SUPERIOR COURT OF JUSTICE
BETWEEN: )
JAMIE MARGRET MAY PETERS )
Applicant )
– and – )
CHRISTOPHER ALLAN PETERS )
Respondent )
Barry Lynn, acting on a limited retainer
Self-represented
HEARD: November 27, 2025
RULING ON MOTION
THE HONOURABLE JUSTICE MATHAI
Introduction
Introduction
1The Applicant, Jamie Peters, seeks the following relief:
(a) Child support in the monthly offsetting amount of $1,252.00 commencing from December 2025;
(b) An order granting Jamie arrears in the amount of $6,492.64; and
(c) An order requiring the Respondent, Christopher Peters, to confirm in writing that he is refinancing the matrimonial home and will make a buyout payment of
$164,253 inclusive of prejudgment interest. If Christopher is unable to do so, then
an order requiring the matrimonial home to be listed for sale and sold at the first reasonable offer.
2Christopher opposes the relief sought, asking that the Court impute a higher income to Jamie due to intentional unemployment, incomplete disclosure, and her reliance on non-taxable income and subsidies. Christopher also argues that child support payments should be lower than the table amounts for a variety of reasons. Christopher opposes the order seeking child support arrears on the basis that the amount claimed is inflated.
3While Christopher has requested various forms of relief, he did not file a cross-motion in support of his requested relief. As such, I have not considered any forms of relief that are not directly tied to the relief sought by Jamie.
Background
Background
4Jamie and Christopher were married on June 12, 2010. They have four children. The couple purchased their matrimonial home in April 2017. The parties separated on September 1, 2023. Jamie moved out of the matrimonial home on March 1, 2024.
5After Jamie’s departure, all four children were residing with both parents on a 50/50 basis. That was short lived. Since April 2024, Jamie has had primary parenting time with the eldest child (16 years old). Since August 2025, there have been occasions where the eldest child stays at Christopher’s house to be with her siblings.
6From March 1, 2024, to September 1, 2024, Christopher paid Jamie $1,517 a month in child support. Jamie alleges that from October 2024 to June 2025, Christopher’s payments were sporadic and in amounts lower than $1,517.
7At a July 3, 2025 case conference, the parties agreed that Christopher would pay $1,032 per month in child support beginning July 1, 2025. No order with regards to support was taken out, nor did the parties enter into a written agreement with respect to child support. At the case conference, the presiding judge granted the parties leave to bring any motion regarding: (a) changes to parenting time; (b) child support; (c) motions in relation to the matrimonial home; and
(d) outstanding disclosure issues.
8At the time this motion was first before me, Jamie alleged that from September 2024 to June 2025, Christopher owed child support arrears in the amount of $5,832.64 based on a proposed monthly child support amount of $1,331 per month.
9On August 5, 2025, I adjourned the motion sine die so that the parties could engage in mediation. Regrettably, mediation was not successful.
10The parties returned before me on November 27, 2025. In her updated materials, Jamie alleges that Christopher now owes $6,492.64 in arrears from September 2024 to December 1, 2025. Jamie now proposes that child support be fixed at $1,252 per month commencing December 1, 2025.
Child Support, Imputed Income, and Arrears
Child Support, Imputed Income, and Arrears
11I start with a preliminary issue. Is Jamie required to establish a material change in circumstances to seek child support in an amount higher than what was agreed to by the parties on July 3, 2025?
12Both s. 17(1)(a) and s.17(4.1) of the Divorce Act, RSC 1985, c 3 (2nd Supp), speak to a motion judge being satisfied that there has been a change in the conditions, needs, or other circumstances since the making of the spousal support order. In this case, there has been no support order made such that s. 17 would apply.1 As a result, I find that Jamie is not seeking a variation of a child support order and does not have to establish a material change in circumstances.
13Jamie is currently employed as a Registered Early Childhood Educator at an early learning centre. She works 30 hours a week for $28.11 per hour. During the summer months of 2024, Jamie collected Employment Insurance (“EI”) benefits for 7 weeks, as the early learning centre did not run during the summer and resumed the week before school started. Jamie’s 2024 Notice of Assessment lists her total income as $36,018.00.
14In her November 2025 affidavit, Jamie states that her income remains the same subject to changes with respect to holidays and a higher hourly rate. For this school year, the early learning centre will be open during some of the holidays and, as a result, she will work more weeks than she did in 2024. Jamie estimates her yearly income for 2025 to be $41,195. Jamie’s last pay stub, dated November 7, 2025, states that her year-to-date income was $36,684.90. Jamie’s November 2025 affidavit states that the financial information included in her December 19, 2024 Financial Statement is largely unchanged. The December 19, 2024 Financial Statement was not uploaded to Case Center.
15Christopher alleges that Jamie is underemployed. Based on his viewing of Jamie’s employer’s website, Christopher argues that there are multiple employment opportunities for Jamie to work 40 hours per week with an average starting salary around $50,000. Christopher reasons that based on her hourly wage and working 52 weeks a year, Jamie’s income should be set at $58,468.80. Jamie denies this allegation. In her affidavit, Jamie states that there are no additional hours available for her to work.
16Christopher is employed as a full-time plumber. In his November 2025 affidavit, he states that his income is $78,000.00 per year, less union dues. Christopher did not file any tax documents in support of his position on this motion, nor has he filed his year-to-date paystubs. Christopher’s 2024 Notice of Assessment is not before me, thought it was referenced in Jamie’s July 2025 affidavit. In that affidavit, Jamie states that Christopher’s 2024 Notice of Assessment reflects an income of $79,277. Christopher has not disputed this evidence.
17In his November 21, 2025 Financial Statement Form, Christopher attests to the following:
(a) that his gross income from all sources in 2024 was $74,591.00; and (b) that his current yearly annual income, inclusive of child tax benefits or rebates, is $79,979.28. The Financial Statement
Form indicates that pay stubs, personal tax returns, and the Notice of Assessment are attached. If the documents were attached, they were not uploaded into Case Center.2 I note that it appears that Christopher’s purported income for 2025 is roughly the same as his income as reflected in his 2024 Notice of Assessment (i.e. $79,277.00).
18Jamie claims that Christopher’s income should be imputed at $88,210.00, representing the average of his income from 2021 to 2024 as reflected in his Notices of Assessment for those years. Jamie argues that Christopher is intentionally underemployed, and that his Notice of Assessment does not report the income he receives from his “side jobs.” Christopher denies this allegation. In oral argument, he advised that his employment income decreased due to fluctuations in work.
19Based on her income and Christopher’s imputed income, Jamie argues that child support should be fixed at $1,252.00. In his July 2025 affidavit, Christopher states that child support in the amount of $1,032 per month is appropriate. At the November 27, 2025 hearing, Christopher argued that the child support payments should be fixed at $500-600 a month to ensure that his standard of living is equal to Jamie’s standard of living.
20As detailed above, both parties request that income be imputed to their former spouse. Jamie and Christopher both deny being intentionally underemployed.
21On the record before me, I am unable to make the finding necessary to impute income. (see Chaudhry v. Meh, 2019 ONSC 7065, at para. 22; Gafanha v. Gafanha, 2022 ONSC 1613, at para. 17). Ultimately, whether either party is intentionally underemployed is an issue that requires credibility findings that should be addressed by a trial judge on a complete record, tested by cross- examination. At this interim stage, my ability to assess credibility and reliability is limited and, as a result, I am unable to make the finding necessary to impute income (see Lamb v. Watt, 2017 ONSC 5838, at para. 34; MacIntyre-McAlear v. McAlear, 2018 ONSC 1395, at para. 55; Vermeire
v. Bates, 2022 ONSC 1278, at para. 14). I find that neither party has met their burden to provide an evidentiary basis for determining whether income should be imputed (Homsi v. Zaya, 2009 ONCA 322, at para. 28).
22The best evidence before me of Jamie’s income is her 2024 Notice of Assessment and her November 2025 paystubs. Based on that evidence, I accept that her income is $41,195.00.
23The best evidence of Christopher’s income is his 2024 Notice of Assessment. For the purpose of calculating child support payments, his income is $79,277. The income reflected in his 2024 Notice of Assessment is slightly less than his yearly income as identified on his November 2025 Financial Statement Form. I do not rely on that Form to derive his current income because there are no supporting documents that substantiate his stated 2024 income or his expected 2025 income.
24Based on these incomes, the Table Amount of child support is $1,027.00 per month. This, however, is not determinative of child support in shared or hybrid parenting situations. Rather, I
must also consider s. 9(b) and (c) of the Federal Child Support Guidelines, SOR/97-175 (“FCSG”) in determining the appropriate amount for child support.
25With regards to s.9(b), I am unable to find that there are any increased costs created by the shared parenting time arrangement. The parties did not file any evidence establishing additional expenses for transportation or duplication of items.
26Christopher argues that I should lower his child support obligations based on “special expenses.” Special expenses under s. 7 of the FCSG must be considered as part of the s. 9(b) analysis. Christopher claims the following special expenses:
(a) $169.07 a month for the children's health benefits through his annual union dues;
(b) Jamie’s share of the cell phone bill for two of the children, which he asserts amounts to
$81.90; and
(c) $3,675.00 for one of his children's orthodontic treatments from September 1, 2023 to January 1, 2025.
27With respect to cell phones, I find that this is not an eligible section 7 expense (see Evans v Evans, 2023 ONSC 3919, at para. 79(f)). With respect to the health benefits, while this is an eligible expense, there is no evidence that substantiates Christopher’s calculation of how much he pays a month. Finally, the payment of $3,675.00 for orthodontic treatments are eligible expenses; however, those expenses were made in the past. That amount does not impact how much child support Christopher should pay on a going forward basis.
28Christopher also claims that any child support ordered should consider several subsidies available to Jamie. Christopher does not identify the subsidies he believes are available to Jamie. Christopher alleges that Jamie has not disclosed whether she applied or received any of the unspecified subsidies. While subsidies, benefits, tax deductions, and credits should be considered under s. 9(b), Christopher has not identified which subsidies Jamie would be eligible for or set out why Jamie would qualify for the subsidies. At this stage, this argument is speculative.
29Section 9(c) provides the Court with, “a broad discretion for conducting an analysis of the resources and needs of both parents and children” (see Contino v. Leonelli-Contino, 2005 SCC 63, [2005] 3 S.C.R. 217, at para. 68). The Court is focused on the standard of living of the child in each household and the ability of each parent to absorb the costs required to maintain the appropriate standard of living in the circumstances (see Contino, at para. 68).
30Again, the record is inadequate. The parties have not provided me with the evidence necessary to determine whether the standard of living for any of the children has been impacted. While there is evidence before me that Christopher has larger expenses and debts, there is no evidence of how these expenses and debts are impacting the standard of living of the three children for whom parenting time is shared. Christopher argues that after the receipt of child support payments, tax benefits, credits, and receipts, Jamie’s net disposable monthly income is approximately $1,060.71 higher than his monthly income. Even if I were to accept Christopher’s calculations, which I make no finding on, his argument does not account for the fact that Jamie has primary parenting time with their eldest child.
31Having considered the s. 9(b) and (c) factors, I find that there is a lack of evidence before me that would warrant setting an amount that is lower than the table amounts. As such, I award
Jamie interim child support in the amount of $1,027.00 per month on an interim basis. These payments will begin on February 2, 2026.
32Additionally, I dismiss Jamie’s request for arrears, which is really a request for retroactive support. The record before me is contested. The parties disagree on amounts that Christopher has paid between September 2024 to December 1, 2025.
33In her July 2025 affidavit, Jamie provides a breakdown of payments made and payments missed between March 1, 2024 and July 1, 2025. Jamie provides no bank statement to support what she states in her affidavit. Jamie’s November 2025 affidavit does not provide any information with respect to payment since August 2025 but does concede that Christopher “has been making monthly payments [of] $1,032.00.”
34Christopher alleges that he has made nearly $36,548.36 in payments to Jamie from January 2024 to November 2025 (see Exhibit B to Christopher’s November 2025 affidavit). Like Jamie, Christopher provides no banking statements to support Exhibit B.
35Given the conflict in the evidence and the possibility that child support payments may be reduced at trial, I find it best to leave the issue of arrears/retroactive child support to the trial judge.
36Finally, I reject Christopher’s undue hardship claim. None of the circumstances in s. 10(2) have been met. While Christopher has debts, there is no evidence before me that establishes that those debts were incurred to support Jamie and the children prior to separation. Given this finding, I need not compare the standards of living for Jamie and Christopher (Gaetz v. Gaetz, 2001 NSCA 57, 193 NSR (2d) 143, at para. 15).
Sale of the Matrimonial Home
37Section 2 of the Partition Act, R.S.O. 1990, c. P.4, empowers the court to order the sale of a jointly owned home, including a matrimonial home. In addition, ss. 23 and24 of the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”), deal specifically with the court’s powers regarding the sale, possession, and exclusive possession of a matrimonial home:
- The court may, on the application of a spouse or person having an interest in property, by order,
(b) authorize the disposition or encumbrance of the matrimonial home if the court finds that the spouse whose consent is required,
(i) cannot be found or is not available,
(ii) is not capable of giving or withholding consent, or
(iii) is unreasonably withholding consent,
subject to any conditions, including provision of other comparable accommodation or payment in place of it, that the court considers appropriate.
Order for possession of matrimonial home
- (1) Regardless of the ownership of a matrimonial home and its contents, and despite section 19 (spouse’s right of possession), the court may on application, by order,
(a) provide for the delivering up, safekeeping and preservation of the matrimonial home and its contents;
(b) direct that one spouse be given exclusive possession of the matrimonial home or part of it for the period that the court directs and release other property that is a matrimonial home from the application of this Part;
(c) direct a spouse to whom exclusive possession of the matrimonial home is given to make periodic payments to the other spouse;
(e) order a spouse to pay for all or part of the repair and maintenance of the matrimonial home and of other liabilities arising in respect of it, or to make periodic payments to the other spouse for those purposes;
(f) authorize the disposition or encumbrance of a spouse’s interest in the matrimonial home, subject to the other spouse’s right of exclusive possession as ordered.
Order for exclusive possession: criteria
(3) In determining whether to make an order for exclusive possession, the court shall consider,
(a) the best interests of the children affected;
(b) any existing orders under Part I (Family Property) and any existing support orders or other enforceable support obligations;
(c) the financial position of both spouses;
(d) any written agreement between the parties;
(e) the availability of other suitable and affordable accommodation; and
(f) any violence committed by a spouse against the other spouse or the children.
Best interests of a child
(4) In determining the best interests of a child, the court shall consider,
(a) the possible disruptive effects on the child of a move to other accommodation; and
(b) the child’s views and preferences, if they can reasonably be ascertained.
38The jurisprudence is clear that a requesting party has the prima facie right to sell a jointly owned property under s. 2 of the Partition Act. The onus is on the resisting party to show sufficient reasons why the order for sale should not be made (see Lowe v. Lowe, 2020 ONSC 5224, at para. 18).
39In Afolabi v. Fala, 2014 ONSC 1713, Emery J. held that to successfully resist a motion for the sale of jointly owned property, the party opposing the sale must establish malicious, vexatious, or oppressive conduct on behalf of the spouse who is seeking the sale. If the spouse opposing the sale can establish such conduct, the court has narrow discretion to refuse to order the sale of the home (see also Latcham v. Latcham, 2002 44960 (Ont. C.A.)).
40When considering oppressive conduct, a judge may consider whether the sale of the home would cause hardship to the opposing party or the children. For example, if the opposing party did not have the ability to find somewhere to live, or the children would be deprived of a place to live (see King v. Shaw, 2017 ONSC 3050). In Goldman v. Kudeyla, 2011 ONSC 2718, at paras. 17-18 and 20, McGee J. summarized the interplay between the FLA and the Partition Act as follows:
A property owner, whether the holder of an exclusive interest or a joint interest has a prima facie right to sale. When the property consists of an interest in a matrimonial home, that prima facie right is subject to any competing interest under the Family Law Act that would otherwise be defeated. To make a pre-trial order for the sale of a matrimonial home the Court must first determine whether the resisting party has established a prima facie case that he or she is entitled to a competing interest under the Family Law Act. If not, then the right to sale prevails. If so, then the motion is sale is denied unless the selling party can demonstrate that the sale would not prejudice the rights of the resisting party.
…issues arising from relationship breakdown by their very nature inextricably intertwined. I agree with Justice Wright’s reasoning in Walters confirmed in Kereluk, supra that orders for the sale of the home should not be made as a matter of course. One must always be mindful of the whole of the proceeding and the need to move forward as fairly and expeditiously as possible. At the same time, determinations must have a starting point. The sale of the matrimonial home is often the most appropriate catalyst to affect the equal division of family assets and establish post separation parenting patterns.
41As McGee J. noted, there have been cases in which this Court has denied interim motions for sale. In each, there were compelling circumstances favouring the resisting party, such as the availability of a trial within a short period, prejudice to the resisting party’s right to an equalization payment, or the need to preserve the residence for a vulnerable spouse or child who might retain the home at trial.
42Jamie is a tenant in common on the matrimonial home. She has a prima facie right to force the sale of the matrimonial home subject to the competing rights that exist under the FLA.
43In Jamie’s July 2025 affidavit, she states that the mortgage on the home was approximately
$375,000 on the day she moved out and that a realtor provided an opinion that the home’s value is
$720,000.00. Jamie is willing to be “bought out” of the home for $130,000.00, which she argues is a discount. Jamie also states that the home equity line of credit (“HELOC”) on the property sits at $63,500, and that she is not responsible for that debt because the HELOC had not been used when she left the home. Jamie requests that the HELOC be paid down from Christopher’s proceeds of the sale.
44Christopher resists the sale on the basis that the children have expressed a desire to remain at the home. Christopher also argues that a forced sale would prejudice his rights under the FLA because: (a) he has made substantial improvements to the home; (b) Jamie defaulted on a number of bills while she was living at the home; and (c) once net family properties are equalized, Jamie will owe Christopher $59,753.57. Based on several calculations, Christopher argues that Jamie would only receive $57,456.83 from the sale of the home.3 Finally, Christopher asserts that he will have no ability to rehouse the children or himself if the house is sold and he does not have access to the funds.
45With respect to the children, I have no doubt that the sale of the home will have an impact on all the children. However, this is not a reason to deny Jamie’s request for a forced sale. In this regard, I adopt the analysis of Shaw J. in Delongte v. Delongte, 2019 ONSC 6954, at paras. 38-41:
38The applicant’s position is that the home should not be sold as it is the only home the children have known. The children have significant attachment to that house, it is close to their school and it provides them with a sense of stability. If that was a sufficient basis to resist the sale of a matrimonial home following separation, no matrimonial home would be sold in situations where a spouse wished to remain in the home with the children. In most cases, the children are attached to the home, it is close to their school and it provides a sense of stability. That is not, in and of itself, a sufficient basis to defeat a presumptive right to sell a jointly owned property, pursuant to the Partition and Sale Act.
39The applicant submits that selling the matrimonial home is extreme relief. I do not agree. An order for the sale of the matrimonial home is relief that is routinely sought in matrimonial litigation. It is not uncommon that parties wish to access the equity in the matrimonial home for a variety of reasons such as purchasing other property or paying debt.
40Based on a review of the jurisprudence as set out above, there is no basis for the applicant to successfully resist the sale of the matrimonial home. Although she alleges that the children have been having difficulty with the separation and have attended counselling, that is an all-too-common occurrence in high conflict situations. The children are young teenagers and there was no independent evidence led as to how the sale of the home might have a detrimental impact on their well-being, other than what can be typically expected when parties separate and then reformulate a new family unit after separation. Separation is a very dramatic and life-changing event for all involved. It means moving on from the familiar – often including the matrimonial home – to the new and unfamiliar.
41In most situations where parties separate, there is a transitional period of time when financial necessity dictates that the home is sold and the parties must move into their own respective homes. It is to be expected that the children will be dislocated from their home, which will be difficult – as it always is in these situations.
46In this case, I am not satisfied that the housing needs of Christopher and the children must prevent the house from being sold until after the trial. Christopher’s bare assertion that he will not be able to obtain housing is also not sufficient. He has led no evidence to demonstrate that he cannot find a property to purchase or rent. While a new property may not be as “nice” or “large”
as the matrimonial home, this consequence is not unusual following a separation (see McNeil v. McNeil, 2020 ONSC 1225, at para. 38).
47Given the competing positions of the parties, I am unable to ascertain how the proceeds of the sale should be divided. That, however, does not mean that Christopher’s right to an equalization payment will be jeopardized. If the proceeds of the sale are maintained in trust pending agreement between the parties as to allocation or further court order, then neither party’s right to an equalization payment will be jeopardized and the parties will be incentivized to resolve the equalization issues as soon as possible to gain access to the proceeds of the sale (see McNeil v. McNeil, 2020 ONSC 1225, at para. 40; Goodman v. Goodman, 2014 ONSC 3466, at para. 35).
48Finally, Christopher has requested that he be granted exclusive possession of the matrimonial home. I reject Christopher’s request for exclusive possession.
49An order for exclusive possession cannot be used to frustrate an owner’s prima facie right to the sale of the home (see Jiang v. Zeng, 2019 ONSC 1457, at paras. 36-38). Jamie has not resided in the matrimonial home since she moved out on March 1, 2024. There is no indication that she intends to return. Christopher already has de facto exclusive possession. In these circumstances, there is no utility in granting an order for exclusive possession pending the sale of the matrimonial home. Christopher’s motion for exclusive possession is an obvious attempt to avoid having the matrimonial home sold. It must be rejected (Khan v. Khan, 2019 ONSC 4687, at para. 13).
50In light of the above, I order the sale of the matrimonial home on the terms detailed below. To mitigate the impact on Christopher and the children who reside part-time at the home, I order that the matrimonial home be listed no later than June 30, 2026. This provides Christopher with ample opportunity to find new housing. Additionally, deferring the listing to June 30, 2026 will:
(a) allow the children to remain close to their school when they reside with Christopher; and (b) provide the parties with additional time to try to come to an agreement on the property and, more generally, issues of equalization.
Conclusion:
Conclusion
51On a temporary basis, I order that commencing February 1, 2026, and the first day of each month thereafter, Christopher shall pay to Jamie child support for the four children in the monthly amount of $1,027.
52In addition, I order the following in relation to the matrimonial home:
(a) Subject to a court order, the matrimonial home shall be listed for sale no later than June 30, 2026, with a real estate agent to be agreed upon by the parties.
(b) Christopher shall maintain the matrimonial home in good condition until its sale.
(c) Both Jamie and Christopher shall cooperate fully with the listing and sale of the matrimonial home.
(e) The proceeds of sale from the matrimonial home shall be held in trust by the parties’ real estate solicitor pending further written agreement or court order.
53Finally, given the significant gaps in the record before me, I order the following:
(a) each party shall serve the other party with, and file a copy of, the following documents with the Court on or before April 30, 2026:
(i) An updated Form 13: Financial Statement (Support Claims);
(ii) An updated Form 13.1: Financial Statement (Property and Support Claims); and
(iii) An updated Form 13A: Certificate of Financial Disclosure.
(b) Each party shall serve the following documents as proof of income for each of the previous 5 years no later than May 30, 2026 (if not already served):
(i) For the last five years, a copy of each party’s personal income tax return with all schedules, attachments, and information slips, filed with the Canada Revenue Agency;
(ii) Proof of receipt of Employment Insurance benefits for 2025 and 2024;
(ii) If personal income tax returns have not been filed with the Canada Revenue Agency, a copy of all income slips (T4s, T4As, T5s, etc.) received for the previous 5 taxation years;
(iii) Notices of Assessment and, if any, Notices of Reassessment for the previous 5 taxation years; and
(iv) Where Notices of Assessment and Reassessment are not available, a copy of the Income and Deductions printout provided by the Canada Revenue Agency for the previous 5 taxation years.
54Given the gaps in the records provided by both parties and the divided success on the motions, I make no order with respect to costs.
The Honourable Justice Sunil S. Mathai
Released: January 27, 2026
Footnotes
- In arriving at this conclusion, I am mindful that in Howes v. Howes, 1990 12261 (Ont. S.C.), Potts J. found that s. 7 applied when a party attempted to vary the amount of child support paid pursuant to a separation agreement. I find that Howes is distinguishable. In this case, no written agreement was made and, more importantly, the fact that the case conference judge granted leave to bring a child support motion suggests that the originally agreed upon amount was made to bridge the gap until such time when either party brought a child support motion.
- I note that Christopher filed a Form 13.1 and Form 13A for use at the July 3rd case conference. These documents were available on Case Center. In the Form 13A, Christopher notes that his Notices of Assessment from 2021 to 2024 were delivered to Jamie. In addition, the Form 13A includes three payment stubs from June 2025. By June 21, 2025, his yearly gross income was stated as $39,789.84.
- Christopher’s calculations are based on the 2023 valuations of the matrimonial home and the outstanding mortgage as of 2023.