and I find that there is still a risk to her safety in the event that the existing restraining terms were to be discontinued. A geographic restriction on locations where Father knows Mother to be is appropriate.
2. What is Father’s income for the years 2022, 2023 and 2024, and going forward?
As Mother’s income has been disclosed and Liz has resided exclusively with her, the focus is on Father’s income for child support purposes for 2022 through to date.
Imputing Income
Section 19(1) of the Federal Child Support Guidelines, SOR/97-175 addresses the imputation of income to an individual responsible for supporting a child. In the federal legislation, applicable to this matter addressed under the Divorce Act, the term “spouse” is used to describe such an individual. The court may impute such amount of income as it considers appropriate in the circumstances. Nine examples of such circumstances are set out at the subparagraphs to section 19(1), and two are relevant to this matter:
- (a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable education or health needs of the spouse;
- (f) the spouse has failed to provide income information when under a legal obligation to do so;
Intentional Underemployment
In Lavie v. Lavie, 2018 ONCA 10, Justice Rouleau on behalf of the Ontario Court of Appeal reviewed the application of section 19(1)(a) of the Guidelines and its discussion by the Ontario Court of Appeal in Drygala v. Pauli. The analysis takes two steps: (1) the payor parent must be intentionally underemployed; and (2) if so, the underemployment can be excused due to childcare obligations or to educational or health needs of the payor parent.
At paragraph 26 of his reasons, Justice Rouleau confirmed that there is “no requirement of bad faith or intention to evade support obligations inherent in intentional underemployment,” writing:
The reasons for underemployment are irrelevant. If a parent is earning less than she or he could be, he or she is intentionally underemployed.
Similarly, in Lawson v. Lawson, the Court of Appeal unanimously confirmed the analysis in Drygala v. Pauli and further commented, at paragraph 19:
Intentional underemployment occurs when a payor chooses to earn less than he or she is capable of earning. There is no need to find a specific intent to evade child support obligations before income can be imputed on the basis of intentional underemployment.
It is uncontested that Father has not worked since arriving in Canada. He was a small business owner in Chile and capable of earning sufficient income to support the family there. He came to Canada to improve his employment prospects through additional education. He has taken no steps to move forward in obtaining a work permit in Canada. I find that he is earning less than he is capable of earning, and thus is intentionally underemployed at law.
The analysis then turns to whether Father has a “reasonable excuse” for his underemployment. There are four possible excuses: (1) the needs of a child of the marriage; (2) the needs of another dependent child; (3) the individual’s own reasonable educational needs; or (4) the individual’s own health.
In the context of this matter, where both parties are clearly unable to communicate sufficiently in English to sustain employment in customer service, I include language limitations under the concept of “the individual’s own reasonable educational needs.” Father further submits that, even if he were to obtain a work permit, he would only qualify for menial labour and is unable to do such work due to his medical conditions.
I find that Father’s medical condition, taken together with his educational needs, combine to result in an excuse for his unemployment pursuant to section 19(1)(a) of the Guidelines.
Lack of Income Disclosure
The second potential area of income imputation arises from a failure of financial disclosure.
Financial disclosure is essential to the proper handling of support matters in our family courts. As Justice McSweeney observed:
“the most basic, foundational obligation on both parties in family law matters is to fully disclose their financial information. The requirement is immediate, ongoing, and automatic, and should not require court orders.”
It has been said that non-disclosure is the cancer of family law. It is an aggressive form of the disease that metastasizes to thwart the natural progression of the application of the law to the factual foundation that it has infected.
All those ordered to pay child support have a statutory obligation to make ongoing frank financial disclosure under sections 21 and 25 of the Guidelines. That requirement is mirrored in Rule 13 of the Family Law Rules. Father produced a Financial Statement with his Answer originally (in 2023) and completed a second one for this trial. As he files no income tax returns and has no income from regular employment, he has no such documents to provide. He attached his bank statements to an Affidavit submitted for trial. In that regard, he has complied with the disclosure ordered by Justice Piccoli at the Trial Management Conference.
Having said this, Father did not disclose any information regarding the value of monetary and in-kind contributions that he regularly receives to maintain his standard of living. A review of the entries on his bank statement shows a total of $36,111 received from three acquaintances between the date of separation and the end of May 2025 (31 months). Of that amount, Father attests that he must repay one person $2,500 and another person $7,000. Father provided no proof of repayments made during this time. Thus, Father received $26,611 in monetary gifts over the 31-month period.
I find that section 19(1)(f) of the Guidelines applies such that income may be imputed to Father as a result of the absence of full and frank financial disclosure.
What Income Amount Should be Imputed?
The Court’s next task is to determine an appropriate figure to impute as income. In Lawson v. Lawson, Justice Gillese wrote:
When imputing income based on intentional underemployment, a court must consider what is reasonable in the circumstances. The factors to be considered are the age, education, experience, skills and health of the payor, as well as the payor’s past earning history and the amount of income the payor could earn if he or she worked to capacity.
The amount imputed is within the court’s discretion, but the exercise of that discretion must have some rational basis in the evidence. As Justice McGee observed:
“The evidentiary basis may be less than satisfactory, provided that it is sufficient for the court to judicially exercise its discretion. The court must work with what it has.”
On behalf of Mother, Ms. Sohail argues that minimum wage income should be imputed to Father. However, it is undisputed that Father has no means of regular employment available to him. Father attested that he applied for a position with a local furniture repair company, and that the prospective employer was impressed with his abilities, but that his immigration status prevented him from getting the job. There is no factual foundation upon which to base a conclusion that Father is capable of employment equivalent to minimum wage earnings.
However, Father receives regular funds from three individuals; the rationale for this funding appears to be charitable. These funds cover Father’s costs of living, and his own evidence is that only a portion thereof must be repaid ($9,500 out of $36,111). Note no value is attributed to in-kind food and clothing that he has received.
The amount of $26,611 received as non-repayable funding from acquaintances over the 31-month period from the date of separation to the end of May 2025 extrapolates to $10,301 annually, an amount too low to require a notional tax gross-up. This is the income that will be imputed to Father.
3. Is Spousal Support Payable by Mother to Father?
The parties were married; therefore, the Divorce Act applies. Section 15.2(6) of the Divorce Act provides that spousal support should:
- recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
- 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;
- relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
- in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
Sub-sections 15.2(4) and (5) provide direction for the court’s consideration in determining spousal support:
(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including
- the length of time the spouses cohabited;
- the functions performed by each spouse during cohabitation; and
- any order, agreement or arrangement relating to support of either spouse.
(5) In making an order under subsection (1) or an interim order under subsection (2), the court shall not take into consideration any misconduct of a spouse in relation to the marriage.
The parties were married for more than thirty years. The undisputed evidence is that Mother was responsible for all domestic duties in Chile, including food purchase and preparation, household maintenance and childcare, while Father was the primary income earner. I find that Father has no claim for compensatory spousal support against Mother.
Upon arrival in Canada, Mother had a work permit and Father did not. Father’s evidence was that he intended to retrain and find work, but that he has found himself unable to progress in learning English. Father’s health issues, which started in Chile, did not prevent him from continuing his business ventures there but there is some credible evidence that his conditions have worsened since.
At best, Father might theoretically be entitled to non-compensatory time-limited support arising from the circumstances of his status in Canada. However, Mother did not undertake to support him during the immigration process (he is here on his own visitor’s visa). Further, the parties were in Canada roughly 15 months before separation; more than double that time has passed since separation and Father has done nothing to improve his overall situation. It seems to me that allowing a non-compensatory claim in these circumstances would be inappropriate.
If I am wrong, and Father is entitled to spousal support, Mother simply does not have the means to pay. Her employment is limited by her difficulties with the English language and her lack of any formal education past grade school. Her own working hours as a cleaner are inconsistent and her income unreliable. She is reliant upon the contributions of her two adult children to make ends meet in the family home. She is still supporting the parties’ minor child, Liz, without any contribution from Father. Thus, in the absence of any ability of Mother to pay any amount of spousal support, Father’s claim fails on this ground.
Finally, I feel it is important to comment on the applicability of section 15.2(5) to this situation. Most of the caselaw regarding this section deals with the impact of family violence upon the income-earning capacity of the survivor spouse. The Supreme Court of Canada addressed this point squarely in Leskun v. Leskun, 2006 SCC 25, para 34, in which Justice Binnie wrote for the unanimous court:
There is, of course, a distinction between the emotional consequences of misconduct and the misconduct itself. The consequences are not rendered irrelevant because of their genesis in the other spouse’s misconduct. If, for example, spousal abuse triggered a depression so serious as to make a claimant spouse unemployable, the consequences of the misconduct would be highly relevant (as here) to the factors which must be considered in determining the right to support, its duration and its amount. The policy of the 1985 Act however, is to focus on the consequences of the spousal misconduct not the attribution of fault.
In contrast, there is little discussion in the jurisprudence to date regarding the section’s applicability to conduct by a perpetrator spouse who seeks support. It has previously been held that violent conduct by a putative recipient spouse could be considered in reducing spousal support where such conduct was not “in relation to the marriage” (Sivarajah v. Muralidaran, 2016 ONSC 5381, paras 31–32). But in situations such as this one, where the individual claiming support admits to perpetuating family violence throughout the relationship, what is to be done with the wording of section 15.2(5)?
Such a situation – where an admitted abuser seeks to be financially supported by his victim – is analogous to the public policy rule that a criminal may not profit from a crime. As Justice Major wrote for the majority of the Supreme Court of Canada in Oldfield v. Transamerica Life Insurance Co. of Canada, 2002 SCC 22:
The public policy rule at issue is that a criminal should not be permitted to profit from crime. Unless modified by statute, public policy operates independently of the rules of contract. For example, courts will not permit a husband who kills his spouse to obtain her life insurance proceeds, regardless of the manner in which the life insurance contract was worded. ... The public policy rule that prevents criminals from profiting from crime has existed for many years. ... The basic rule of public policy which is not disputed is that the courts will not recognize a benefit accruing to a criminal from his crime.
Surely an order compelling a survivor to financially support her abuser would perpetuate financial abuse and would make the law “an ass,” to quote Dickens. It seems to me that in order to modify foundational public policy by statute, Parliament would need to refer specifically to the perpetuation of family violence in the wording of section 15.2(4). I am not suggesting that all situations of family violence should automatically trigger a denial of spousal support to the alleged perpetrator; each case must turn on its own facts. I am simply concluding that, as with the impact of violence on a survivor’s self-sufficiency, it must be open to the court to consider the public policy principle that, at its core, militates against requiring a survivor of abuse to support his or her abuser financially.
Thus, although I have found that Father is not entitled to spousal support; and that, if he is so entitled, Mother has no means to pay spousal support; it is further my view that the prohibition on a consideration of misconduct during the marriage cannot include a situation of admitted family violence. I find that, on the specific facts of this case, Father’s abusive conduct disentitles him to receive spousal support from Mother.
4. What Amounts of Child Support Are Payable, Both in Arrears and Going Forward?
Father’s imputed income of $10,301 is too low to engage the Child Support Guidelines table for the Province of Ontario. Therefore, no child support is payable by him for Liz.
5. Costs
Father was successful in his position on child support; Mother was successful in her positions regarding spousal support and the restraining order. Thus, as success was divided in this matter, each party shall bear his or her own costs.
Final Order
Based on all of the foregoing, Final Order to go (with counsel to insert full names and dates of birth):
- Restraining Order to issue separately, prohibiting Father from communicating with Mother directly or indirectly and prohibiting him from attending within 500 metres of her residence or any location where she is known to be.
- Neither party shall pay any amount of child or spousal support to the other.
- All remaining issues raised in this litigation are dismissed.
Released: June 19, 2025

