Court File and Parties

Court File No.: FC-16-FS051514-0002 Date: 2026/02/23 Superior Court of Justice - Ontario

Re: Colin Number, Applicant And: Judith Zuniga Leon, Respondent

Before: The Honourable Justice F. Wood

Counsel: Julie Zimmerman, Counsel for the Applicant Amy Green, Counsel for the Respondent

Heard: February 9, 2026

Endorsement

[1] The Applicant commenced a Motion to Change on September 3, 2024. The primary relief sought in that proceeding relates to parenting with respect to the parties' child, Siam Number Zuniga, born September 3, 2008. He also seeks relief with respect to what he says is an error in the underlying final order, and an accounting with respect to monies he says he overpaid for spousal support and equalization. As an aside, and as discussed with counsel during the hearing of the motion, the court queried whether some of the relief is properly a motion to change based on a material change in circumstances, or whether it should be brought pursuant to Rules 1(8) and/or 25(19). Counsel are encouraged to address these points in advance of the upcoming Settlement Conference.

[2] On the interim motion before the court, the Respondent seeks retroactive/retrospective and ongoing child support as well as an order compelling the Applicant to finalize the divorce. Shortly before the motion was to be argued, the parties resolved the matter of ongoing support effective January 1, 2026. That left only the issue of child support from 2020 through 2025 and the divorce.

Child Support

[3] The parties reached a consent with respect to all issues arising from their separation which resulted in the final order of Justice Piccoli dated January 8, 2020. In assessing child support up to December 31, 2025, there are a number of relevant periods of time to which different considerations apply.

1. January 8, 2020 – May 22, 2022 – Siam continued to spend roughly equal time with the parties after the final order until May 22, 2022.

2. May 22, 2022 – November 24, 2024 –Siam has not had overnight parenting with the Applicant since May 22, 2022. The Respondent's Response to Motion to Change wherein she sought a variation of child support and relief with respect to parenting was commenced November 24, 2024.

3. November 24, 2024 – December 31, 2025 – This is the period after the Respondent's formal request until the consent order which commences January 1, 2026.

Threshold Question

[4] The Applicant's primary argument on this motion was that interim motions within a Motion to Change are discouraged. He relies on several decisions which hold that before a judge will make an interim motion within a Motion to Change, there must be compelling and exceptional circumstances. See S.H. v. D.K., 2022 ONSC 1203, Pham v. Ho, 2022 ONSC 1625, and Matos v Driesman, 2023 ONS 6548. His position is that any determination of support prior to January 1, 2026, should be left to the final hearing.

[5] The Applicant notes that he has been paying support pursuant to the 2020 Order in the amount of $656/month and is not in arrears. He argues that there is nothing compelling that requires the court's intervention on an interim basis. He also argues the other financial adjustments he is seeking should be addressed before child support arrears are determined.

[6] The Respondent argues that the Applicant has refused to adjust child support to account for Siam's change in residence and refused to vary prospective support until she brought this motion. She notes that while the Applicant insists that he is ready and willing to adjust support appropriately, he refuses to actually do so for strategic reasons. She argues that support should be varied either back to 2020 or to May 2022 on an interim basis.

[7] The Respondent acknowledges the decisions noted above, but relies on K.L. v. P.L., 2011 ONSC 6424, in which a motion judge made an interim support order in the context of a Motion to Change, finding that support needed to be addressed pending trial. She also relies on Raji v. Lomonaco, 2023 ONSC 7033 in which the court found that the moving party had established compelling circumstances because the children's residence had changed, finding that "[t]he children need support now."

[8] K.L. predates the authorities, including Divisional Court authorities, cited by the Applicant and should be treated with caution. On the other hand, the cases referred to remark upon the need for a fulsome hearing of disputed issues. In Pham v Ho, for example, Diamon J. writes: "[t]hat request requires a fulsome, thorough hearing by way of a long motion (in the Toronto Region)." In Matos v. Driesman, the court cautioned against making piecemeal orders that might cause injustice. In that case, the support payor was seeking a reduction in monthly payments, without addressing significant arrears of child support. The payor had been found to be engaging in litigation abuse. That is not the case here. There is no allegation that the Respondent owes any child support arrears to the Applicant.

[9] In considering this motion, the court notes the following:

1. Child support is the right of the child.

2. Determination of appropriate child support should not be delayed until claims regarding property division or spousal support have been addressed. (see Grant v. Grant, 2021 ONSC 1202, at para. 6.)

3. While determination of contested matters should be left to the final hearing, where there is no real dispute between the parties, the primary objective of the Family Law Rules as set out in Rule 2 supports making an order without further litigation.

[10] In this case, despite the parties' high conflict and apparent desire to argue about every minutia, there are few serious disputes regarding child support. In particular:

1. The parties agree where Siam was living at all material times. The Applicant is deeply unhappy that Siam has not lived with him and in the context of arguing about the parenting issues, he will have a great deal to say about that. But the timeline itself is not disputed. Child support is payable. (see Grant v. Grant, 2021 ONSC 1202, at para 8).

2. The Applicant's income is agreed upon with a few exceptions which are discussed in greater detail below.

3. The Respondent's income is not seriously contested. The Applicant initially posited that there was evidence that the Respondent had a tenant, but during argument of the motion, it was clarified that this was not the case. [^1]

[11] The final order requires the parties to adjust child support annually as their incomes change. Doing so does not typically require anything more that the simple exchange of Income Tax Returns. Sworn Financial Statements, Motions to Change, and other formal procedures are not needed. Except where there is a legitimate dispute about a parties' income or some other factor involved in determining child support, there is no reason to delay the adjustment of child support as called for in the final order. Any suggestion that such a determination must wait until the final hearing of the Motion to Change is contrary to the entire purpose of the automatic variation clauses contained in support orders.

[12] Automatic variation clauses and clauses requiring annual exchange of income information are intended to simplify adjustments to child support on an annual basis. They are intended to avoid complex Motions to Change and other formal requirements which only add delay and expense to what should be a very simple exercise. The goal is to ensure that appropriate child support is always available for the benefit of children of separated parents without requiring support recipients to come back to court regularly.

[13] Even where there has been a material change in circumstances, if the parties agree about the material change, there is simply no merit to putting a determination off until a full hearing. Doing so only serves to deprive the child of support to which he is properly entitled. The parties' positions as to whether the circumstances of this case meet the "compelling and exceptional" threshold, while intellectually interesting, ignore a simple underlying reality – they agree where the child was living, and they agree (for the most part) what their incomes are. Litigating for the sake of litigating should be discouraged. Rule 2(2) of the Family Law Rules sets out that "[t]he primary objective of these rules is to enable the court to deal with cases justly." Rule 2 goes on to elaborate on the primary objective. In particular, Rule 2(5) requires the court to "promote the primary objective by active management of cases, which includes, (a) at an early stage, identifying the issues, and separating and disposing of those that do not need full investigation and trial."

[14] Adjusting child support where there are no disputed material facts, and ample evidence of income is available to the court, seems to be precisely the sort of situation contemplated by Rule 2(5)(a).

[15] The Applicant argues that he is owed money as a result of an overpayment of equalization and spousal support and that any adjustment of child support should wait until that claim has been resolved. The Respondent denies any overpayment. Regardless, as noted above, disputes about property and spousal support should not delay determination of appropriate child support. The Respondent needs support to properly care for Siam now, not whenever this matter might get to trial. Payment of child support should not have to await determination of the Applicant's unproven claims.

Support Amounts

January 2020 – December 2020

[16] In 2020 the Applicant cashed in RRSPs. There is dispute between the parties as to whether the RRSP income should be included in income for child support purposes. That determination is one of the few that does require a full hearing. Support adjustments for that year will have to wait until the final hearing of this matter.

January 2021 – May 2022

[17] In 2021 and 2022, the Applicant was required to repay some benefits he had received, and his income was accordingly adjusted. Although he alleges that the income figures used by the Respondent do not take those adjustments into account, a brief review of his Notices of Assessment bely that argument. In fact, the figures cited by the Applicant as representing his true income are derived from Line 23600 rather than Line 15000.

[18] An interim order will issue based on the Line 15000 incomes from the Notices of Reassessment without prejudice to the Applicant arguing at trial that his Line 23600 should be used, should he choose to do so.

May 2022 – December 2022

[19] Despite the Applicant's distress over Siam's change in residence, he acknowledges the fact that Siam has lived primarily with the Respondent since May 2022. Child support is the right of the child. At least while a child is a minor, disputes about why a given parenting arrangement is in place do not impact the child support payable.

[20] An interim order shall issue terminating the Respondent's support obligation effective June 1, 2022, and ordering the Applicant to pay support based on his Line 15000 income for Siam commencing June 1, 2022, again without prejudice to him arguing that his Line 23600 should be used, should he choose to do so.

January 2023 – December 2024

[21] There is no dispute about the Applicant's income, nor where Siam was residing in those years. There is no reason that an interim order should not issue immediately adjusting support to be based upon the Applicant's actual incomes in those years.

[22] The court is alive to the fact that support prior to the November 2024 Response to Motion to Change is subject to a different analysis than for the period thereafter. As these orders are being made on an interim basis, they remain subject to change on the final hearing.

Divorce

[23] When the parties resolved the substantive issues on January 28, 2020, they made provision for the Applicant to proceed with the divorce. Specifically, the order provides:

The Applicant Father shall proceed in obtaining an uncontested divorce after the payments set out in paragraphs 53, 57 and 58 are paid in full.

[24] The referenced clauses address lump sum spousal support, transfer of the matrimonial home and equalization.

[25] The Respondent argues that the intent of the order was to permit the Applicant to pay some or all of the required payments by way of a spousal rollover – this would reduce his tax liability in an amount greater than the long-term tax liability to her. The Applicant argues that the intent of the clause was to delay the divorce until there had been a full and proper accounting of all payments made by him.

[26] There are difficulties with both positions. A spousal rollover would have required a gross-up of the amount being rolled over, which does not appear to have been contemplated. On the other hand, the Respondent's interpretation is inconsistent with the actual wording of the order. It does not say "when both parties are satisfied that the appropriate payments have been made"; it says, "after the payments have been paid in full."

[27] In any event, the order is what it is. It stands on its own and disputes about why clauses were inserted do not assist. The clause is clear – when certain payments have been made, the Applicant shall obtain a divorce. There is no dispute that the payments have been made. The Applicant argues that he actually paid more than necessary, but that does not change the fact that the amounts set out in the order have been paid.

[28] The Applicant's position essentially amounts to an argument that the divorce should be delayed until there has been a final resolution of his claims regarding an overpayment. The case law does not support such an approach. A divorce should be granted unless one party may be disadvantaged as a result of the order. As noted by Gray J. in Al-Saati v Fahmi, 2015 ONSC 1114, the word "disadvantage" means "legal disadvantage that the responding party may suffer if severance is granted. It must mean more than simply allowing the divorce to be withheld or delayed as a form of leverage for other issues that can be pursued separately."

[29] There is no basis here to delay the divorce. The Applicant shall file all necessary materials to set the divorce down within 30 days.

Orders to go:

1. On an interim and without prejudice basis, from January 1, 2021 to December 31, 2021, the parties shall each pay to one another, child support for Siam, based upon their Line 15000 incomes for 2021 and the Child Support Guidelines.

2. On an interim and without prejudice basis, from January 1, 2022 to May 31, 2021, the parties shall each pay to one another, child support for Siam, based upon their Line 15000 incomes for 2022 and the Child Support Guidelines.

3. On an interim and without prejudice basis, from June 1, 2022 to December 31, 2022, the Applicant shall pay to the Respondent, child support for Siam, based upon his Line 15000 income for 2022 and the Child Support Guidelines.

4. On an interim and without prejudice basis, from January 1, 2023 to December 31, 2023, the Applicant shall pay to the Respondent, child support for Siam, based upon his Line 15000 income for 2023 and the Child Support Guidelines.

5. On an interim and without prejudice basis, from January 1, 2024 to December 31, 2024, the Applicant shall pay to the Respondent, child support for Siam, based upon his Line 15000 income for 2024 and the Child Support Guidelines.

6. On an interim and without prejudice basis, from January 1, 2025 to December 31, 2025, the Applicant shall pay to the Respondent, child support for Siam, based upon his Line 15000 income for 2025 and the Child Support Guidelines

7. On consent, order to go pursuant to paragraphs 1,2,5,6, 7& 8 of the draft Order contained at page A595-A596 of Case Centre.

8. The Applicant shall file all necessary materials to set the divorce down within 30 days.

9. If the parties are unable to resolve the matter of costs, they may make submissions in accordance with Rule 24(19).

Justice F. Wood

Released: February 23, 2026

[^1]: This was a perfect example of how these parties' failure to engage in simple communication and failure to require their lawyers to engage in problem solving rather litigating minutiae is causing both of them to spend time, money and energy unnecessarily. It turns out that in one note from Siam's counsellors, the counsellor noted that Siam lived with his mother and …. The name was redacted. Rather than simply ask "what word is redacted?", the Applicant developed a complex theory that the Respondent must have a tenant and then went on to make a lengthy and expansive disclosure request and insisted that she was hiding income. Likewise, when faced with those requests, the Respondent could simply have said "Here is unredacted version of those notes. You will see that the redacted name is our family cat." Doing so would have saved everyone significant time and money. Instead, hours of expensive lawyer time, and pages of written materials were devoted to arguing about whether the Applicant had hidden income. During argument of the motion, with the court's intervention, this issue was clarified, simply, easily and quickly. Both parties have preferred to argue about details that are, in fact, very simple to resolve, to their mutual detriment. The court implores them to approach future disagreements with a problem-solving mindset.