Court File and Parties
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Christopher James Nielsen, Applicant
AND
Bridget Mccabe, Respondent
BEFORE: A. P. Ramsay J.
COUNSEL: Heather Hansen and Sophia Dales, for the Applicant
Judy Piafsky and Laura Dyke, for the Respondent
HEARD: October 16, 2025
ENDORSEMENT
I. Overview
1The parties married on June 27, 2004. They dispute the period of cohabitation. They also dispute the date of separation. At the time of the motion, the applicant claimed they had been married for 17 years, separating in June 2021. The respondent argued that they had been married for 19 years and cohabited 22 years, separating in July 2023.
2The respondent, Bridget Nielsen, brings this motion for interim spousal support, on a without prejudice basis, of $20,505, child support in the amount of $12,035, and for the applicant, Christopher Nielsen, to main her as an irrevocable beneficiary of the applicant’s life insurance policy in the amount of $3.25 million dollars to secure any support obligations.
3The applicant asks that the respondent’s motion be dismissed and asks that the court award interim without prejudice spousal support of $9,000 a month based on his 2023 income, to start when the matrimonial home sale closes.
4Both parties seek their costs of the motion.
5The parties are separated but are both residing in the matrimonial home. They have agreed to sell the matrimonial home.
6The applicant is 45 years old at the time of the motion. He is a former professional athlete but is currently an orthopedic spinal surgeon employed at the Toronto Western Hospital; he is also an assistant professor at the University of Toronto.
7The respondent is 47 years old and a stay-at-home parent, which is not disputed by the applicant. The parties agree that that the respondent has not been employed for approximately 20 years.
8The parties do not dispute that the respondent is entitled to spousal support. They dispute the date spousal support should commence and quantum.
9The parties have three children ages 20, 16, and 13 at the time of the motion. Two of the three children currently reside at the matrimonial home with the parties full-time, and the eldest also resides at the matrimonial home when he returns from university.
10For the reasons below, I would not order child support or spousal support at this time, without prejudice to the respondent to renew her motion, on an urgent basis, if necessary. In my view, the motion is pre-mature as explained below.
II. Child support
11The respondent is seeking interim Table child support of $12,035 per month for the three children on the assumption that the two younger children will reside primarily with her, and that the parties’ eldest son, now at university, will reside with her during the summer months only. She also seeks an order apportioning section 7 expenses with 72% of the obligation allocated to the applicant, and the remaining 28% allocated to her.
12One of the threshold questions raised on this motion is the timing of the support orders. I note that the applicant only addressed the spousal support order, but on this motion, my conclusion on when support payments should commence in the circumstances of this case, relates to both child support and spousal support. The case law establishes that generally, when the payor spouse covers all the carrying costs while the parties reside together under the same roof, no spousal support would be payable: Akinsola v. Akinsola, 2022 ONSC 6906, at para. 98, aff’d 2024 ONCA 592; Korie v. Korie, 2025 ONSC 2530, at para. 61.
13In Henry v. Boyer, 2018 ONSC 6858, Price J. referred to various decisions which grappled with the issue of when support is payable where the parties are separate but remain under the same roof. At para. 94, he noted:
There is not unanimity in the courts’ decisions as to whether child support or spousal support is payable in reference to a period after the spouses have separated but while they continued living under the same roof. The decisions appear to have turned, in large part, on the facts of the case, and whether the court found that the payor spouse had paid, or the recipient spouse had received, amounts in lieu of child support or spousal support during the period for which claims were being advanced.
14In Hardayal v. Asrula, 2018 ONSC 6948, at para. 373, Price J. again, revisited this issue. He commented that the CED Family Law — Divorce VI.8. (b) at §657, noted that where spouses continue to live under the same roof, an application for interim child support may be denied. He noted that the principles cited in cases from the 1970s and 1980s apply under the Family Law Act: R.S.O. 1990, c. F.3. At para. 374, he cites Aston J.’s decision in Moore v. Fernandes, [2001] 25 R.F.L. (5th) 143 (S.C.), at para. 8, wherein Aston J. stated that the Guidelines presuppose the person required to pay child support is residing separately from the children. Justice Aston observed that the tables establish support for individuals who are living apart and presume that the spouse living with the child maintains the child’s standard of living according to their ability to provide: Moore v. Fernandes, at para. 8.
15In Moore, Aston J. observed, at para. 8:
The Guidelines assume that a parent sharing his or her accommodation with the children on a day-to-day basis meets his or her child support responsibility by sharing a certain standard of living with the children in the home, according to that person's ability to provide.
16Similarly, in the recent trial decision of Baroudi v. Young, 2024 ONSC 4425, the parties resided in the home after separation. Both jointly paid the expenses related to the home and the children. Justice Sah J. noted that: “Table child support presupposes the applicant's requirement to pay child support, as it assumes that parents sharing their accommodation with the children on a day-to-day basis meet their obligations to the children in accordance with their ability. Here, there is no evidence to suggest otherwise”: at para. 134; see, Moore v. Fernandes. I pause here to add, as in the Baroudi decision, there is no evidence to suggest that the applicant is not meeting the day-to-day childcare expenses. The applicant’s unchallenged and uncontested evidence is that the respondent contributes nothing to the children’s living expenses.
17I note that the respondent relies on the decision of Hambly J. in Reinhardt v. Reinhardt, [2004] 8 R.F.L. (6th) 340 (S.C.), at para. 80 for the proposition that the court may make an interim order for support even where the parties are residing under the same roof where there has been oppression, financial imbalance, and an inability to fund litigation. On this interim motion, I am not able to determine that there has been financial oppression or financial imbalance because the respondent was a stay-at-home mother. There is evidence before the court, not challenged by the respondent, of spending which exceeds that of the applicant.
18In my view, Reinhardt is distinguishable, and in the paragraph cited by the respondent, the case deals with unconscionability in the context of setting aside a separation agreement. In Reinhardt, the husband dictated the terms of the agreement. It was noted that he “was much stronger, both financially and emotionally,” and that he “did prey upon her vulnerability.” While the respondent indicated that the applicant controlled the family finances, made all the financial decisions, including taking on debt and “incurring expenses for the children, vacations, and other luxuries establishing a family lifestyle that was not financially sustainable”, in my view these assertions are not tantamount to “oppression.” I note that nowhere in the case itself does the court refer to “oppression,” “financial imbalance,” or articulate the test posited by the respondent.
19I note that Hambly J. in fact awarded the wife support commencing from the date that she started living in her new townhouse to “enable her to enjoy a standard of living approaching the standard that she enjoyed during the marriage.”
20In Korie, Law J. ordered at para. 66 “the commencement date for the payment of child and spousal support shall be the 1st day of the month following the closing date for the sale of the matrimonial home.” The uncontested evidence before me is that the parties and the children continue to reside in the matrimonial home together; their eldest child returns to the matrimonial home when he returns from university. In her factum, the respondent acknowledged that the applicant “has held the responsibility of the carrying costs for the Matrimonial Home and Bridget and the children’s living expenses”. The applicant’s uncontested evidence is that the respondent has gone on an expensive trip to the Dominican Republic with their daughter.
21On the evidence, not only do the parties and the children continue to live under the same roof, but it is the applicant who pays all the carrying costs of the matrimonial home and is meeting the children’s expenses.
22In the circumstances, I will make no order at this stage for interim child support.
III. Spousal Support
23In determining whether to make an order for interim spousal support, the court needs to answer the following:
Is the applicant entitled to interim spousal support and if so, is the entitlement compensatory, non-compensatory, or contractual/consensual?
If the applicant is indeed entitled to support, what the appropriate amount of support is that should be paid in this case.
24For the reasons stated above, I would not make an order for interim spousal support at this time either. There are as well additional reasons why I would not make the order on the evidence before me.
25It is well established that on an interim motion the court does not carry out a lengthy and costly needs and means analysis, and an appropriate approach is to focus on income differences by applying the formulas in the Spousal Support Advisory Guidelines: Department of Justice, Spousal Support Advisory Guidelines (Ottawa: Department of Justice, 2008) ("SSAGs"). Interim spousal support must be based upon income sharing not budgets: Brkljac v. Todorovic, 2022 ONSC 5051, at para. 10.
26The respondent submits that there has been no financial arrangement while the parties have been living separate and apart. The respondent argues she only had access to funds through the parties’ joint bank account and joint credit card, and the applicant is the only person who deposits funds to the account and pays off the card. She asserts that she does not have access to day-to-day funds on a frequent basis and have had no money available to her on multiple occasions. She argues that there is a significant financial disparity between the parties.
27The applicant disputes the respondent’s version of events. He points to the fact that in the same three-month period, the respondent spent $56,644 compared to his $28,329. His uncontested evidence is that the respondent continues to spend $200 a week on a cleaner for the house. The applicant contends that the respondent has access to the joint accounts.
28The applicant has challenged the respondent’s needs (her proposed budget) and his ability to pay. His uncontested evidence is that his net monthly income after tax in 2024 was $36,528. Interim spousal support should be ordered within the range suggested by the SSAGs, unless exceptional circumstances dictate otherwise: Department of Justice Canada, Spousal Support Advisory Guidelines: The Revised User's Guide (Ottawa: Department of Justice Canada, April 2016), Chapter 5(c); Singh v. Sandhu, 2013 ONSC 6476, 40 R.F.L. (7th) 78, para. 79; Liddell–MacInnis v. MacInnis, 2021 ONSC 1787, at paras. 65-70.
29The applicant’s unchallenged evidence is that he is paying the parties’ high mortgage debt on the jointly owned matrimonial home and high debt payments on the parties’ joint debts. The respondent agrees that she has not contributed to these payments. On an interim motion for spousal support, the court should attempt to have the parties maintain a reasonable lifestyle until the trial: Cartwright v. Cartwright, 2020 ONSC 7653, at para. 22.
30The applicant argues that there are exceptional circumstances, argues that he cannot afford spousal support, nor is the amount sought fair. The applicant’s uncontested evidence is he is currently paying $17,984.31 per month in carrying costs for the matrimonial home and $2,400 per month towards the parties’ joint debt. His uncontested evidence is also that he makes quarterly installment payments to CRA for taxes, and at the time of the swearing of his affidavit, had paid $44,000 in March, $25,000 in June, and $17,000 in September to the CRA.
31Counsel for the respondent argued that the court should determine what the quantum of spousal support should be and reduce it by 50 percent, or $8,500, to reflect the fact that the husband is paying the respondent’s share of the expenses for the matrimonial home.
32At the time of the motion, the parties intended to list the matrimonial home for sale. The parties have not yet sold the matrimonial home, despite previous court orders for the sale of the home. It is not known when the home will be sold. Aside from the fact that the parties have continued to reside in the matrimonial home since separation, it is the applicant husband who is paying all the expenses related to the matrimonial home and the family debts. At the time of the motion, the parties had accumulated a joint debt (secured and unsecured) of over $2,214,994.96.
33The respondent submits that the only funds she is expected to receive will come from the matrimonial home. I need not decide that issue.
34Counsel for the respondent acknowledges that there is a negative effect on the applicant’s means and ability to pay but says that it will be only short term – that is, until the matrimonial home is sold. The respondent acknowledges that the applicant was paying the carrying costs for the matrimonial home, as well as the joint debts which includes a home equity line of credit and unsecured line of credit. At the time of the motion, it was argued that the debts would be paid off from the proceeds of the sale of matrimonial home. Counsel for the respondent in fact acknowledges that there was a difference in the means of the husband at the time of the motion and what it might be six months from thereafter. Counsel for the respondent argues that the court should determine what the quantum would be and reduce it in the interim by the amount of the expenses.
35The respondent argues that she has no resources or access to capital aside from what the applicant may provide her to enable her to seek alternative housing for herself and the children or to meet any of her basic living expenses once the matrimonial home is sold.
36Based on the respondent’s affidavit, the parties have a significant debt, which is being paid off by the applicant. She acknowledges that the joint debt will be paid off with the sale of the matrimonial home. If so, that would certainly go a long way to address the applicant’s ability to pay. The problem is it is unknown when the matrimonial home will be sold.
37I am also not satisfied on the evidence before me that the applicant would be able to pay spousal support of $20,505 per month at the present time. On an interim support motion, the moving party's needs and the payor’s ability to pay often assume greater significance, whereas the moving party's need to achieve self-sufficiency often assumes less significance than it does at trial: see B.D.C. v. M.C.M., 2014 ONSC 6064, at para. 14. The respondent acknowledges that the applicant is paying her share of the expenses as well. I note that the respondent has not appeared to take into consideration the impact that spousal support at that level and child support of $12,035 would have on both parties with respect to their net disposable income.
38There is some merit to the respondent’s argument that an order for support would enable her to put in place the necessary banking and other arrangements required, and to show that she has an income for the purpose of obtaining a new residence. However, while the respondent argues that she has a need prior to the home being sold, I note that courts have rejected the argument that an interim support order is necessary to facilitate the party’s move where the parties reside under the same roof. I am not able to accept that contention in this case either. While not a deciding factor, I note that counsel for the respondent advised the court that the applicant has agreed to advance an interim disbursement of $50,000 to her.
a. Income above $350,000
39While I make no determination of the quantum or the merit of the applicant’s assertion that income for support purposes should be based on his 2023 income, I would underline that even if the court were to accept the respondent’s position that the applicant’s income, for support purposes, should be based on his 2024 income, she has not addressed the fact that his income pierces the $350,000 threshold. The respondent’s quantum is based on the ranges in the SSAGs when imputing an income to the applicant of $880,000.
40I note the applicant raised the issue of his income being above $350,000; the respondent did not.
41Under s. 16 of the SSAGs, income for support purposes is determined using the sources of income set out under the heading "Total income" in the T1 General form issued by the CRA, colloquially known as the "line 150 income". There are exceptions to the general rule. Under ss. 17 and 18 of the SSAGs, a court may depart from line 150 income if the court determines that the spouse's line 150 income would not be the fairest determination of income. Neither party dispute that the applicant’s line 150 income should be used as the basis for calculating the applicant’s income.
42In 2024, the applicant’s line 150 income was $880,000. Section 11.1 of the SSAGs provide that the formulas do not automatically apply where a payor's gross income exceeds $350,000. But the $350,000 is not a "cap." The Court of Appeal has indicated that for income over $350,000, an individualized, fact-specific analysis is required: Halliwell v. Halliwell, 2017 ONCA 349, at para. 117. An individualized, fact-specific analysis requires that the court considers the effects of an equalization payment on the quantum of spousal support: Halliwell, at para. 107. The presence of a ceiling is also meant to address circumstances of high property awards: Halliwell, at para. 121. The applicant submits that the court should deviate from the SSAG ranges and that a lower quantum for spousal and child support ought to be ordered because he is also paying child support on his current income.
b. Post-separation increases of income
43The applicant also argues that whether the respondent can share in his post separation income is a triable issue. He argues that support should be based on this 2023 income of $707,845.
44While entitlement is not an issue, the case law establishes that entitlement determines location within the formula ranges or to justify departure from the ranges. Entitlement may be compensatory, non-compensatory, or a combination of the two concepts. Neither party has indicated that there is an existing domestic contract. The respondent has advanced a supposal support claim based on the compensatory framework. On the evidence before me, the respondent has a strong case for compensatory support. If so, there may be an argument that she is entitled to share in the applicant’s post-separation increase in income. However, my comments are not binding on any other judge who may determine the merits of any support obligation in the future.
IV. Conclusion
45Based on the overwhelming body of case law, and the circumstances of this case, it is my view, that the motions for child and spousal support are premature.
46If the parties sell the matrimonial home, or some other development presents itself which warrants the court revisiting the question, the respondent may renew her motion.
V. Disposition
47Order to go as follows:
i. On a without prejudice interim basis, the applicant shall continue to pay all the carrying costs for the matrimonial home, the parties’ joint debts, and the children’s expenses until the matrimonial home is sold.
ii. The applicant shall ensure that there are sufficient funds in the parties’ joint bank account to facilitate the payment of household expenses pending the sale of the matrimonial home.
iii. If the applicant does not advance the $50,000 to the respondent, which the respondent indicates was an agreement arrived at by the parties, the respondent may request an urgent case conference.
iv. Subject to paragraph 46 above, the respondent is at liberty to renew her motion once the matrimonial home is sold, if the parties are not able to agree on the quantum of child and spousal support thereafter.
Costs
48If the parties cannot agree on costs within ten business days, the applicant may file written his costs submissions, and within ten business days of receipt of the cost submissions, the respondent may file her costs submissions. The cost submissions are limited to three pages, plus the bills of cost, and any offers to settle.
A.P. Ramsay J.
Date of Release: January 27, 2026