ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JENNIFER BISTRON
Applicant
– and –
PETER JOHN SONI
Respondent
Lindsay Karpetz, for the Applicant
Meghann Melito, for the Respondent
HEARD: January 21, 22, 23, 26, 27 and 29, 2026
Hood J.
REASONS FOR DECISION
Background
1The parties met in 2020. There was no suggestion by either party that they were ever in a relationship of any permanence and they agree that they were not spouses. Their child was born on January 8, 2021. At the time of the trial their child had just turned 5 years old.
2They filed an agreed statement of facts at trial. They agreed, among other things, that:
Their child had been in an equal parenting regime since January 2022 and is both parties’ only child.
They signed a Parenting Agreement on December 22, 2022 and have been substantially following it.
The parenting Agreement provides for a 2-2-3 schedule for their child and includes joint decision-making responsibility.
The applicant was on maternity leave in 2021.
The applicant’s line 15000 income in 2022 was $78,015, in 2023 was $96,469, in 2024 was $85,000, and in 2025 her annual salary was $85,000 (starting work on August 18, 2025 with LAR Limited).
In 2025 the applicant received termination pay of $42,500 representing salary, a further $15,000 in termination pay representing bonuses, and $20,000 in general damages, all from her former employer, Folio Interior Design Group.
The applicant receives a vehicle allowance of $800 per month from her new employer LAR Limited and has a car lease payment of $635/month having made a cash down payment of $11,660. Her vehicle is used for both personal use and work.
The respondent is a real estate agent and is the sole shareholder of his personal real estate corporation.
3Although not in the agreed statement of facts, the parties agree that in 2021, for her year of maternity leave, the applicant’s income for support purposes was $29,155. They also agree that in 2022 the applicant’s income for support purposes was $78,015. They disagree as to the applicant’s income for support purposes for 2023, 2024 and 2025, despite her being a T4 employee. They disagree as to the respondent’s income for support purposes for 2021 to 2025 inclusive.
4The incomes submitted by the parties at the conclusion of the trial are as set out below:
| Applicant’s Position | Respondent’s Position | |||
|---|---|---|---|---|
| App Income | Resp Income | App Income | Resp Income | |
| 2021 | 29,155 | 256,877 | 29,155 | 158,000 |
| 2022 | 78,015 | 110,326 | 78,015 | 57,000 |
| 2023 | 96,469 | 107,233 | 119,810 | 61,000 |
| 2024 | 85,000 | 140,941 | 105,392 | 67,074 |
| 2025 | 133,380 | 111,747 | 143,090 | 77,510 |
5Although not in the agreed statement of facts, they also agree that for the first six months of 2021 their child was primarily in the applicant’s care and that she is entitled to full child support, although as already indicated they do not agree on the amount payable, due to their disagreement over the respondent’s income. They also agree that from July 2021 going forward child support is to be set off due to a joint parenting arrangement, but again do not agree as to what was the appropriate amount of child support and the amount of set off due to their disagreement over incomes.
6The applicant also submits that a straight set off of child support creates an unfair result and that the financial strength of each household must be looked at and the child support needs to be adjusted so that their child has the same standard of living in both households.
7I have to determine both parties incomes for the purpose of child support.
Applicant’s Income
8The applicant has been a T4 employee for all of the years in issue. In 2021 she was on maternity leave and received employment insurance. The parties agree that her income for 2021 was $29,155. The parties also agree that in 2022 she earned $78,015 while working for PAC Building Group.
9In February 2023 she began to work for Folio Interiors. She worked at Folio until May 9, 2025 having been terminated at the end of April 2025. In addition to her salary, she was provided with a company car and a gas card. Folio also covered her car insurance. While at PAC Building she also was provided with a company vehicle. Despite this, the respondent is not seeking to impute any income to her for the use of the vehicle in 2022.
10The difference between the parties relates to her use of the vehicle in 2023 and 2024 and other benefits while employed at Folio and the general damages payment of $20,000 received by her in 2025 from her, at that point, former employer Folio. Folio also paid her phone bills, although the phone was her personal phone. Folio also paid for her car insurance and gave her a gas card.
Personal Benefits from Employment
11The respondent argues that the personal benefits received from Folio in 2023 and 2024 amounted to $1,183 per month for an annual total of $14,200, which when grossed up to reflect this amount as income, resulted in a higher income for child support purposes of $119,810 in 2023 and $105,392 in 2024.
12While I agree that the use of the company car, the payment of car insurance, the use of a gas card, and the payment of her phone bill were personal benefits that could possibly be added to her income for 2023 and 2024 and then grossed up to reflect these payments as income, I am not prepared to accept the respondent’s submissions that the personal benefit can be estimated to be $1,183 per month or $14,200 per year.
13The respondent says in argument that this is based upon the expenses as shown in the applicant’s financial statement sworn December 22, 2025. Not only is this for a different year than the years in question but no explanation was ever given by the respondent as to how the $1,183 per month was actually calculated. Nor was there any evidence as to what percentage use of the vehicle was personal or percentage use of the phone was personal. Nor were the applicant’s tax returns for 2023 and 2024 put into evidence before me to see whether the applicant already treated the benefits from her employer Folio in some manner or how. Nor was she asked anything about this in chief or in cross-examination, other than an acknowledgment by her in cross-examination that both of their incomes should be grossed up for child support purposes and that some of her personal expenses had been paid for by her employers PAC and Folio. She was not asked how her acknowledgement impacted her incomes for 2023 and 2024.
14I am not prepared to gross up the applicant’s income for 2023 and 2024. Doing so would be entirely speculative on my part. If the respondent wanted the applicant’s income for 2023 and 2024 to be found to be more than her line 15000 income, he should have provided sufficient evidence to prove it.
General Damages Award in 2025
15The $20,000 received in 2025 was a general damages payment from Folio relating to the applicant’s claim that she was constructively dismissed by Folio and sexually harassed by the principal of Folio.
16The applicant admits that she received this money. She used the money to partially pay for her car, to cover her car insurance for a year, to buy a laptop, to pay for some of the legal expenses she had incurred and for other living purposes.
17The applicant submitted that this general damages payment was not taxable. However, whether the $20,000 is taxable is not the issue for the purposes of this trial. The issue is whether this amount should be included in her income for child support purposes.
18Both counsel assured me in argument that there was no reported case dealing with the question of whether general damages had been found to be income for child support purposes. The closest case that was found by the respondent was Mobin v. Stephens, 2013 ONCJ 53, where the court dealt with a payment of $175,000 in settlement of a claim for copyright infringement. There the recipient of the settlement funds argued that this was not income for tax purposes and accordingly should not be considered for support.
19The court however held that that was not the correct issue and what had to be looked at was whether the settlement funds were income under the Federal Child Support Guidelines, SOR/97-175 (“child support guidelines”). Likening the settlement amount to workers’ compensation benefits or payments received from an annuity purchased with settlement funds as part of a structured settlement, the court in Mobin held the settlement funds to be income for the purposes of child support: paras. 58-65.
20Income under the child support guidelines is wider than income under the Income Tax Act. If one of the objectives of the guidelines is to establish a fair standard of support that ensures that children benefit from the financial means of both parents then in my view this payment to the applicant should be considered as income for child support purposes: see child support guidelines, s. 17. The applicant utilized the settlement funds in a variety of ways to benefit both herself and her child. She utilized the funds as if they were part of her income. While it is a non-recurring amount, it only applies to 2025 and is not being used to average up incomes from other years. If the applicant had used the funds to buy an investment vehicle to generate ongoing income then perhaps it would not form part of her income for 2025. But as stated in Marinangeli v. Marinangeli (2003), 66 O.R. 9 (3d) 40 (C.A.) at para. 30 children “should benefit from a sudden increase in lifestyle and money available to the family.”
Conclusion on Applicant’s Income
21For the years in issue between the parties, the applicant’s income for child support purposes is as follows:
2021 $29,155
2022 $78,015
2023 $96,469
2024 $85,000
2025 $143,090
Respondent’s Income
22As mentioned previously, the respondent is a real estate agent and is the sole shareholder of his personal real estate corporation.
23The respondent retained Mr. McIntyre of ap Valuations Limited to analyze his income for support purposes for 2021 to 2023. No valuation was done for 2024 or 2025. After hearing evidence as to Mr. McIntyre’s expertise and experience and with the agreement of the parties I found him to be qualified as an expert in income determination in the context of family law. The applicant retained Mr. Feldman of SLF Financial Services Inc. to provide a critique of Mr. McIntyre’s report. After hearing evidence as to Mr. Feldman’s expertise and experience, and with the agreement of the parties I found him to be qualified as an expert in income determination for family law purposes and in forensic accounting. Mr. Feldman confirmed in his evidence and in his report that he was not retained to calculate or to conclude what income was available to the respondent for support purposes.
24Over and above the applicant’s submissions that the report from Mr. McIntyre did not properly reflect the respondent’s income for support purposes for 2021 to 2023, the applicant raised issues with respect to RRSP withdrawals by the respondent in a number of years, and whether the respondent should be imputed with additional income in 2024 and 2025 for “foregone commission” of $46,500 and $1,500 respectively.
25Both parties and the experts agreed that the issue of the inclusion of RRSP withdrawals made by the respondent as being part of his income was for the court’s determination. And neither expert commented upon the “foregone commissions” as this was an issue that occurred in years not considered in their reports.
RRSP Withdrawals
26The respondent withdrew from his RRSP in 2021, 2022, and 2023 in the amounts of $29,817, $24,999, and $5,000 respectively. In every year he then re-deposited almost equivalent amounts one to two months later.
27As explained by the respondent, he had invested in a pre-construction condominium and he had scheduled deposit payments coming due. He was waiting for some commission payments to be paid to him in order to pay the scheduled deposits but was concerned that they would not be paid in time and that this would mean that he would default on his deposit payments. In order to avoid any default he withdrew funds from his RRSP account, in order to make the deposit payments which resulted in withholding taxes. As it turned out, he ended up receiving the commission payments in time which he used for his required deposit payments and he then re-deposited the amount of the RRSP withdrawals back into his RRSP account. He testified, and was not seriously challenged, that none of the RRSP withdrawals were used for his living expenses.
28The applicant argues that the respondent has not met his burden to exclude these withdrawals. She argues that he could have easily withdrawn the needed funds from his corporate bank account as it had sufficient funds to do so. The respondent did not disagree when examined on this. He said that he was not financially sophisticated and that he used his RRSP account, which was a personal account, as the necessary deposit payments were part of a personal investment, rather than his corporate bank account, containing corporate funds.
29Subject to ss. 17-20 of the child support guidelines, s. 16 provides that income for child support purposes includes the sources of income set out under the heading of “Total Income” on the T1 tax form. RRSP income is included in the T1 tax form so presumptively these RRSP withdrawals were part of the respondent’s income.
30However, the inclusion of RRSP accounts is not mandatory and the court has the discretion to exclude RRSP proceeds from income: see Ludmer v. Ludmer, 2014 ONCA 827, 52 R.F.L. (7th) 17 at paras. 22-25; F.F. v. G.W., 2010 ONSC 3305 at paras. 19 and 21. In the situation before me, where the withdrawals were soon re-deposited in almost the same amounts and were not used for living expenses, I do not think it appropriate to include the RRSP withdrawals as income. The funds were placed into a savings account to be used for the required deposits. When his plans changed, the funds went back into his RRSP. The funds were not used in the interim nor did they generate any income. In my view these RRSP withdrawals should not be included as part of Mr. Soni’s financial capacity for the purposes of support.
Business Income
31Although at the opening of the trial the applicant argued that income should be imputed to the respondent based upon his involvement in his father’s mortgage brokerage business, this was not pursued in closing, I assume due to the evidence that had been presented at trial.
32The respondent’s father, Mr. Paul Soni, who was called to give evidence by the applicant, testified that although the respondent had been listed as a agent with his brokerage, Money Solutions Inc., the respondent had never been active as a mortgage broker, never took an active role in the company and never earned anything for the company and was never paid anything by the company. He also testified that it was his practice not to bring family members into his business.
33His evidence was that due to the health issues that he was experiencing and the various medical procedures he was going through he wanted someone there who he could trust to shut down the business in case anything happened to him and he could no longer carry on with his mortgage brokerage business. He asked the respondent to do this and in order to be in a position to shut down the business the respondent needed a license.
34The Respondent’s father made it clear that the respondent was not making any money from his mortgage brokerage business and that he never would. He was unchallenged in his evidence.
Foregone Commission
35The next issue between the parties is that of “foregone commission”. The respondent acted for his new wife, Ms. Sapna Gothi, with respect to two transactions – the purchase of 69 Forest Avenue, Mississauga in June 2024 and the leasing of a condominium owned by her in November 2025.
36As Ms. Gothi testified, it was the respondent’s choice not to charge her a commission on both transactions, that there was nothing which prevented him from taking a commission on both, and that she benefited by him not charging a commission.
37Royal LePage, the respondent’s real estate brokerage, allows its agents to assist what it calls “family and friends” in real estate transactions without charging them any commission. However, the agent is still charged an administration fee by the brokerage. The evidence from the brokerage was that this would have been $1500 plus HST for the purchase. There was no similar evidence with respect to the rental, but “personal rentals” were, according to the Royal LePage records produced, charged a fee of $100 plus HST.
38However, just because Royal LePage allows agents in certain circumstances to forego commission does not mean that for the purposes of child support foregone commission should not count towards income. Both parties advised that they were unable to find a case where the issue of foregone commission had been considered by a court.
39The applicant’s argument is that commission income should be imputed to the respondent, not to be punitive, but simply from the proposition that the respondent earned less than he was capable of earning. Here any commission would have been paid by the seller. Typically, the commission paid is then split between the agents for the seller and buyer. The Mississauga property was sold for $1,860,000. The respondent said the listing had a 2.5 % commission for the buyer agent so that Royal LePage would have received $45,000. But he also said there was no negotiation of the commission, implying that it could possibly have been reduced. This was completely speculative. In cross-examination he agreed that at 2.5% the gross commission would have been $46,500 not $45,000. He was not asked what he would have received from this amount. With respect to the rental of her condominium, Ms. Gothi testified that the foregone commission for the lease transaction was half the month’s rent plus HST. The rent was $2925 so the commission would have been $1462.50 plus HST.
40Ms. Gothi said that she was the one who benefited from the non-payment of commission on these transactions. As to the rental property this is clear. She saved nearly $1500 which she would have had to pay to any other agent who assisted in renting her property. The amount of saving on the purchase is less clear. She testified that the foregone commission was negotiated into the transaction to lower the purchase price. Since the seller did not have to pay as much commission she did not have to pay as much to purchase 69 Forrest Avenue. What the price would have been if the seller had to pay the Royal LePage commission is unknown.
41Imputing income is used to ensure that parents meet their obligation to support their children. A parent in meeting this obligation must earn what he or she is capable of earning: see Drygala v. Pauli (2002), 2002 41868 (ON CA), 61 O.R. (3d) 711 (C.A.), at para. 32.
42Under normal circumstances the respondent would have received a commission payment if acting for the purchaser of a property or if acting for a lessor of a property. The only reason that the respondent did not receive a commission in relation to the two properties is that he chose not to do so in order to provide some benefit to his new wife Ms. Gothi.
43From the rental commission of $1463 there would have been deducted a percentage by the brokerage. It is typically 10% or $146, resulting in a net commission of $1,317. While the respondent suggested that the commission on the purchase of the home could have been negotiated down, this was merely speculative. At a price of $1,860,000 and with a commission of 2.5 % Royal LePage would have been paid $46,500. From this the brokerage, according to the Royal LePage Signature Realty Tax Worksheets, typically takes 10%, leaving a net commission of $41,850. There were some instances where more than 10% was taken by the brokerage but no explanation was given as to why, and no questions were asked about this.
44At the year-end reconciliation with the brokerage the respondent was then charged expenses by the brokerage for a variety of items described in the tax worksheets as for example courier costs, computer expense, franchise fee, transaction fee, and a consulting fee. No explanation was given as to how these amounts were calculated and no questions were asked about them. These expenses from the tax worksheets seemed to bear no relationship to the commission earned and were based on something else.
45I find that the foregone commission on the sale in 2024 was $41,850 and on the lease in 2025 was $1317. Ms. Gothi testified that she did not financially support the respondent’s child. As a result, any possible benefit to her from the foregone commission did not benefit the child. By agreeing to forego commission that he would otherwise have been entitled to, the respondent did not earn all that he was capable of earning. Accordingly, I impute as additional income to the respondent $41,850 for 2024 and $1317 for 2025.
46Both of these amounts are to be added to the respondent’s income for the years in question.
Sales Income
47In 2024 and 2025 the respondent also had a job as a commissioned salesman for Pulse Medical selling medical devices from October 2024 to June 2025 when Pulse Medical terminated his contract for not meeting sales targets. He was able to work from his home as this job mostly involved making telephone calls. In 2024 his T4A from Pulse Medical showed commission income of $6,074. By the time of the trial he had not received his 2025 T4A. However, based upon his bank statements he received payments from Pulse Medical in 2025 totalling $18,653. These amounts included HST. When HST is backed out the commission income from Pulse Medical is $16,510.
48The respondent conceded that he had no business-related expenses associated with the income from Pulse Medical and, in his Spousal Support Advisory Guidelines (Ottawa: Department of Justice Canada, July 2008) (“SSAG”) calculations, included the amounts of $6,074 and $16,510 as part of his income for 2024 and 2025. I accept these amounts as his income from Pulse Medical for 2024 and 2025.
Expenses Paid from the Business Account
49As mentioned already the respondent retained Mr. McIntyre of ap Valuation Limited to value his income as a real estate agent for 2021, 2022, and 2023.
50Mr. McIntyre made adjustments to the respondent’s income in his tax returns by adding back certain discretionary and personal expenses which the respondent had deducted in arriving at his line 15000 income. For example, in 2021 and 2022 he added back advertising expenses which were shared with another realtor, and from 2021 to 2023 he added back 50% of the meal and entertainment expenses, 20% of his telephone and internet expenses, and 10% of his vehicle expenses. The percentages were based upon his professional judgment as to what normal expenses were for a real estate agent. He also added back a 25% allocation of rent and utilities which the respondent had deducted for the business use of his premises, again based upon his professional judgment. As there was no capital reinvestment in his corporation, Mr. McIntyre also attributed 100% of the corporate pre-tax income for the respondent’s personal real estate corporation to the respondent. This was again based upon his professional judgment.
51He concluded that the respondent’s income for support purposes for the years he reviewed, namely 2021 to 2023, leaving aside the issue if whether the RRSP withdrawals should be included in the respondent’s income, was $158,000, $57,000 and $61,000 respectively.
52Also, as mentioned previously, the applicant retained Mr. Feldman of SLF Financial Services Inc., not to value the respondent’s income but to critique the report of Mr. McIntyre.
53Other than agreeing that any personal expenses paid for by his personal corporation should be added back to the respondent’s income, as Mr. McIntyre had done, he did not agree or disagree with Mr. McIntyre’s conclusions as to income for support purposes and acknowledged in his testimony that a limited critique report like his could not fix an income amount.
54He stated that during a court-ordered meeting with Mr. McIntyre, he told him that he felt the expenses added back by Mr. McIntyre could be $10,000 to $15,000 higher than Mr. McIntyre’s figures. However, he acknowledged that he never identified any specific errors with Mr. McIntyre’s report or conclusion and could not remember what had caused this concern about the expenses.
55I was not persuaded by Mr. Feldman’s report or his evidence to find any issue with Mr. McIntyre’s report which would lead me to a conclusion different from Mr. McIntyre as to the respondent’s income as a realtor from 2021 to 2023.
56The applicant argued that the respondent failed to prove that his business expenses were legitimate and that Mr. McIntyre had made assumptions based upon unproven facts. In my view the respondent is not required to go through each and every receipt to prove that it was a legitimate expense. Mr. Pereira, who assisted the respondent in the preparation of his taxes, testified that if he saw anything questionable, he automatically deleted it as an expense. He created the general ledgers for the respondent’s corporation listing its expenses. He was not challenged in cross-examination over any specific expenses.
57Nor was the respondent questioned by the applicant over any of the expenses listed by him in the general ledgers.
58Nor was Mr. McIntyre questioned by the applicant over any of the expenses listed in the general ledgers. Mr. McIntyre applied his expertise in analyzing the ledgers and added back certain percentages. Mr. Feldman did not disagree with this approach.
59The respondent, through his evidence, that of Mr. Pereira, and the expert evidence of Mr. McIntyre, has satisfied me in relation to his expenses. I am not prepared to add a further $10,000 to $15,000 to the respondent’s income based upon the inconclusive evidence of Mr. Feldman.
60Based on all of the evidence I find the respondent’s income for support purposes to be $158,000 in 2021, $57,000 in 2022, and $61,000 in 2023.
Underemployment
61The applicant also argues that the respondent has been underemployed since 2021. The respondent’s evidence was that 2021, when he had a much higher income, was a banner year but in 2022 interest rates began to rise and that the real estate market, in his words, “dropped off a cliff.” The applicant in her evidence agreed that the real estate market took a downturn in 2022.
62The respondent has been a real estate agent since 2011 and other than his brief involvement with Pulse Medical has not worked at anything else. According to the respondent he works during the week and weekends, averaging 50 to 55 hours per week. Ms. Gothi testified that he typically works six days per week. He acknowledged that despite the hours he works that there are some months when he earns no commissions. While I do not put much reliance on the 2023 and 2024 sales awards that he received from Royal LePage, without there being more evidence or to what the awards mean or how the recipients are determined, I cannot find, as the applicant submits, that the respondent was and is earning less than he is capable of earning.
63The applicant had no evidence to suggest any underemployment. She referred to a website entitled Government of Canada Job Bank for Residential Real Estate in Ontario. It indicated that in 2025 the annual median income for a real estate agent in the Toronto Region was $57,600. If anything, this suggests that the respondent was not underemployed but was doing slightly better than most real estate agents in the Toronto area.
64The applicant submits that a $13,000 deposit into his Pay Pal account should be treated as income. I accept the respondent’s evidence that this was not income but was the return of an investment in cryptocurrency and that he actually took a loss on this investment.
65I am also not prepared to find that any money from the applicant’s mother given to the applicant or any money from the respondent’s parents or from any of his relatives should be considered as income for support purposes. I accept that any such amounts were either gifts or loans and need not be considered.
66The respondent did not have a report done for his 2024 income or his 2025 income from Royal LePage. He testified that he was unable to afford any further report but that even if he had been able to pay for one, his 2025 year-end occurred just before the start of the trial. Despite his net income from Royal LePage being less, at $88,368 in 2024 and at $91,594 in 2025, than $102,232 in 2023, he was prepared to use his income for support purposes of $61,000 from 2023 for the last two years. I accept this as being a reasonable income figure from his work at Royal LePage.
Conclusion on Respondent’s Income
67Adding the foregone commission of $41,850 and the Pulse Medical income of $6,074, the respondent’s total income for support purposes in 2024 is $108,924. Adding the foregone commission of $1317 and the Pulse Medical income of $16,510, the respondent’s total income for support purposes for 2025 is $78,827.
Calculating Child Support
68The incomes as agreed to or as found by me are as set out below:
| Applicant | Respondent | |
|---|---|---|
| 2021 | $29,155 | $158,000 |
| 2022 | $78,015 | $57,000 |
| 2023 | $96,469 | $61,000 |
| 2024 | $85,000 | $108,924 |
| 2025 | $143,090 | $78,827 |
69Other than from January 8, 2021 to June 30, 2021, when their child resided primarily with the applicant. the child support based upon the found incomes is to be calculated and paid on a straight set-off basis.
70I leave it to the parties to determine what amount is owed as between them for retroactive child support. They both agree that a retroactive support order is appropriate and fair. For the period to June 30, 2021 the amount of $8,142 is the amount of child support payable by the respondent to the applicant.
71The applicant argues that straight set-off child support is inappropriate because of the conditions, means, needs and other circumstances of her household and the respondent’s. However, the applicant did not present sufficient evidence to show that there was such a disparity between the parties’ two households so that their son experienced a noticeable decline in his standard of living as he moved from the respondent’s household to hers.
72The homes themselves are comparable in size and look. The household expenses for each party as set out in their respective financial statements are similar. If anything, the applicant spends more than the respondent does on their child. It is not as if their child lives in luxury when with the respondent and in poverty with the applicant. The lifestyles are similar. In my view straight set-off in child support should apply.
Costs Thrown Away
73There is also an issue of costs thrown away during the course of the litigation between the parties.
74When the applicant issued her application in November 2023 she sought a variety of parenting relief including decision making and certain parenting time. This was despite the fact that the parties already had an executed parenting plan from December 2022 which provided that any parenting issues were to be resolved through mediation or arbitration.
75Justice Sharma decided on a conference in September 2024 that the court did not have jurisdiction to deal with any of the parenting issues, leaving child support as the only issue between the parties. In February 2025, the applicant formally withdrew her parenting claims through a notice of withdrawal.
76On February 15, 2025, Mathen J. ordered, on consent, that the matter of costs thrown away was to be reserved to the trial judge.
77The respondent submitted that $15,000 was a fair and reasonable amount, reflecting some of the total legal fees incurred by him between the date of the application being served and the notice of withdrawal, on a substantial indemnity basis.
78It is impossible to discern from the bill of costs provided in evidence by the respondent what time was spent dealing solely with parenting issues and what was spent on other issues. For example, the respondent includes all of the time spent on December 17, 2023 drafting his answer. While the answer does deal with parenting issues it also deals with financial ones.
79Some of the docket entries clearly deal only with financial issues. Some of the docket entries clearly deal only with parenting issues, such as where a form 35.1 affidavit is being sworn, but these are rare. Nearly all the docket entries are unclear. The respondent also includes time following the settlement conference where Justice Sharma determined that that the court did not have jurisdiction on parenting issues. This time is questionable as, while the parenting issues were not officially gone until February 2025, for all intents and purposes they were from the settlement conference in September 2024.
80I also fail to see why the costs should be on a substantial indemnity scale. The order of Justice Mathen does not provide for costs on this scale. The Family Law Rules, O. Reg. 114/99, at r. 12(3) do not provide that costs are to be on a substantial indemnity scale. In Charles v. Sargeant, 2015 ONSC 5864, relied upon by the respondent, the court awarded a blend of substantial indemnity and full indemnity costs against a respondent who withdrew all of her claims during trial on the eve of closing argument. The court there relied on offers to settle that had been bettered. The court also found the conduct of the respondent to be reprehensible and in bad faith throughout the entirety of the court process. That case is far different from this one.
81No offer that may have impacted the level of costs was provided to me and while the applicant’s claim may have been misguided, her decision to initially proceed with it was not done in bad faith. Nor was the applicant’s conduct in initially proceeding with the parenting claim reprehensible.
82Considering all of the above, I award costs on account of the parenting claims advanced by the applicant and then withdrawn, in the amount of $5,000.
Alleged Overpayment
83The respondent in his draft order includes a paragraph claiming repayment of an alleged overpayment of child support to August 2023 of $24,412. He also includes a paragraph seeking repayment of $4,005.40 for items that he claims should have been covered by child support but for which he paid separately.
84I am not prepared to make either order. No claim for this relief is clearly set out in his answer, where he sets out the specific orders that he is seeking. As well, the payments that were made by the respondent were made voluntarily. There was no agreement that they were subject to review or re-calculation or that they were made on a without prejudice basis. The respondent acknowledges that there is to be no retroactive adjustment or payment between the parties with respect to special or extraordinary expenses from January 8, 2021 to December 31, 2025. The same should apply to child support and the additional items listed. The payment of any retroactive child support should be in accordance with the incomes as determined by me and these reasons where already addressed.
Conclusion
85Child support on a go forward basis needs to be determined. It is not appropriate to use the 2025 incomes of the parties. The 2025 income for the applicant was an anomaly as it included money from her claim against her former employer. The 2025 income for the respondent included income from a second job with Pulse Medical, which was short lived and also, in my view, an anomaly.
86For 2026 I find the applicant’s income to be $85,000 and the respondent’s to be $61,000. This results in a payment of $792 from the applicant to the respondent and of $566 from the respondent to the applicant for a set-off payment from the applicant to the respondent of $226 per month. Such payment is to commence on February 1, 2026, and on the first day of each month thereafter. SDO to issue.
87The applicant’s proportionate share of s.7 expenses shall be set at 58% and the respondent’s at 42%, in accordance with their respective incomes of $85,000 and $61,000.
88Both parties wanted orders requiring life insurance as security for the child support payments. Therefore, each party shall maintain a life insurance policy naming the other party as the irrevocable beneficiary as security for their respective child support payments. The face value of each policy shall be in accordance with a SSAG calculation, based upon the income amounts of $85,000 and $61,000 alone.
89The amount of child support shall be reviewed annually. For as long as child support is to be paid, the parties must provide updated income disclosure to the other each year, within 30 days of the anniversary of these reasons and order, in accordance with s. 24.1 of the child support guidelines.
90This order bears interest at the post-judgment interest rate set pursuant to the Courts of Justice Act, R.S.O. 1990 c. C.43 on any payment or payments in respect of which there is a default, from the date of default.
91I have received both parties’ respective Bills of Costs. They are not that dissimilar, especially when the costs associated with the parenting aspects, as already dealt with, are backed out. At first blush, success to me seems to be divided, so that neither party is entitled to costs. Of course, I do not know whether any offers were made which could have an impact on both the possible quantum of costs and their award.
92I would hope that the parties could work out the issue of costs, however if unable to do so, if either party believes that they are entitled to costs they are to provide cost submissions, consisting of a maximum of 5 typed double-spaced pages, with any necessary attachments such as offers to settle on or before May 15, 2026. No caselaw is required. Each party is to provide responding submissions of a maximum of 3 typed double-spaced pages, with any necessary attachments on or before May 25, 2026. There are to be no reply submissions.
93All submissions are to be uploaded to Case Center to the Trial Documents bundle and are to be provided to maria.kolliopoulos@ontario.ca to my attention. If the parties reach an agreement on costs they are to advise of the fact of an agreement to the email address provided above.
Justice K. Hood
Released: April 30, 2026