Overview

1The applicant wife and respondent husband were originally married in Serbia in December 2007, and divorced in Serbia 2009. After their original divorce, the parties reconciled and remarried in Serbia in December 2010.

2The parties immigrated to Canada in 2012, and resided in Etobicoke, Ontario until they separated in late January 2025. The parties have two children (both born in Serbia) who are currently seventeen and fifteen years of age respectively.

3There is no dispute that the parties’ two children now primarily reside with the respondent.

4The applicant brings a motion seeking an order that the respondent pay the applicant interim and without prejudice spousal support commencing May 1, 2026. Counsel for both parties confirmed at the hearing of the applicant’s motion that offsetting child support is due and owing from the applicant to the respondent.

5As described in greater detail hereinafter, while the respondent submits that the applicant’s request for interim spousal support is presently premature, the primary contentious issue between the parties on this motion is what income figures should be used for each of them in determining child and/or spousal support.

6At the conclusion of the hearing of the applicant’s motion I took my decision under reserve.

Summary of Relevant Facts

7The history of the parties’ relationship and what led to its breakdown is contested, and will likely be fleshed out if and when this matter proceeds to trial. However, for the purpose of the disposition of the applicant’s motion, the following facts are both relevant and not significantly in dispute:

In or around October 2024, the applicant travelled to Serbia to undergo breast augmentation surgery. According to the applicant, the surgery was significantly unsuccessful and resulted in major complications from which she nearly passed away.
After the failed surgery, the applicant describes resulting health issues (chronic pain, severe anxiety, depression and phycological trauma) which significantly impact her ability to work and function normally in day-to-day life.
While the respondent takes issue with the extent of the applicant’s described injuries and complications, he does acknowledge a significant post-surgery change in the applicant’s behaviour.
During the marriage, the applicant was employed as a bookkeeper, and was ultimately promoted to the level of a financial controller. In mid-October 2024, the applicant’s employment was terminated due to shortage of work. At the time of her termination, her annual salary was $83,267.00.
Until late 2025, the applicant received Ontario benefits of approximately $1000.00 per month (gross).
In December 2025, the applicant obtained new employment as a cost analyst with a new company earning $75,000.00 per year with an annual car allowance of $5000.00 per year.
The applicant’s probationary employment period recently ended, and she is now currently employed on a full-time basis earning the compensation set out above.
The respondent has been employed as a police officer with Toronto Police Service (“TPS”) since 2013.
Historically, the respondent earned the higher income between the parties: $230,349.00 in 2023 and $358,864.85.00 in 2024. Those income figures consisted of a base salary of approximately $125,000.00, together with additional compensation for earned overtime through paid duties (security detail, off-duty traffic, etc.) and court attendances.
Traditionally, the respondent’s overtime opportunities were neither guaranteed nor consistent, which accounted for the fluctuation in his annual income.
The applicant alleges that on November 9, 2025 she was physically assaulted by the respondent in the matrimonial home. The applicant immediately reported the alleged assault to TPS, which led to the respondent being criminally charged for both the November 9, 2025 incident, and alleged historical incidents.
As a result of the criminal charges laid against the respondent as a result of the applicant’s allegations, TPS suspended the respondent from all duties as a police officer. The respondent is currently prohibited from conducting any and all police work including regular duty, overtime, paid duties or court attendances during his suspension.
The respondent is still entitled to his base salary for 2026, which totals $126,894.00.
The respondent has no other source of income, and his reinstatement is dependent upon the outcome of the criminal proceedings which are presently in their infancy.

8The applicant proposes three different options of incomes for the parties for the purpose of calculating interim spousal support:

(a) using the respondent’s 2025 annual income of $195,407.00, and the applicant’s 2025 annual income of $25,779.00;

(b) using the respondent’s average income for the 2023-2025 income tax years of $261,540.00 and the applicant’s 2025 annual income of $25,779.00; or,

(c) using the respondent’s average income for the 2023-2025 income tax years (as set out above) and the applicant’s new 2026 annual income of $75,000.00.

Issues to be Decided

9The following issues are to be decided by this Court on the applicant’s motion:

(a) is the applicant entitled to interim spousal support at this stage of the proceeding?

(b) if the answer to (a) is “yes”, what is the respondent’s income to be used for the calculation of interim child and/or spousal support?

(c) if the answer to (a) is “yes”, what is the applicant’s income to be used for the calculation of interim child and/or spousal support?

Issue #1 Is the applicant entitled to interim spousal support at this stage of the proceeding?

10While the respondent took the position in his affidavit that the applicant’s request for spousal support was premature and unsupported by any urgent financial need, a review of the applicant’s sworn financial statements discloses that while her monthly expenses have not significantly increased over the last year, she has depleted her savings in order to meet those expenses.

11The applicant’s entitlement to spousal support was not strenuously opposed by the respondent during argument of the applicant’s motion. Much of the hearing was spent on the issues of the parties’ respective incomes for the calculation of interim child and/or spousal support, as the applicant agrees that any interim spousal support ordered payable at this time should be set off against the child support to be paid by her.

12On motions seeking interim spousal support, means and ability take on significance and the need to achieve self-sufficiency is of less importance. The party seeking interim spousal support bears the onus of establishing that there is a triable (i.e. prima facie) case with respect to both entitlement and quantum.

13As held by the Court of Appeal in Racco v. Racco 2014 ONCA 330, formulating an appropriate spousal support award is a highly individual and discretionary exercise that requires the Court to carefully balance the numerous support objectives and factors set out in the Divorce Act, R.S.C. 1985 c.3 in the context of the particular facts of the case before the Court.

14In Kowalski v. Grant 2007 MBQB 235, the Court set out the following principles in dealing with temporary spousal support motions:

Interim support is to provide income for dependent spouses from the time the proceedings are instituted until trial.
The Court need not conduct a complete inquiry into all aspects and details to determine what extent either party suffered economic advantage or disadvantage as a result of the relationship. That task is to be left to the trial judge.
Interim support is a holding order to maintain the accustomed lifestyle if possible pending final disposition as long as the claimant is able to present a triable case for economic disadvantage.

15The parties have been together for effectively eighteen years, although were only married (the second time) for fifteen years leading up to their recent separation. This was not a short-term marriage.

16Prior to recent events, the record discloses that there is an arguable case to support the applicant being the primary caregiver for the parties’ two children during the marriage. No support has been paid by either party since their separation.

17An order for interim spousal support will provide the applicant with the ability to meet her expenses until the matrimonial home is sold (upon which both parties apparently agree), as she has been incurring and paying those expenses without much assistance from the respondent since separation.

18As stated, while the respondent did not concede the applicant’s entitlement to interim spousal support, he did not strenuously object to same. This was an understandable position, as I find that on interim and without prejudice basis that the applicant is entitled to spousal support on both a compensatory and needs basis.

Issue #2 If the answer to (a) is “yes”, what is the respondent’s income to be used for the calculation of interim child and/or spousal support?

19The record before this Court is clear that the respondent is unable to earn anything over and above his 2026 base salary as a result of the criminal charges laid against him by the applicant. As the criminal proceedings are at a very early stage, barring a plea agreement or withdrawal of the criminal charges, the respondent’s suspension from employment will likely last for the balance of 2026 and beyond.

20The applicant takes the position that this Court should impute income to the respondent based upon his 2025 income, or an average of his income over the past three years. In support of her position, she relies upon the decision of Rogers v. Rogers 2013 ONSC 1997, and in particular the finding by Justice Pazaratz therein that “where unemployment or under-employment is created by the payor’s action or misconduct, support obligations should not be reduced or cancelled.”. In other words, the respondent’s current reduced employment is due to him “being the author of his own misfortune”.

21In Rogers, the husband sought an order seeking to retroactively reduce his child support obligations due to, inter alia, his loss of employment in previous years when child support was payable. Justice Pazaratz found as a fact that the reason for the husband losing his job was because he had committed criminal acts and was incarcerated for that criminal conduct. Once the husband was released from jail, he could not earn employment income at the levels before his incarceration. As held by Justice Pazaratz:

“I find the Applicant is solely responsible for the financial difficulties he now submits as the basis for significantly reducing his support obligations. His unemployment (and eventual underemployment) did not arise through mix-up, honest mistake, bad luck, or even isolated error in judgment. The Applicant knowingly and intentionally made very bad decisions. He broke the law -- over and over again. His choices have resulted in unquestionably painful consequences. But why should the Respondent and her children share any portion of that pain? Why should a support recipient suffer from a payor’s misconduct?”

22I do not find the Rogers decision to be instructive on the applicant’s motion before this Court The respondent has been criminally charged, but is obviously entitled to the presumption of innocence and is yet to be convicted by a judge or jury.

23Justice Pazaratz found Rogers that by intentionally failing to obey the law on several occasions, it did not lie in the husband’s mouth to then complain about the consequential reduction in his employment income.

24On the motion before this Court, the respondent has been criminally charged, but obviously not yet convicted. He cannot be held to have intentionally under-employed himself at this stage. If the respondent could return to full time work at TPS, he would. But the criminal charges laid as a result of the applicant’s allegations clearly preclude that from happening at this time.

25I find the decision of Justice Fraser in McCarthy v. Northrup 2024 ONSC 7078 to be of greater assistance. In McCarthy, the husband sought unsupervised parenting time with the parties’ two children on alternating weekends. The wife opposed the husband’s request, and brought a cross-motion asking for an order imputing income to the husband for the purpose of determining his ongoing child support obligations. The husband had been criminally charged, but was released on bail pending the disposition of the criminal proceedings brought against him. The husband had been gainfully employed as an accountant with a large firm, but his employment had been terminated as a result of the criminal charges.

26The Court’s analysis of whether a party is intentionally unemployed or under-employed is primarily based upon an assessment of whether the decision to remain unemployed or under-employed is a deliberate one. As held by Justice Fraser in McCarthy:

“In determining whether a party is intentionally under-employed or unemployed, the court should consider the party's capacity to earn income in light of their age, education, health, work history, the availability of work that is within the scope of the party's capabilities and the amount of income that the party could reasonably earn if they worked to capacity: Drygala v. Pauli at para. 40.

The use of the word ‘intentionally’ in Section 19(1)(a) highlights that the provision does not apply to situations that are beyond the party's control. Rather, the word "intentionally" makes it clear that the section does not apply to situations in which, through no fault or act of their own, spouses are laid off, terminated or given reduced hours of work.

‘Intentionally’ means a voluntary act. The parent required to pay is intentionally under-employed if that parent chooses to earn less than they are capable of earning. A parent is intentionally unemployed when they choose not to work when capable of earning an income: Drygala v. Pauli at paras 25-26 & 28.

In this case, the evidence is not in dispute concerning Northrup’s unemployment and the reasons for that unemployment. The uncontroverted evidence is that Northrup was terminated solely because of his criminal charges. He disputes those charges, and he has plead ‘not guilty’ to those charges.

Northrup’s criminal charges have not yet resolved, and he has yet to be given a trial date.

Northrup’s evidence is that he is therefore largely unemployable at this time.

I am being asked to conclude that income should be imputed to Northrup on an interim motion with very scanty evidence on the issue. It is clear that his existing employer was unwilling to continue to employ him while the charges laid against him were outstanding. I think it is a great leap of faith to believe other employer’s would readily employ him while charges of this nature are outstanding.

I therefore accept Northrup’s claim that he is unemployable for the most part pending the determination of his criminal charges.

However, for the purpose of this motion, I recognize that is a matter of pure conjecture not supported by evidence. That stated, McCarthy has not provided any evidentiary basis to counter Northrup’s evidence.”

27I apply the same logic as Justice Fraser did in McCarthy. There is no guesswork required, as the Court is aware of the respondent’s current annual income which will last into the foreseeable future. TPS’ decision to suspend the respondent understandable, foreseeable and uncontroverted. While the respondent may be ultimately found to be criminally responsible for the actions complained of by the applicant, at this stage I am unable to find that he deliberately sought to under-employ himself.

28Accordingly, I find that for the purpose of calculating interim child and/or spousal support, the respondent’s income shall be $126,894,00.

Issue #3 If the answer to (a) is “yes”, what is the applicant’s income to be used for the calculation of interim child and/or spousal support?

29There is also no guesswork when it comes to the applicant’s current, full-time employment income. As stated, her probationary period ended merely days ago, and she is now employed on a full-time basis. The respondent thus asks this Court to use the applicant’s current $75,000.00 compensation for the purpose of calculating interim and/or child and spousal support.

30While I agree with the respondent that the applicant is technically now employed on a full-time basis, she is just over three months into her new job after taking significant time off to deal with the unfortunate consequences of her failed breast augmentation surgery, along with the emotional and physical impact of an assault allegedly carried out by the respondent.

31The respondent’s 2026 annual income is virtually guaranteed. However, I cannot say the same for the applicant. In the circumstances of this case, I am not prepared to use the $75,000.00 figure for the purpose of calculating interim child and/or spousal support. In my view, a fair and reasonable result at this interim stage is to discount the $75,000.00 figure and allow for some of the inherent risks and variables associated with the continuation of the applicant’s employment.

32I am thus imputing the applicant with current annual income of $45,000.00 per annum for the purpose of calculating interim child and/or spousal support. This figure represents an approximate 40 percent discount in favour of the applicant which I find to be appropriate in the circumstances given the exigencies set out above.

33Using the parties’ employment figures as found by this Court, as discussed with counsel for the parties at the conclusion of the hearing, I would ask them to calculate the interim and without prejudice spousal support owing by the respondent to the applicant, along with the child support owing by the applicant to the respondent.

34All support shall be payable on an interim and without prejudice basis commencing May 1, 2026. I would ask counsel for the parties to file a draft order for my review and signature care of my assistant Harleen Purewal at harleen.purewal@ontario.ca.

35If counsel run into any issues in finalizing the calculations, they may contact the Family Trial Office to arrange a 9:30 am Zoom attendance before me to finalize the draft Order.

Costs

36I understand from counsel for the parties that offers to settle were exchanged between them in advance of the hearing of the applicant’s motion. If the parties cannot agree upon the disposition of costs of the applicant’s motion, they may serve and file written costs submissions limited to no more than five pages including a Costs Outline, in accordance with the following schedule:

(a) the applicant’s costs submissions to be served and filed within 10 business days of the release of this Endorsement; and

(b) the respondent’s costs submission to be served and filed within 10 business days of the receipt of the applicant’s costs submissions.

Diamond J.

Released: April 8, 2026

CITATION: Antal v. Antal, 2026 ONSC 2027

COURT FILE NO.: FS-25-00050326-0000

DATE: 20260408

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

JOVANKA ANNE ANTAL

Applicant

– and –

BOJAN ANTAL

Respondent

ENDORSEMENT

Diamond J.

Released: April 8, 2026

Antal v. Antal, 2026 ONSC 2027

Case Summary

Overview

Summary of Relevant Facts