Court File and Parties
Court File No.: FS-24-00047483-0000 Date: 2026-03-18 Superior Court of Justice - Ontario
Re: Ihab Edward Gerges, Applicant And: Nancy Fanous, Respondent
Before: Associate Justice J. Glick
Counsel: Mehwish Rasheed, for the Applicant Karim Morgan, for the Respondent
Heard: February 25, 2026
Endorsement
1This is a motion by the Respondent Nancy Fanous ("Respondent"). This motion is brought with leave pursuant to Justice Petersen's endorsement of November 28, 2025. Justice Peterson granted the Respondent leave to bring motions for (1) access to the Parties' Oakville condominium ("Oakville Condo") so that the Respondent can reside there pending its sale; and (2) interim spousal support. While the Respondent seeks additional relief, the only relief addressed in this decision relates to these two issues.
2For the reasons that follow, I find that the Respondent may live in the Oakville Condo pending its sale and that the Applicant may only attend on reasonable notice to the Respondent as described below. I also order the Applicant to pay spousal support to the Respondent on an interim and without prejudice basis in the amount of $4,500 monthly.
Background
3The Respondent and the Applicant Ihab Edward Gerges (the "Applicant," collectively "the Parties") were married for 28 years before separating on May 22, 2024. They married in Egypt on May 22, 1996 and moved to Canada on or about June 22, 1996. There are two children of the marriage – MG, born May 28, 1997 and TG, born February 3, 2000. TG was in post-secondary education at the time of separation, but by the time of this motion, had completed her education.
Respondent's Evidence
4The Respondent says that all of TG's expenses up until October 31, 2024 were shared equally by the Parties. The Respondent also gave TG her car and covered all of the car's costs.
5The Respondent states that throughout the marriage she was the victim of intimate partner violence. She says that notwithstanding that reality, she was falsely charged with assault by the Applicant. As a result of those false allegations, the Respondent says she was arrested and removed from the matrimonial home. She says that she has been prohibited from returning since, and has not had access to her valuables or property. At the time of the motion, the charges have been withdrawn.
6The Respondent also says that, in spite of a previous agreement between the Parties to allow the Respondent to reside in a jointly owned investment property, the Applicant refused to allow her to reside there. This is the Oakville Condo which is the subject of the motion. The Oakville Condo is vacant and currently listed for sale.
7The Respondent says that the Applicant's previous counsel told her that the Applicant intended to use the Oakville Condo. As a result, due to her charges, the Respondent was told it would be a breach of her release conditions if she were to attend at the property. Instead of using it though, the Applicant insisted it be listed for sale. The Respondent believes that the Applicant has simply tried to keep her from making use of the Oakville Condo.
8Because the Respondent was unable to live at the Oakville Condo, the Respondent initially resided with friends and family members. As of April 30, 2025, the Respondent has been living in a room in a boarding house. She pays $1,000 a month and has no access to a kitchen. She shares a bathroom with the other residents of the boarding house. She contrasts this with the Applicant's living situation, noting that the Applicant has exclusive possession of the matrimonial home. The matrimonial home has four bedrooms and four bathrooms, and the Respondent estimates it is worth approximately $2,000,000.
9The Respondent says that upon arriving from Egypt to Canada, she worked as an administrative assistant. The Respondent supported the family while the Applicant studied. This continued even after MG was born. At that time the Respondent started studying for a six-month course to upgrade her skills.
10In or around January 1998, the Respondent says that she obtained full-time employment as IT support and continued to work to support MG and the Applicant. She says she stayed at home and was the primary caregiver of MG and took care of all household work and chores.
11The Respondent began a course of study at McMaster in 1999. She took computer science. In the summer of that year she became pregnant with TG. She also continued to work until taking maternity leave in February 2000. After maternity leave the Respondent returned to work to continue to support the family.
12The Respondent says that as the primary caregiver of the children, she had to prioritize her availability for them over her career and education. She says she missed promotions at work and had to withdraw from the program at McMaster. Her income, she says, stagnated at around $45,000 a year.
13The Respondent says that because of her, the Applicant was free to focus on "his own education, professional development and career advancement". The Applicant was able to complete a Masters of Engineering and secure employment in the career of his choice. He was also able to complete an MBA. This led to a salary of over $200,000 per year.
14The Respondent also provides her medical history. The Respondent suffers from a number of medical conditions which she says cause her significant and widespread physical pain, which she has experienced since 2006. She has also suffered from other conditions since 2009. She is on various medications to treat the symptoms of those conditions. She is eligible for a CPP disability pension which was retroactive to October 2010.
15The Respondent says she was terminated from her employment due to her health issues in 2011. She received a $95,000 settlement from Great West Life, the insurance provider for her company at the time. She received a net payment of $68,858.34, which was used to pay down the mortgage on the matrimonial home.
16The Respondent says her health continues to deteriorate and that she requires extensive medical care. She provided a link to a dropbox containing her entire medical history, which I did not review. The bottom line is that she says that due to her health issues she is not able to work or support herself. She volunteers on an ad-hoc basis, when able to do so, usually only 1-5 times a month. She volunteers to promote social connection and her mental health.
17The Respondent says her only source of income is from CPP. She receives $1,189.36. This amount is insufficient to cover her living expenses including medicine, therapies, food and other daily living expenses. Her estimated costs are set out in her Financial Statement of December 29, 2025:
a. Housing: $1029.16
b. Public transit, taxis: $272.35
c. Health: $1452.88
d. Personal: $600
e. Utilities: $65.65
f. Household: $1534.23
g. Other Expenses (including legals): $4917.07
18The Respondent says her total monthly expenses are $9,871.34 with legal fees included and $6,135.17 without those expenses included. The Respondent notes that her medical costs are actually substantially higher, but that insurance currently pays 80% of those costs. She also says that her food costs are higher than they would otherwise be both due to her medical condition which prevents her from cooking when it is acting up, and also because she doesn't have access to a kitchen in her rooming house.
19The Respondent says she does not have access to funds except a limited RRSP. She has funded her living expenses after the date of separation by way of personal loans, which now amount to $45,000. While she says she withdrew $155,508 in cash from joint accounts, those funds were in the matrimonial home at the time of her arrest and she does not have access to them. The Respondent believes the Applicant has taken those funds for his own use.
The Applicant's Evidence
20The Applicant begins his affidavit by making allegations about the Respondent's credibility. He states that she has refused to attend questioning and that it was strategic, so as to avoid having that evidence in advance of this motion.
21The Applicant states that the Respondent was "untruthful" in her statement that the Parties contributed equally to TG's expenses up to October 31, 2024. He says that the expenses were paid from the joint account, where he was depositing his income. He states that "as the joint account would be equalized as of the date of separation, and as any amounts deposited into the joint account after separation would be credited solely to me" TG's expenses were paid entirely by him and he deserves reimbursement from the Respondent for the same.
22The Applicant goes on to state that the Respondent "falsely claims" that she "sacrificed" her car by giving it to TG when the Parties, who collectively owned two vehicles, made the choice to give one to TG while the other was shared between the Parties. I note here that the Applicant does not claim he continues to share his vehicle with the Respondent now.
23The Applicant denies the claim that the Respondent suffered intimate partner violence. He says that in fact it was the Respondent who abused him during the marriage. He also says it was his daughter MG who witnessed the Respondent physically assault him and who provided the information that led to the Respondent being criminally charged.
24On January 20, 2025 he says the Respondent filed a false complaint against him. During the investigation into that complaint MG told the police that the Respondent had been abusive towards the Applicant and the police charged her. This charge, he says, is what prevented the Respondent from living in the matrimonial home or condo.
25The Applicant says the real reason the Respondent was terminated was not disability but because she made a false complaint against her manager and coworker. He says that her allegations that he seized her property are similarly false, as is her claim that she could not retrieve possessions from the matrimonial home.
26The Applicant also denies that the Respondent was the primary caregiver of both children. He says that this "can be implied by the fact that both children are currently estranged with the Respondent as they witnessed her bad faith conduct against me after separation."
27The Applicant says the Respondent is intentionally unemployed. He says she is capable of returning to work and that her medical documentation does not support her claim of disability. He calls into question any medical documentation which would otherwise support the claim. He says the Respondent's current doctor is a family friend and therefore "a biased party, instead of a neutral professional." The current doctor also according to the Applicant lacks the qualifications to make an assessment about whether the Respondent has the ability to work.
28The Applicant says the Respondent is able to drive. He says her disclosure shows evidence of international trips, including post-separation. He says she engages in physical activity during her vacations. He provides some pictures in support. He also says he has video and photos of the Respondent moving items into a room at the matrimonial house post-separation before she was removed from the home.
29The Applicant says that the Respondent managed the Parties' finances, did physical housework and performed IT for him, which he says she can also do outside the house. He claims that since 2014 the Respondent has been capable of earning an income of at least $140,000 plus benefits. He bases this on what he says is her strong educational background in project management, network administration, and programming. He says that she was employed as a Senior IT Support and Network Administrator. He provides job ads which he says shows the income available to her. He says she has chosen not to return, having previously told him "I will enjoy my life and not deal with stupid people at work." I note that most of this section of the affidavit is argument as opposed to evidence.
30The Applicant also states that the Respondent is being untruthful about her financial circumstances. He says that the Respondent inflates her medical costs by insisting on non-generic drugs. He claims that she has produced false and incomplete financials. He says that she made transfers from joint accounts to sole accounts which she denies exist. He says she has failed to produce the title search of a property she owns in Egypt. The Applicant claims the Respondent forged documents using MG's notary public stamp and letterhead to falsify a contract. No details are provided with respect to this serious allegation.
31The Applicant states that the Respondent took family jewelry with an estimated value of $500,000 from the safety deposit box. He says she denies the existence of the gold and refuses to equalize it. The Applicant goes on to say that the Respondent took active steps to frustrate his ability to prove she took the gold or what she did with it. The Applicant also says that upon the Respondent's arrest two portable safes were delivered to the matrimonial home, which he says indicates that the Respondent has possession of "significant family jewelry/gold."
32The Applicant states that the Respondent withdrew funds in the amount of $110,000 out of joint accounts. He says it was returned, but that the Respondent then took out $34,000 that remains in her possession. This led the Applicant to close the joint accounts. He says that the Respondent did have a significant amount of cash on her at the time of her arrest, but says it is false that it was left in the matrimonial home.
33The Applicant claims that the Respondent donated to charity in 2025 and is in discussion with several banks in Egypt with respect to a transfer of funds to support her retirement in that country. The Applicant says the Respondent told him she spent $77,000 that she now claims was left in the matrimonial home.
34The Applicant claims that he is now owed $200,000 in post-separation adjustments. He argues that if the Respondent is awarded "excessive" spousal support at "this premature stage" and before questioning it will prejudice his case. He argues "the only way for me to get reimbursed for the amounts owing to me is through setting off the Respondent's spousal support claim." He goes on to expand on the payments he says are owing to him as a result of the separation, such as carrying costs of the Oakville Condo.
35The Applicant is willing to pay $1,000 a month in child support and to allow the Respondent to move to the Oakville Condo to save on rent. He claims that the Respondent refused this amount "as she is taking the position that she will either take the spousal support amount sought by her or nothing. This is not a reasonable position for someone who alleges to be financially destitute."
36The remainder of the affidavit is largely repetitive argument. He argues that the Applicant's income should be imputed, on a without prejudice and interim basis, at $100,000. On that basis, he says the Spousal Support Guidelines set out support at $2,641 per month on a low-range and $3,082 on the mid-range. He says though that because he is the only one paying the carrying costs of the matrimonial home and the Oakville Condo, if he is ordered to pay support in excess of $1,000 he will not have sufficient funds remaining for his own expenses.
37Finally, with respect to the Oakville Condo, the Applicant states that the conditions of release were what precluded the Respondent from residing in the matrimonial home or Oakville Condo. Now that the conditions are gone, he is agreeable to the Respondent residing there on an interim basis, but states he "must continue to have reasonable access to this property for the purpose of managing the sale of this property and she should not interfere with showings and related activities."
38I note, in reviewing the Applicant's Financial Statement that he has listed closing fees of the Oakville Condo as a monthly expense at $7,783.10 per month. He also lists legal fees at $6,591.67 per month.
Respondent's Reply
39The Respondent denies the allegations made by the Applicant in his affidavit. She states that she is agreeable to making the Condo available for showings by the realtor on reasonable request, but cannot agree to the Applicant having unfettered access.
Law
Threshold Question of Jurisdiction
40There is a threshold issue of the jurisdiction of an Associate Judge to hear this motion as it relates to the Oakville Condo. Subrule 42(5)(c) states that an Associate Judge has no jurisdiction "in respect of the determination of a right or interest of a party in real property". Subrule 42(8)(12) states that an Associate Judge can make a temporary order dealing with property other than real property. While there is an argument that these subrules preclude an Associate Judge from making temporary orders with respect to real property, I find that for the reasons that follow, I do have jurisdiction to address the issue of the Oakville Condo on an interim and without prejudice basis on the specific facts of this case.
41Rule 42 of the Family Law Rules provides Associate Judges assigned by the Regional Senior Judge the ability to case manage family law cases. The purpose of Rule 42 is set out in subrule 42(2): "to promote the active management, in accordance with subrule 2(5) of cases to which this rule applies by conferring specified family law jurisdiction on an associate judge assigned for the purpose by the regional senior judge."
42Subrule 2(5) of the Rules sets out the duty of the court to actively manage cases to promote the "primary objective" of the Rules. The primary objective of the Rules is set out at subrule 2(2) and is "to enable the court to deal with cases justly." Active case management under subrule 2(5) includes "helping the parties to settle all or part of the case" as well as "setting timetables or otherwise controlling the progress of the case" and importantly "dealing with as many aspects of the case as possible on the same occasion."
43Subrules 42(5)(c) and 42(8)(12) must be read in that context. Associate Judges cannot make final determinations of a right or interest in real property, nor can they make temporary decisions which may create a status quo which may influence a final determination of a right or interest. This does not mean however that an Associate Judge can not make any order at all with respect to real property, particularly where it is incidental to other relief sought on a motion such as spousal support, or where it simply regulates the conduct of the parties as a matter progresses, without determining or affecting the rights or interests of the parties with respect to that real property.
44Support for this proposition is found by reference to subrules 42(8)(9) and 42(8)(10) which provide an associate judge with jurisdiction to make temporary orders for support under both the Family Law Act and the Divorce Act (Canada). It is also found by reference to subrule 42(8)(16) which provides an Associate Judge the jurisdiction to make "an order that is necessary and incidental to the power to make a temporary order that is within the jurisdiction of the associate judge."
45I find therefore that the Order I am being asked to make on this motion – which addresses the terms of a party's residence in a jointly owned rental property in the broader context of a support motion - is therefore within the jurisdiction of an Associate Judge.
46In making such an Order I am not determining the rights or interests of any Party with respect to the real property. The Parties agree that the Oakville Condo is jointly owned. They have agreed to jointly retain a mortgage. They have also agreed to sell the property. Until sold, the Parties have agreed that the Applicant shall solely be responsible for the carrying costs. They have agreed as to how the proceeds of sale will be treated. That agreement has been converted into an Order of Justice Mills dated February 5, 2025.
47The determination of whether the Applicant can or can not access the Oakville Condo while the Respondent lives there does not require adjudication of any right of possession. The Oakville Condo is vacant. The Applicant agrees that the Respondent can reside there pending sale. The only issue remaining between the Parties concerns access on notice.
48In the alternative, if I am wrong in my interpretation above, I find that the Order I am being asked to make is not an order regarding real property, but rather an order regulating the conduct of the Parties in accordance with subrule 2(5). Again, there is no issue as between the Parties about whether the Respondent can live in the Oakville Condo. The issue is whether the Applicant can attend on notice where necessary to assist in the sale. The Respondent's concern is not with respect to the property, but with respect to being surprised by the Applicant's attendance while she may be sleeping or otherwise unavailable and to deal with potential conflict. Assisting the Parties by providing direction in this regard is well within the jurisdiction of an Associate Justice.
Interim Spousal Support
49Justice Kurz succinctly set out the law regarding interim support orders in the decision of Kahro v. Kahro, 2022 ONSC 6668 at paragraphs 28-31:
28The jurisdiction to order interim child and spousal support is found at s. 15.1(2) and s. 15.2(2) of the Divorce Act, R.S.C. 1985, s. 3 (2nd Supp.), as amended. Under those provisions, the court may, on application, make an interim order requiring a spouse to:
a) Pay for the support of any or all children of the marriage pending the determination of the application; and/or
b) Secure and/or pay, such lump sums and/or periodic sums as the court thinks reasonable for the support of the other spouse, pending the determining of the application.
29Under s. 15.2(4), the factors that a court must consider in determining interim spousal support are set out as follows:
(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
a) the length of time the spouses cohabited;
b) the functions performed by each spouse during cohabitation; and
c) any order, agreement or arrangement relating to support of either spouse.
30The four objectives of spousal support are set out in s. 15.2(6) as follows:
(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should
(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
31In Driscoll v. Driscoll, 2009 CanLII 66373 (ON SC), [2009] O.J. No. 5056, 2009 CarswellOnt 7393 (S.C.J.), Lemon J. of this court adopted the following "helpful list of principles governing interim support motions" found in Robles v. Kuhn, 2009 BCSC 1163, [2009] B.C.J. No. 1699:
On applications for interim support the applicant's needs and the respondent's ability to pay assume greater significance;
An interim support order should be sufficient to allow the applicant to continue living at the same standard of living enjoyed prior to separation if the payor's ability to pay warrants it;
On interim support applications the court does not embark on an in-depth analysis of the parties' circumstances which is better left to trial. The court achieves rough justice at best;
The courts should not unduly emphasize any one of the statutory considerations above others;
On interim applications the need to achieve economic self-sufficiency is often of less significance;
Interim support should be ordered within the range suggested by the Spousal Support Advisory Guidelines unless exceptional circumstances indicate otherwise;
Interim support should only be ordered where it can be said a prima facie case for entitlement has been made out;
Where there is a need to resolve contested issues of fact, especially those connected with a threshold issue, such as entitlement, it becomes less advisable to order interim support.
Imputing Income
50Justice Kraft clearly set out the law regarding imputing income when determining spousal support in Hickling v. Coates, 2022 ONSC 5455. I reproduce the relevant paragraphs of that decision here:
73The CSG sets out a non-exclusive list of criteria that would allow a court to impute income to a support payor, including intentional underemployment. The relevant provision states:
Imputing income
- (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;
74The leading Ontario case regarding the imputation of income to a support payor is the decision of the Ontario Court of Appeal in Drygala v. Pauli, 2002 CanLII 41868 (ON CA), 61 O.R. (3d) 711 (C.A.). At para. 32 of that decision, the Court described the imputation of income as:
... 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.
75As Chappel J. of the Superior Court Family Division explained in Szitas v. Szitas, 2012 ONSC 1548, at para. 56, citing Drygala:
The Ontario Court of Appeal has held that in determining whether to impute income on the basis that a party is intentionally underemployed or unemployed pursuant to section 19(1)(a) of the Guidelines, it is not necessary to establish bad faith or an attempt to thwart child support obligations. A parent is intentionally underemployed within the meaning of this section if they earn less than they are capable of earning having regard for all of the circumstances. In determining whether to impute income on this basis, the court must consider what is reasonable in the circumstances.
76In reviewing the case law, Chappel J. cites seven principles that apply to the imputation of income to a support payor at para. 57:
a. 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.
b. Underemployment must be measured against what is reasonable to expect of the payor having regard for their background, education, training and experience.
c. The court will not excuse a party from their child support obligations or reduce these obligations where the party has persisted in un-remunerative employment, or where they have pursued unrealistic or unproductive career aspirations. A self-induced reduction of income is not a basis upon which to avoid or reduce child support payments.
d. If a party chooses to pursue self-employment, the court will examine whether this choice was a reasonable one in all of the circumstances and may impute an income if it determines that the decision was not appropriate having regard for the parent's child support obligations.
e. When a parent experiences a change in their income, they may be given a "grace period" to adjust to the change and seek out employment in their field at a comparable remuneration before income will be imputed to them. However, if they have been unable to secure comparable employment within a reasonable time frame, they will be required to accept other less remunerative opportunities or options outside of the area of their expertise in order to satisfy their obligation to contribute to the support of their children.
f. Where a party fails to provide full financial disclosure relating to their income, the court is entitled to draw an adverse inference and to impute income to them.
g. The amount of income that the court imputes to a parent 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. (Citations omitted).
77Amplifying on Chappel J.'s seven points, while I have broad discretion to impute income to a payor, that discretion is not untrammeled. As the Ontario Court of Appeal stated in Drygala at para. 44:
Section 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 selected as an exercise of the court's discretion must be grounded in the evidence.
78In Drygala the Ontario Court of Appeal set out the following three questions which should be answered by a court in considering a request to impute income under s. 19 (1) (a) of the CSG:
a. Is the party intentionally under-employed or unemployed?
b. If so, is the intentional under-employment or unemployment required by virtue of his reasonable or health educational needs?
c. If not, what income is appropriately imputed?
79The test set out in Drygala was refined by the Ontario Court of Appeal in Lavie v Lavie, 2018 ONCA 10. There, Rouleau J.A., speaking for the court, set out a very clear black line test for intentional underemployment. It is one in which the subjective reasons for the underemployment (other than health or education needs) are not relevant. He wrote:
There is no requirement of bad faith or intention to evade support obligations inherent in intentional underemployment: Drygala v. Pauli, at paras. 24-37. the reasons for underemployment are irrelevant. If a parent is earning less than she or he could be, he or she is intentionally underemployed. [Emphasis added]
51As Justice Kraft noted at paragraph 42 of Bagust-Homes v Devine, 2023 ONSC 2978, "The test for imputing income for child support purposes applies equally for spousal support purposes: Di Sabatino v. Di Sabatino, 2022 CarswellOnt 383 (S.C.J.), para. 49, leave to appeal refused 2022 CarswellOnt 7089 (Div. Ct.)".
52I note that Justice Kraft in Hicking set out the law in the context of imputing income to a payor. The test is the same though for imputing income to a payor or a payee. This is clear from the Guidelines themselves, which set out the circumstances where a court may impute income to a "spouse" as opposed to a payor. It is also clear from a review of the case law, including the recent decision of Tulloch v. Khemet, 2026 ONSC 34. In that case Justice Ramsay applied the case law to determine whether income should be imputed to either the applicant or respondent. Justice Ramsay applied the law as described above in the analysis of whether to impute income to either party.
Analysis
Condo
53The Parties agree that the Respondent can live in the Oakville Condo pending sale. The Respondent agrees that the Parties' Realtor can attend on reasonable notice to show the property to potential buyers. The terms of the sale are already dealt with in Justice Mill's Order of February 5, 2025. As a result, on consent, I make an Order that the Respondent may live at the Oakville Condo pending sale.
54The only issue remaining to be resolved is the question of whether the Applicant can attend at the property and, if so, when. The Applicant says that he may need to attend at the property to assist with the sale. The Respondent is not opposed to the Applicant's attendance but wants there to be reasonable notice.
55I agree that an Order that the Applicant is allowed to attend the Oakville Condo on reasonable notice to the Respondent makes sense in the circumstances. An Order requiring reasonable notice will ensure that the Respondent has time to leave the Condo if she chooses, and that she is not indisposed when the Applicant attends. Reasonable notice in this case should be 24 hours, or as otherwise agreed by the Parties.
56As the only reason the Applicant says he may attend is to assist in the sale of the Oakville Condo, the Applicant's attendance should only be for that purpose. To avoid conflict, while the Respondent is living at the Oakville Condo, that attendance by the Applicant should also only be at the request or on the advice of the Parties' realtor.
57Finally, I note that the Oakville Condo is for sale. While the Parties agree that the Respondent may live at the Oakville Condo pending sale, neither party should take any step that would frustrate that sale. I do not make a formal order on this last point, however I encourage the Parties to conduct themselves in a manner that a further attendance on this point is unnecessary.
Spousal Support
58The Parties both agree that some spousal support ought to be paid. There is no question then that there is a prima facie case for entitlement to an interim order. The issue as between the Parties is the quantum of that support.
59The Respondent is seeking support in the range of $7318.00 a month, or in the alternative $6672.00 a month. The Applicant says he can only pay a maximum of $1000 a month. The Applicant argues that, leaving aside his inability to pay more than $1000, the spousal support owing to the Respondent under the Guidelines would be $2641.00 a month at the low range or $3082.00 at the mid-range.
60The difference in the Parties' calculations relates to the Applicant's position that there should be income imputed to the Respondent and also the income attributed to the Applicant. The Applicant says income should be attributed to the Respondent and that his income is less than the figure being used by the Respondent in her calculations.
Imputing Income
61The Respondent has, in her calculations in her affidavit, calculated support on an imputed income of $32,000. I accept this as the starting point of the analysis. The onus is then on the Applicant to establish that the Respondent is intentionally underemployed and should have additional income attributed to her. I find that he has not satisfied the onus.
62The Applicant has provided photos of the Respondent that he says shows she has engaged in physical activity at the time she says she is too disabled to work. The photos are undated. Some show the Respondent and Applicant together. Some show the Respondent on vacation. Some show the Respondent in or around a home walking up a flight of stairs, picking up a package and pushing a suitcase. It is unclear whether the Respondent knew she was being photographed in these last photos.
63I do not find the photographs to be persuasive evidence that the Respondent is intentionally underemployed. They do not speak to her medical condition or refute any of her statements as to her inability to work due to her health.
64The Respondent also provided a letter from Fr. Luke Mitry, the Priest at the Church where the Respondent volunteers. Evidence from Fr. Mitry ought to have been provided by way of affidavit. I note however that the letter does not assist the Respondent. Fr. Mitry states that the Respondent "has been actively volunteering with the church's senior group, Kitchen Service and Homeless Service (When her health condition allows her to help)". The statement "when her health condition allows her to help" seems to support the Respondent's assertion that her health is an issue interfering with her ability to work or volunteer.
65I also have no basis to conclude that the Respondent was terminated from her previous employment because she made false allegations against a coworker and a manager. While he says that these photos show the Respondent engaged in physical activity which he says shows she is not disabled, he provides no supporting documentation or evidence. I also have no evidence that the Respondent, who has not worked in her field since 2011, would be able to obtain employment as a Senior IT Support Analyst at a salary as suggested by the Applicant.
66In contrast, the Respondent has provided a note from her doctor setting out her medical conditions. She has provided an extensive list of medications that she has been prescribed. She has also provided evidence that she receives disability benefits. While the evidence from the doctor should have been by way of affidavit, I note that it corresponds to the other evidence provided in the Respondent's record.
67Having regard to the law set out above, and the evidence on this motion, I find that on an interim and without prejudice basis there is no basis to impute income to the Respondent above what she has proposed. The issue of whether to impute income to the Respondent is best left to trial on a full factual record. I therefore adopt the figure of $32,000 as put forward by the Respondent in determining quantum in the section below. As above, I find that it is fair to do so given the Respondent's use of that figure in her own calculations.
Spousal Support Quantum
68The Respondent says that the Applicant's income is approximately $215,000. The Respondent bases this on the Applicant's 2024 Notice of Assessment. The Applicant says that his income is $169,524. This is based on his sworn financial statement dated February 19, 2026. There are no supporting documents attached to that most recent financial statement. It is unclear why that is the case.
69The Applicant's Sworn Financial Statement from November 19, 2025 states that his total yearly income was $197,238.84. The Notice of Assessment attached to that document shows that for 2024 the Applicant's total income was $216,267. This figure accords with the one used by the Respondent in her calculations of spousal support.
70I have gone back to the Applicant's affidavit to determine if the Applicant explains this apparent change. The Applicant does not. At paragraph 21 of his affidavit he states that the Respondent could work and earn a minimum of $140,000 plus benefits, which would exceed his income, but that statement doesn't make sense even using his 2026 figures. It also doesn't explain those figures. The closest the Applicant comes is at paragraph 42 of his affidavit where he states that the new figure represents an estimate of his income of 2026.
71The only supporting evidence available to the court are the documents attached to the November 2025 sworn financial statement. Those show an income of approximately $216,000. I find this to be an appropriate figure to use on an interim and without prejudice basis in the absence of an explanation for the change only three months later. I note that I am not imputing income, but rather using the best evidence available on this motion.
72Using that figure and the Respondent's imputed income of $32,000, I accept the Respondent's calculations as set out at Exhibit "E" of her affidavit. With a marriage of 28 years and an age of 53 at separation, and with two adult children, the low-range amount is $5,719 and the mid-range amount is $6,672.
73The Applicant says that he cannot pay more than $1000 per month having regard to his monthly expenses.
74In applying the law regarding interim spousal support orders to the facts of this case, I place particular weight on the following factors:
a. The Applicant and Respondent were married for 28 years before separation.
b. The Applicant is living in the matrimonial home worth well over a million dollars which is mortgage free.
c. The Respondent has been living in a room in a rooming house with no access to a kitchen and access to a shared bathroom. She has no access to a vehicle. Prior to separation the Respondent shared the matrimonial home and a vehicle with the Applicant.
d. The Respondent has no source of income other than CPP, although I have imputed a higher income here. The Respondent's monthly costs are $6135 without legal fees.
e. The Applicant's monthly expenses minus amortized legal fees and the Oakville Condo closing costs are $13,686.54 in both his February and November Financial Statements.
f. The Applicant's monthly income, based on his November 2025 Financial Statement (which is listed as $197,238 as opposed to the approximately $216,000 of the NOA) is $16,436.57.
g. The cost of carrying the Oakville Condo is approximately $3600 accounting for the mortgage, condo fees and insurance. The Applicant is the only one paying for these costs.
h. Justice Mills' Order of February 3, 2025 ensures that the Applicant will be able to recover carrying costs of the Oakville Condo from November 6, 2024 until closing. Those costs include carrying costs (home insurance, mortgage, condo fees and utilities), closing costs and occupancy costs.
i. By living in the Oakville Condo until it sells, the Respondent will not need to pay rent.
75Taking all of the facts into consideration, and having regard to the law as articulated by Justice Kurz in Kahro, supra, I order that the Applicant shall pay to the Respondent spousal support on an interim and without prejudice basis of $4500 a month. This amount is lower than the Guidelines. As above, in making this order under the Guideline amount I am accounting for the Respondent being able to make use of the Oakville Condo and the payor's ability to pay. I note again that the costs of that condo are currently being paid by the Applicant. If the costs are accounted for as part of spousal support, the amount being paid is within the Guidelines.
76The amount of spousal support will need to be revisited at the time the Oakville Condo is sold. At that point, the Applicant will be able to recover the full carrying costs as set out in Justice Mill's Order. The Applicant's monthly expenses will also decrease as the Respondent's monthly expenses increase as she will need to find a new place to live.
Summary of Court Order
77This court makes the following orders:
a. The Respondent, on consent, may live in the Oakville Condo until it is sold.
b. The Applicant shall not attend at the Oakville Condo except to assist with the sale as recommended or requested by the Parties' realtor.
c. The Applicant shall not attend at the Oakville Condo without first providing the Respondent with reasonable notice of that attendance. Reasonable notice will be 24 hours notice or a shorter time as agreed to by the Parties.
d. The Applicant shall pay spousal support on a without prejudice and interim basis to the Respondent in an amount of $4,500 monthly.
78The costs of this motion are reserved to the cause.
Glick A.J.
Date: March 18, 2026