Watson v. Zita, 2026 ONSC 2466

Court File and Parties

Citation: Watson v. Zita, 2026 ONSC 2466 Court File No.: FS-25-31-0000 Date: 2026-04-24 Superior Court of Justice - Ontario

Re: Christina Ashley Watson, applicant And: Dustin Zita, respondent

Before: Kurz J.

Counsel: David Sherr, for the applicant

Heard: April 22, 2026

ENDORSEMENT

Introduction

1On April 15, 2026, I struck Mr. Zita’s Answer. As a result, this proceeding continued as an uncontested trial. This is the continuation of that trial. I adjourned it to today to allow the Applicant to provide further evidence in support of her claim that income be imputed to the Respondent. I have now reviewed that evidence. In doing so, I have ignored the hearsay evidence offered regarding the Respondent’s mother’s inadvertent text to the Applicant regarding the Respondent’s work.

2By way of brief background, as set out in my April 15, 2026 endorsement:

1. The mother of the child, J.Z., born August 11, 2015 (the “child”) died on January 28, 2024;
2. The Applicant is the child’s maternal aunt. She has been the child’s primary caregiver since January 2023 and has been closely involved in caring for the child, with the assistance of the maternal grandparents, for most of the child’s life;
3. The Respondent has conceded primary parenting of the child to the Applicant by way of the consent order of Chang J. of February 10, 2026;
4. The uncontested evidence which I have before me sets out that Mr. Zita has failed to provide any financial support for the child since February 2023.

3The Applicant is clearly entitled to child support for the child. The only issue is the quantum of that support. Within that issue, I have to determine the Respondent’s income for support purposes and whether I should impute income to him.

Determination of the Respondent’s Income

4The Respondent has produced notices of assessment for the years 2022 – 2024, which set out his income as follows:

a. 2022: $24,589 b. 2023: $32,879 c. 2024: $21,667

5The Respondent has also previously indicated that he is in receipt of Ontario Works benefits. He has produced income statements from Ontario Works, dated March 21, 2025 and May 30, 2025. He has produced no further direct income disclosure, other than a May 29, 2029 Form 13 sworn financial statement. In that document, he deposed that he had been unemployed since February 2025 and was in receipt of Ontario Works benefits. He stated that his income was only $700/mo.

6The Applicant does not accept the Respondent‘s claims that his income is and has been below the minimum wage standard. Her most recent affidavit offers the following evidence in support of that stance:

a. On August 21, 2024 the Respondent wrote to the child, to tell him that he had a new job and was working from 8 a.m. to 8 p.m. b. On February 7, 2025 the Respondent represented to the Applicant by text message that he had work the next morning. I note that this was the same month in which he claimed that his sole source of income was Ontario Works benefits. c. On May 2, 2025 the Respondent represented to the Applicant that he had been working for the past several months. d. On July 2, 2025 the Respondent asked to see the child at 6 p.m. because, he said, he was busy from 9 to 5, claiming that he had a new job. e. On or about August 18, 2025, the Respondent represented to the Applicant that he was working in landscaping and that he would start making financial contributions towards the child. f. In or about March, 2026, the Applicant took a screenshot from the website, “roomies.ca”. The screenshot showed that the Respondent had posted that he was looking for accommodations. The post represents his budget to be $2,300 per month. The Applicant adds that this post is now marked as inactive.

Legal Authorities

7The jurisdiction to impute income to a support payor is found in s. 19(1) of the Child Support Guidelines, O. Reg. 391/97 (the “Guidelines”). The portions of that provision which are relevant to this proceeding are the following:

19. (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;

(f) the parent or spouse has failed to provide income information when under a legal obligation to do so;

8In Kohli v. Thom, 2025 ONCA 200, Coroza and Sossin JJ.A., writing for the Court of Appeal of Ontario stated at para. 108 that the decision to impute income as part of the calculation of support is a discretionary one. That discretion is only limited by the need for “some evidentiary basis for the amount of income imputed”.¹

9The onus rests on the party seeking to impute income to the other party to establish that the other party is intentionally unemployed or under-employed. The person requesting an imputation of income must establish an evidentiary basis upon which this finding can be made: Thom, at para. 111.²

10In Thom, the court cited the three-questions to be asked by a court requested to impute income to a support payor on the basis of intentional unemployment or under-employment, first set out by the Ontario Court of Appeal at para. 23 of Drygala v. Pauli, cited above, as follows:

1. Is the party intentionally under-employed or unemployed?
2. If so, is the intentional under-employment or unemployment required by virtue of his or her reasonable educational needs, the needs of the child or reasonable health needs?
3. If not, what income is appropriately imputed?

11In Majlesi v. Damanpak-Rizi, 2026 ONCJ 81, at para. 32 Sherr J. summarized the following factors which apply when a party seeks to impute income to a payor . In that case the payor spouse claimed an inability to pay support as a result of a disability arising from a motor vehicle accident which left him in receipt of the minimal payments offered to Ontario Disability Support Plan (“ODSP”) recipients, as follows:

a) The person requesting an imputation of income must establish an evidentiary basis upon which this finding can be made. See: Homsi v. Zaya, 2009 ONCA 322, [2009] O.J. No. 1552. (Ont. C.A.). However, in Graham v. Bruto, 2008 ONCA 260, the court inferred that the failure of the payor to properly disclose would mitigate the obligation of the recipient to provide an evidentiary basis to impute income.

b) Once a party seeking the imputation of income presents the evidentiary basis suggesting a prima facie case, the onus shifts to the individual seeking to defend the income position they are taking. See: Lo v. Lo, 2011 ONSC 7663; Charron v. Carriere, 2016 ONSC 4719.

c) The receipt of ODSP or Workplace Safety and Insurance Board benefits is not sufficient proof of one's inability to work for support purposes. See: Tyrrell v. Tyrrell 2017 ONSC 6499 (SCJ). The court cannot take judicial notice of any eligibility requirements for ODSP. Nor can it delegate the important and complex determinations of employability and income earning capacity to unknown bureaucrats applying unknown evidence to unknown criteria. See: Abumatar v. Hamda, 2021 ONSC 2165; Bougataya v. Turkmen, 2023 ONCJ 341.

d) The court can also impute income where the evidence respecting income is not credible for any other reason. See: Heard v. Heard, 2014 ONCA 196 (C.A.), at paras. 33-35; Gostevskikh v. Gostevskikh, 2018 BCSC 1441 (S.C.); M.A.B. v. M.G.C., 2022 ONSC 7207.

e) The court may impute income where it finds that a party has hidden or misrepresented relevant information respecting their income to the other party or to the authorities. This includes cases where the evidence indicates that a party earns cash income that they do not declare for income tax purposes. See: Kinsella v. Mills, 2020 ONSC 4785; Prillo v. Homer, 2023 ONCJ 8.

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. See: Szitas v. Szitas, 2012 ONSC 1548; Woofenden v. Woofenden, 2018 ONSC 4583.

g) A person's lifestyle can provide the basis for imputing income. See: Aitken v. Aitken [2003] O.J. No. 2780 (SCJ); Jonas v. Jonas [2002] O.J. No. 2117 (SCJ); Price v. Reid, 2013 ONCJ 373.

h) The payor must prove that any medical excuse for being underemployed is reasonable. See: Rilli v. Rilli, 2006 34451 (ON SC), [2006] O.J. No. 4142 (SCJ.). Cogent medical evidence in the form of detailed medical opinion should be provided by the payor in order to satisfy the court that his/her reasonable health needs justify his/her decision not to work. See: Cook v. Burton 2005 1063 (ON SC), [2005] O.J. No. 190 (SCJ) and Stoangi v. Petersen 2006 24124 (ON SC), [2006] O.J. No. 2902 (SCJ).

i) In Davidson v. Patten, 2021 ONCJ 437, Justice Carole Curtis set out that a party resisting a claim for imputation of their income based on medical reasons should provide a medical report setting out at least the following information:

i. Diagnosis; ii. Prognosis; iii. Treatment plan (is there a treatment plan? And what is it?); iv. Compliance with the treatment plan; and v. Specific and detailed information connecting the medical condition to the ability to work (e.g.: this person cannot work at the pre-injury job; this person cannot work for three months; this person cannot work at physical labour; this person cannot return to work ever).

j) However, the failure to provide such evidence is not an absolute bar to a party resisting a claim for imputation of their income based on medical reasons. If the court believes the party's evidence about their medical impairments, that can be a sufficient basis not to impute income. There is a small segment of litigants who have legitimate medical issues, but who are too overwhelmed by the process to obtain the necessary medical evidence to corroborate it. Their medical issues are often the very reason they are overwhelmed and cannot produce this evidence. When the court finds this is happening, it is left to assess the credibility and reliability of the party's evidence. See: M.D. v. A.H., 2026 ONCJ 46.

k) Even if the court accepts that the party has health-related challenges that may impact their income earning capacity, it must consider the nature and extent of the impact and whether the party could work on a part-time basis or in a less demanding position. See: Bentley v. Bentley, 2009 CarswellOnt 562 (S.C.J.); Kinsella v. Mills, 2020 ONSC 4785.

Discussion

12The Applicant seeks to have the court impute income to the Respondent on various bases. She asserts that he has been surreptitiously working, even while in receipt of Ontario Works benefits. She points to his own evidence regarding work and the lifestyle he advertised in his online ad, seeking accommodations on a $2,300/mo. budget. At the very least, she asserts, he was earning a minimum wage of from 2023 onward.

13Minimum wage in Ontario was as follows:

• Oct 1, 2022 – Sep 30, 2023: $15.50 per hour
• Oct 1, 2023 – Sep 30, 2024: $16.55 per hour
• Oct 1, 2024 – Sep 30, 2025: $17.20 per hour
• Oct 1, 2025 – Sep 30, 2026: $17.60 per hour
• Oct 1, 2026 (Scheduled): $17.95 per hour.³

14I am willing to accept the Respondent’s income calculations for 2022 and 2023 as set out in his notices of assessment. However, from 2024 onward, when he suffered a steep income drop, of about 34%, I would require an explanation.

15That being said, I find that the Respondent’s income disclosure is inadequate (having only provided notices of assessment without further documentation requested by the Applicant to confirm his income, including Record(s) of Employment and pay stubs. Furthermore, he has provided no income disclosure since May 2025 despite this ongoing litigation. He has also failed to explain why he is eligible for and receiving benefits from Ontario Works.

16On March 6, 2026, I ordered the Respondent to provide the following disclosure to the Applicant by April 7, 2026:

a. An updated sworn Form 13 Financial Statement. b. For the years 2022, 2023, 2024, and 2025: i. Complete income tax returns with schedules including T4s; and ii. Notices of Assessment Reassessment. c. An updated resume. d. A list of employment contracts and job offers since 2022 and ongoing. e. All records of employment since 2022 and ongoing. f. All job applications from 2022 and ongoing g. All social assistance applications from 2022 and ongoing. h. A sworn statement and any and all evidence upon which the Respondent may rely (e.g. medical records) to explain any alleged inability to earn at least a minimum wage income.

17Most of that disclosure had been requested by the Applicant in a brief she served on the Respondent on August 29, 2025.

18The Respondent failed or refused to produce any of that disclosure. That is in part why I struck his pleadings on April 15, 2026.

19I find that income can be imputed to the Respondent on the grounds set out in s. 19(1) (f) or (f). I make that finding because:

1. He has failed to provide further and up-to-date income disclosure when requested to do so in August 2025 and when ordered to do so on March 6, 2026;
2. His correspondence with the Applicant set out above demonstrates that he was employed far more than he claimed, even when in receipt of Ontario Works benefits. He may be surreptitiously earning money “under the table” or otherwise.
3. His lifestyle, as demonstrated by the August 2025 ad for accommodations based on a $2,300/mo. budget, as set out above, undermines his claim that his sole source of income was $700 per month from Ontario Works.
4. If the Respondent is not earning at least a minimum wage, he has offered no evidence demonstrating why that is the case: e.g. medical records, job search records or any of the documentation which he was ordered to produce on March 6, 2026. If the Respondent has lost a job he has failed to provide his Record of Employment or other evidence of the reason for losing his employment.
5. The Respondent has provided no evidence that he is required to be unemployed or underemployed for reasons of health or education.

Support Calculations

20For 2023, I accept the Respondent’s income figure of $32,879. The Applicant calculates table support at $281/mo. for eleven months in 2023, for at total of $3,091.

21For the reasons set out above, beginning in 2024 and continuing onward, I am willing to impute income to the Respondent at a minimum wage level.

22For 2024, the Respondent’s imputed minimum wage income would be $16.55 per hour for the nine months between January and September and the $17.20 per hour for the remainder of the year. At 38 hours per week, for 52 weeks, I calculate that he should have earned $32,998.49 and paid $281.79/mo. or $3,381.48.

23For 2025, the Respondent’s imputed minimum wage income would be $17.20 per hour for the nine months between January and September and the $17.60 per hour for the remainder of the year. At 38 hours per week, for 52 weeks, I calculate that he should have earned $34,158.50 and paid $293.93/mo. for January – September 2025. Thereafter the child support tables were adjusted. In the result he should have paid $281.54 per month for three months. In total he should have paid $2,645.37 + $844.62 for a total of $3,489.99.

24For 2026 onward, he continues to be required to pay $281.54. As of April 1, 2026, he owes $1,126.16.

25In total, I find that the Respondent owes the Applicant the following amounts of retroactive and retrospective table child support:

2023: $3,091 2024: $3,381.48 2025: $3,489.99 2026: $1,126.16

Total:$11,088.63 (as of and including April 2026)

26I order that he pay that amount to the Applicant.

27In addition, the Respondent shall pay table child support to the Applicant of $281.54/mo. on the first day of each month, commencing May 1, 2026 and continuing on the first day of each following month until further order.

Costs

28The Applicant seeks full recovery costs of this proceeding (which includes her request for sole parenting rights to the child, as requested in an offer to settle which the Respondent accepted just before the issue was to be argued) of $16,085.55. That amount is based on a counsel fee of $14,235 and HST of $1,850.55. That figure does not include a counsel fee for today.

29In support of her claim for full recovery costs, the Applicant refers to her complete success regarding sole parenting, which was the subject of her offer to settle, the 11th hour acceptance of that offer, the Respondent’s unreasonable behaviour throughout, including his refusal to immediately agree to her sole parenting in light of his inability to parent and her role with the child, his threats to take the child from her, his failure to provide her with proper disclosure, his breach of my disclosure order and his ultimate abandonment of this litigation.

30As the Ontario Court of Appeal for Ontario noted in Serra v. Serra, 2009 ONCA 105, [2009] O.J. No. 432 (Ont. C.A.), at para. 8:

Modern costs rules are designed to foster three fundamental purposes: (1) to partially indemnify successful litigants for the cost of litigation; (2) to encourage settlement; and (3) to discourage and sanction inappropriate behaviour by litigants: Fong v. Chan (1999), 1999 2052 (ON CA), 46 O.R. (3d) 330, at para. 22.

31A fourth purpose of those costs rules is to ensure that cases are dealt with justly: Mattina v. Mattina, 2018 ONCA 867, at para. 10.

32The centrality of reasonableness and proportionality in the determination of costs is articulated in r. 24(14), which reads as follows:

14 In setting the amount of costs in relation to a step in a case, the court may consider,

(a) the reasonableness and proportionality of the following factors, as applicable, as they relate to the importance and complexity of the issues in the step:

(i) Each party’s behaviour.

(ii) The time spent by each party.

(iii) Any written offers to settle, including offers that do not meet the conditions set out in subrule (12) or the requirements of rule 18.

(iv) Any legal fees, including the number of licensed representatives and their rates.

(v) Any expert witness fees, including the number of experts and their rates.

(vi) Any other expenses properly paid or payable; and

(b) any other relevant matter.

See also: Matina, at para. 10.

33In Boucher v. Public Accountants Council for the Province of Ontario, 2004 14579 (ON CA), [2004] O.J. No. 2634 (Ont. C.A.) ("Boucher"), at para. 24, the Court of Appeal for Ontario concluded that costs awards should reflect "what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties."

34While I agree with the Applicant that the Respondent’s conduct in the litigation was unreasonable, it does not amount to bad faith. But it does entitle the Applicant to enhanced costs.

35Here, the rates charged by Mr. Sharr, $450 per hour on a full recovery basis are reasonable for a lawyer of his experience. There is also some reasonable expense for a clerk. I also note that the Applicant’s bill of costs does not include a counsel fee for today. Nor does he seek any disbursements. His bill of costs only includes full indemnity costs.

36Considering all of the factors set out above I find that costs, fixed at $13,000 plus HST of $1,690, for a total of $14,690 are fair, reasonable and proportional in the circumstances and so order. I find that 50% of the fees claimed relate to child support.

_____________________ Kurz J.

Footnotes

1. 1citing Monahan-Joudrey v. Joudrey, 2012 ONSC 5984, at para. 21; see also Homsi v. Zaya, 2009 ONCA 322, 65 R.F.L. (6th) 17, at paras. 27-28; and Staples v. Callender, 2010 NSCA 49, 85 R.F.L. (6th) 236, at paras. 21-22.
2. 2Citing Homsi v. Zaya, 2009 ONCA 322, at para. 28, which in turn cites Drygala v. Pauli (2002), 2002 41868 (ON CA), 61 O.R. (3d) 711 (Ont. C.A.).
3. 3See: https://news.ontario.ca/en/release/1001954/ontario-working-for-workers-by-raising-the-minimum-wage and https://www.ontario.ca/document/your-guide-employment-standards-act-0/minimum-wage#section-0 .