CITATION: Rieger v. Colpitts, 2026 ONSC 3653

COURT FILE NO.: FS-23-00038116-0000

DATE: 20260327

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

JANICE RIEGER

Applicant

– and –

JONATHAN COLPITTS

Respondent

Emma Katz and Zillah Virji, counsel for the Applicant

Self-represented, not appearing

READ: March 27, 2026

REASONS ON UNCONSTESTED TRIAL

SHIN J:

1This is an uncontested trial. The parties were married on August 26, 2006 and separated on June 5, 2022. Their two children are 11 years old (born January 2, 2015) and 7 years old (born May 8, 2018). The application was issued on September 8, 2023.

2The applicant mother seeks an order that includes that:

(a) the mother have sole decision-making responsibility for the children;

(b) the children reside with the mother;

(c) the father have reasonable time with each child at the mother’s discretion;

(d) the father pay child support based on an imputed annual income of $35,000;

(e) the father contribute a proportionate share to the children’s s. 7 expenses based on this imputed income;

(f) the mother be permitted to travel with the children without the father’s consent;

(g) the mother be permitted to renew the children’s government issued identification without the father’s consent; and

(h) costs fixed at $8,913.44.

3The record before me consists of the following:

(a) Form 8 Application issued on September 8, 2023.

(b) Form 23C: Affidavit for Uncontested Trial sworn on April 17, 2025.

(c) Form 35.1 Affidavit (decision-making responsibility parenting time, contact) sworn on March 5, 2025.

(d) Form 13.1 Financial Statement (property and support claims) sworn on March 5, 2025 (the “Financial Statement”).

(e) Draft Form 25D Order (Uncontested Trial).

(f) Factum for Uncontested Trial dated April 23, 2025.

(g) Proof that the respondent was served with the April 16, 2025 Form 23C; March 5, 2025 Form 13.1; March 5, 2025 Form 35.1; the draft order; and factum.

(h) Endorsement of Diamond J. dated July 8, 2024 granting the respondent additional time to serve his Answer and sworn Financial Statement (to September 13, 2024).

(i) Endorsement of Shin-Doi J. dated October 21, 2024 noting the respondent had not filed his Answer and providing the applicant leave to proceed with an uncontested trial.

(j) Endorsement and Order of Nakonechny J. released December 12, 2025 regarding the Ellerbeck Property and the Eastmount Property.

4The respondent father has not filed any materials in this proceeding. He has not filed an answer or a financial statement despite being given an extension of time to September 13, 2024 (a year after the application was issued) to do so. He attended a case conference before Diamond J. on July 8, 2024 where he requested and was granted an extension of time to serve his Answer and sworn financial statement and an adjournment of the case conference. He did not attend the rescheduled case conference before Shin-Doi J. on October 21, 2024. Justice Shin-Doi granted the mother leave to split the issues between this uncontested trial and a motion regarding properties. She also severed the divorce.

5On December 9, 2025, Nakonechny J. heard the motion regarding the sale of the two properties owned by the mother and father – the matrimonial home and an investment property where the father was then residing. The father attended at this motion. While he did not have standing, Nakonechny J. allowed him to make submissions. On December 12, 2025, Nakonechny J. ordered:

(a) the sale of the two properties as the mother requested;

(b) that half of the net proceeds of sale be paid out immediately to each party and that the mother be reimbursed from the father’s share for the payments she made to carry the properties on the father’s behalf; and

(c) costs in the amount of $5,000 to be paid from the father’s share of the net proceeds of sale.

6As the mother filed her materials for this uncontested trial prior to the motion before Nakonechny J., I am unaware of the status of the sale of the properties including whether any amounts have already been paid out to the parties.

parenting

Legal Principles

7The court shall only consider the best interests of the child in making a parenting order: s. 16(1), Divorce Act, R.S.C., 1985, c.3 (2nd Supp.). Section 16(3) provides that the court shall consider all factors related to the circumstances of the child, including:

(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

(b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;

(d) the history of care of the child;

(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

(g) any plans for the child’s care;

(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;

(j) any family violence and its impact on, among other things,

(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and

(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

8Section 16(2) provides that the child’s physical, emotional and psychological safety, security and well-being shall be given primary consideration when considering the factors listed in s. 16(3).

Evidence and Analysis

9The mother deposed that she has been the children’s primary caregiver since their birth. The mother has been providing for the children’s emotional and physical needs on a consistent basis throughout their lives. Since separation, the children have continued residing with her and she had sole responsibility for caring for the children’s needs, including their schooling, medical, dental and extra-curricular activities. The father has not participated in the children’s education or medical and dental appointments.

10The mother deposed that the father had substance use and mental health issues during the marriage. Prior to separation, the father was not consistently involved in the children’s day to day care and he was unreliable at times in meeting the children’s needs.

11Since separation, the mother has attempted to maintain regular communication with the father about the children. Despite this, the father communicates with the mother irregularly and is often unresponsive or unreachable and does not follow through on things he says he will do. There have been times when the father would not communicate for days, worrying the mother and at least the older child. They have rarely made decisions about the children together as a result.

12Likewise, despite the mother’s efforts to arrange for the father to have contact and parenting time with the children since separation, he has been unreliable in meeting the children’s needs. His time with the children has been inconsistent. He has said he would visit or pick them up but then cancels or does not show up. Sometimes he would show up at the house unannounced and let himself in without checking if the children were available. When he does see the children, he struggles with spending long periods of time with both children and has typically spent about an hour with them before becoming overwhelmed or leaving.

13In her April 17, 2025 affidavit, the mother deposed that the father had not had any contact with the children since January 24, 2025 of his own accord. Justice Nakonechny noted in her December 12, 2025 endorsement that the father, “has not had parenting time with the children since October 2025 despite the Applicant’s efforts to arrange times with him.” (at para. 11).

14The mother deposed that: “The children are no longer disappointed when Jon doesn’t show up because they do not expect Jon to follow through.” She believes the children do not view him as an active and dedicated parent in their lives.

15I find that the mother has been the children’s primary caregiver since birth. She has been the children’s de facto sole decision-maker since separation. She has provided them with a stable home. She is a dedicated, reliable, loving and responsible parent who has demonstrated that she makes good decisions and choices with respect to the children. The children are closely bonded to her. She has the ability and willingness to continue to properly care for and meet the needs of the children. She has the support of her extended family and friends.

16The mother has attempted to facilitate the father’s contact with the children after separation. However, the father has clearly struggled to communicate with the mother and he has been an unreliable and inconsistent presence in the children’s lives. There is no evidence that the father’s behaviour will change. I accept the mother’s evidence that she continues to want the children to spend time with their father and to foster their relationships going forward. I accept that she intends to allow the father to have as much parenting time with the children as is consistent with their best interests. She is open to gradually increasing his parenting time and setting a schedule once he demonstrates the ability and willingness to be a reliable parent on a regular basis.

17I have considered all the relevant factors in s. 16(3) of the Divorce Act, particularly ss. 16(3)(a), (b), (c), (d), (g), (h) and (i), and applied them to the facts I have found. On the evidence of the history of the parenting relationship before me, I find that it is in the children’s best interests that they continue to reside with the mother and that the mother have sole decision-making responsibility regarding the children’s education, health and activities.

18I also find that it is in the children’s best interest that the mother continue to attempt to arrange reasonable time between the father and each child at her discretion. If the father seeks contact or visits with the children, it shall be at the discretion of the mother.

19The mother also asks for orders that she be permitted to travel with the children and renew their government issued identification without the father’s consent. This is a reasonable request. The mother cares for the children and is responsible for their documents. She plans the children’s activities including their travel. The mother has had difficulties in the past in obtaining the father’s cooperation or follow through on signing these consents. If the mother travels outside Canada with either child or both of them, she shall provide the father with the travel information and a contact number where they can be reached in case of an emergency.

Imputing Income re Child Support and s. 7 Expenses

Legal Principles

20A parent is to provide for the material well-being of a child. Parents have joint and ongoing obligations to support their children: Drygala v. Pauli 2002 CanLII 41868 (ON CA), [2002], 61 O.R. (3d) 711 (C.A.), at para. 32; Templeton v. Nuttall, 2018 ONSC 815, at para. 59. An objective of the Federal Child Support Guidelines, SOR/97-175 is to establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both parents: s. 1(a). The presumptive rule set out in s. 3(1) of the Guidelines is that the proper amount of child support is the table amount.

21Section 15 of the Guidelines provides that a spouse’s annual income is to be determined in accordance with ss. 16 to 20. Section 16 provides that a spouse’s income is determined using the sources of income set out under the heading “Total income” in the T1 General form on their income tax return, subject to ss. 17-20 and adjusted in accordance with Schedule III.

22Section 19(1) of the Guidelines permits the court to impute income to a spouse as it considers appropriate in the circumstances. This section sets out a non-exhaustive list of circumstances where income may be imputed including that the spouse is intentionally under-employed or unemployed (s. 19(1)(1)) and where the spouse has failed to provide income information when under a legal obligation to do so (s. 19(1)(f)).

23The inclusion of authority for the court to impute income in the Guidelines highlights that the fundamental obligation of a parent to support their children takes priority over the parent’s own interests and choices. It also reinforces that parents must act responsibly when making financial decisions that may affect their level of income.

24Imputing income is discretionary and fact-driven. There must be some basis in the evidence for the amount the court imputes: Drygala, at para. 44; Templeton, at para. 61.

25Intentional under-employment or unemployment does not require specific intent to evade child support obligations or bad faith before income can be imputed. Rather, it means that the payor is choosing to earn less than they are capable of earning or choosing not to work when capable of earning an income: Drygala, at paras. 25-36.

26In determining whether a party is intentionally under-employed or unemployed, the court should consider what is reasonable in the circumstances. Factors to be considered include age, education, experience and work history, skills, health, availability of work opportunities, and the amount of income the payor could reasonably earn if they worked to capacity: Drygala, at paras. 45-46; Templeton, at para. 62.

Evidence and analysis

27The mother seeks an order that the father pay the table amount of child support and his proportionate share of the s. 7 expenses for the two children. She asks that the father’s income be imputed to $35,000. The father has not paid any child support or contributed to s. 7 expenses since the parties separated in June 2022. The mother has been solely paying for all of the children’s expenses.

28The mother is a managing director of business operations at a global commercial real estate services firm and her gross annual income in 2023 was $174,296 (line 15000 of her 2023 income tax return).

29The father is 47 years old. The mother deposes that the father is a contractor. He worked sporadically throughout the marriage. He has struggled with substance use and mental health issues over the years.

30As noted, the father has failed to provide any financial disclosure in contravention of the Family Law Rules, O. Reg. 114/99, the Guidelines and court orders. As a result, the mother has very little information regarding the respondent’s work or income since separation. The mother believes he has been under-employed since separation.

31The mother has no knowledge of what the father did with the $4,000 per month rental income he solely received from their investment property between June 2022 and August 2023 (when the respondent evicted the tenants and moved into the property). Since separation, the mother has paid 100% of the upkeep costs for this investment property and the matrimonial home.¹

32In November 2024, the father told the mother that he had been working on a construction project that was expected to continue until the end of 2024. She had no direct knowledge of how much he was being paid for this project or the hours he worked. It appears she is unaware of any other paid work he may have undertaken post-separation or any efforts he has made to work or find work.

33Exhibit D to the mother April 17, 2025 affidavit is a website excerpt from the Government of Canada’s Job Bank which contains the prevailing hourly wages for a construction worker in Ontario (updated on November 29, 2023). It shows a low rate of $17.20/hour; a mediate rate of $23.00/hour; and a high rate of $38.00/hour. The mother asks that I find the median rate of $23.00 per hour applicable to the father and that he is able to work 30 hours a week. Based on this, she asks that I impute an annual income of $35,000 to him, which is similar to the income for a full time worker earning minimum wage.

34I find it is appropriate to impute income to the father on the basis that he has failed to provide income information when under a legal obligation to do so (s. 19(1)(f)); and that he is intentionally under-employed or unemployed (s. 19(1)(1)).

35Where a party fails to provide full financial disclosure, the court is entitled to draw an adverse inference and to impute income to them: Szitas v. Szitas, 2012 ONSC 1548, at para. 57.6. There is no evidence before me that the father’s past substance use, mental health issues, or any other health-related factor presently affects his ability to work. I have no information regarding any difficulty the father may have in working at least 30 hours per week since separation. In these circumstances, I find that if the father is working less than 30 hours per week, he is under-employed. I also find that using a median hourly rate for a construction worker in Ontario, $23.00 per hour, as the respondent’s hourly wage is reasonable.

36As a result, and on this evidence, I find it appropriate to impute an income of $35,000 to the father in determining his obligation to pay child support on a retroactive and prospective basis.

(i) Child Support

37Exhibit E to the mother’s April 17, 2025 affidavit is the DivorceMate calculation for guideline child support for the two children as being $532.00 per month. This is based on the primary residence being with the mother and using annual incomes of $35,000 for the father and $174,295 for the mother.

38I, therefore, order that the respondent father pay $532.00 per month in child support for the two children beginning on June 5, 2022 which is the date of separation.

39The mother claimed child support in the Application issued on September 8, 2023. The father has had an obligation to support the children since separation and has failed to do so. He has failed to make financial disclosure as required. Had he complied with his disclosure obligations, the court could have ordered support based on his actual income. This order is made without prejudice to the mother’s right to claim child support in accordance with the father’s actual income if she obtains better evidence.

(ii) Section 7 expenses

40The mother seeks an order that the father contribute a proportionate share to the children’s s. 7 expenses in accordance with his income. I have reviewed the applicant’s financial statements and the receipts and invoices attached to her affidavit. The total amount the applicant has been paying for s. 7 expenses is $30,295.54 per year or $2,532.96 per month. The s. 7 expenses are for baseball, swimming lessons, daycare and summer camps for both children; and for the older child alone, personal training and therapy as he has been experiencing anxiety and bullying at school. I accept the mother’s evidence regarding the children’s s. 7 expenses which she has solely paid. I find that these are reasonable s. 7 expenses.

41Based on the Exhibit E - Divorce Mate calculation, the father’s proportionate share of the s. 7 expenses is 16.7% which amounts to $423.00 per month. I agree with the mother that an order for a fixed monthly amount is in the children’s best interests and is necessary to mitigate against the communication issues described above.

42I, therefore, order that the respondent father pay $423 per month for the s. 7 expenses of the two children beginning on April 1, 2025 and on an ongoing basis.

Costs

43The applicant is presumptively entitled to costs of this uncontested trial as she is the successful party: R. 24(3), Family Law Rules. Rule 24(14) provides as follows:

24(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.

44The mother made numerous attempts to discuss resolution with the father in 2022 and 2023 as she was hopeful the issues could be resolved. All of her attempted communications went unanswered. She also deposed that after the July 8, 2024 appearance before Diamond J. she gave him $10,000 to retain counsel and prepare and deliver an answer and financial disclosure. Despite this, the father missed Diamond. J’s September 13, 2024 deadline for an answer and financial statement and has never provided any financial disclosure. He has not repaid the $10,000 and the mother does not know what he did with that money.

45The applicant mother’s bill of costs is attached to her Affidavit in Exhibit A. She seeks substantial indemnity costs (80%) in the amount of $8,913.44 against the respondent. The bill of costs also notes that the partial indemnity recovery amount (66%) is $7,353.59 and the full recovery amount is $11,141.80.

46The $450.00 hourly rate for Ms. Katz who was called to the bar in 2013 and the $350 rate for Ms. Virji who was called to the bar in 2019 are reasonable. So is the $200 hourly rate for the law clerk. There are no disbursements listed or offers to settle attached.

47The bill of costs includes time spent for the further case conference before Shin-Doi J., and the preparation of the materials for this uncontested trial. The hours spent by each lawyer and the law clerk are not noted and the tasks are not broken down. Based on the full indemnity totals and the hourly rates listed, it appears the total hours spent is approximately 28 hours – broken down as four hours spent by Ms. Katz, 21.5 hours spent by Ms. Virji, and 2.3 hours spent by the law clerk. I find this amount of time reasonable.

48Considering the parties’ behaviour, the time spent and rates charge, I find that the requested all-inclusive amount of $8,913.44 to be proportional, fair and reasonable.

ORDER

49I have revised the draft order provided in accordance with this endorsement and signed it. It shall be issued and released together with this endorsement.

The Honourable Justice L. Shin

Footnotes

1. 1In her December 12, 2025 Endorsement and Order, Nakonechny J. ordered that the mother shall be reimbursed for the payments she made on the father’s behalf in relation to these properties ($51,242.23) from the respondent’s share of the net proceeds of sale of the matrimonial home.