Court File and Parties

Court File No.: FS-24-00046024-0000

Date: February 12, 2026

Superior Court of Justice - Ontario

Re: Diego Guerra, Applicant

And: Lisbeth Gamboa, Respondent

Before: C. Leach J.

Counsel: Lorne Jonathan Fine and Namrata Sood Joshi, for the Applicant Mariette Shamalyn Niranjanan, for the Respondent

Heard: November 13, 2025

Endorsement

[1] This is a motion by the Applicant husband for interim spousal support in the amount of $4,351/month, based on the Respondent wife's income of $153,397 and the husband's income of $46,547, retroactive to the date of separation on February 12, 2024.

[2] The husband's notice of motion also seeks an order striking the wife's pleadings for failing to comply with a disclosure order made by Sah J. on June 4, 2025; however, it appears that this issue has largely been resolved.

[3] The wife disputes the husband's entitlement to spousal support on compensatory and non-compensatory grounds and seeks dismissal of the motion with costs.

[4] For the reasons set out below, I find that the husband has not established that he has a prima facie entitlement to spousal support. Accordingly, this motion must be dismissed.

Background

[5] The parties separated on February 12, 2024, after 27 years of marriage. They have two adult children. The husband is currently employed full time as a graphic designer. He is also the sole proprietor of a company that provides printing services. According to his most recent financial statement, his gross income from all sources in 2024 was $71,612. The wife has a management role directing sales and marketing for a company and earned $163,000 in 2024. The quantum of temporary spousal support sought by the husband is based on a three-year average of the parties' incomes from 2022 through to 2024.

[6] The matrimonial home was sold in October 2025 and the net proceeds of the sale are being held in trust, except for an interim disbursement of $50,000, that was paid out to each party. The parties also co-own a vacation property in Mexico.

[7] As set out below, the parties fundamentally disagree on their respective roles during the marriage and the economic impacts of the marriage and breakdown.

Statutory Framework

[8] Subsections 15.2(1) and (2) of the Divorce Act, R.S.C., 1985 c. 3 (2nd Supp.), give the court jurisdiction to make an interim or final order for spousal support. Section 15.2(4) of the Divorce Act directs the court hearing a spousal support claim to take into consideration "the condition, means, needs and other circumstances of each spouse", including:

a. The length of time the spouses co-habited.

b. The functions performed by each spouse during cohabitation; and

c. Any order, agreement or arrangements relating to support of either spouse.

[9] Section 15.2(6) of the Divorce Act sets out the objectives of a spousal support order as follows:

Objectives of Spousal Support Order

15.2(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should:

a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown.

(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage.

(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and

(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

Does the husband have a prima facie entitlement to spousal support?

[10] A party claiming temporary spousal support has the onus of establishing that there is a triable (prima facie) case, in respect of both entitlement and quantum. In the event that a spousal support claimant cannot establish an arguable case for entitlement to spousal support, the motion for temporary relief should be dismissed even if the claimant has need and the other party has the ability to pay: Liddell-MacInnis v. MacInnis, 2021 ONSC 1787, at para. 65.

[11] Where contested facts need to be resolved, especially those connected to threshold questions such as entitlement, it becomes less advisable for a court to make an interim support order: Enyedy-Goldner v. Goldner, 2024 ONSC 1755, at para. 17; Robles v. Kuhn, 2009 BCSC 1163, at para. 8; Seifi v. Hanji, 2021 ONSC 3419, at para. 16; Politis v. Politis, 2015 ONSC 5997, at para. 14; and Wilkins v. Wilkins, 2018 ONSC 3036, at paras. 44, 78.

[12] I am not satisfied that the husband has established a prima facie case for entitlement. The only uncontroverted facts on this motion are that the parties were married for 27 years and that both parties worked throughout the marriage. On every other point, the record is conflicted: there is conflicting evidence about the roles the parties played during the marriage, the husband's past and current income, and his need for support pending trial.

Entitlement to Spousal Support

[9] Pursuant to the seminal cases of Moge v. Moge, [1992] 3 S.C.R. 813 and Bracklow v. Bracklow, [1999] 1 S.C.R. 420, there are three conceptual models under which entitlement to spousal support may arise. These models are summarized by Professor Carol Rogerson and Professor Rollie Thompson in the Spousal Support Advisory Guidelines: Revised User's Guide (Ottawa: Department of Justice, April 2016), at pp. 5-11. They are:

a. Compensatory claims: claims that are based either on the recipient's economic loss or disadvantage as a result of the roles adopted during the marriage or the recipient's conferral of an economic benefit on the payor without adequate compensation.

b. Non-compensatory claims: claims that are based on "need". "Need" can mean an inability to meet basic needs, but it has also been interpreted to cover a significant decline in standard of living from the marital standard. Non-compensatory support reflects the economic interdependency that develops as a result of a shared life, including reliance and expectation, summed up in the phrase "merger over time".

c. Contractual claims: claims that arise from formal domestic contracts but also implied or informal arrangements

Analysis

[13] On the basis of the evidence presented at this motion, I cannot find that the husband has a prima facie entitlement to spousal support on a compensatory basis. There are simply too many unresolved factual issues.

[14] The husband's evidence is that he was the one who cared for the children and the household throughout the marriage, which enabled the wife to attend college to improve her prospects for employment and pursue subsequent certifications to enhance her earning power. He deposes that she was the primary breadwinner, that he was financially dependent on her, and that he has suffered economic hardship as a result of the role he played in the marriage. The wife's evidence is that the husband worked full time throughout the marriage, maintained a steady income equivalent to or exceeding hers, and did not sacrifice his career to support hers. She claims that she was the primary caregiver for the children before and after work and that extended family members assisted with childcare, or the children were enrolled in daycare and after school programs.

[15] While the husband states that he was economically disadvantaged by his role in the marriage, his evidence does not detail why this was the case. He acknowledges that he worked throughout the marriage and that the children attended daycare and after school programs. He states generally that his caregiving responsibilities required him to decline or forego opportunities for training, overtime, travel-based roles, further studies and other career-advancing prospects, and that he was required to "take any job available during the time the children were in school or day care". He refers to the wife travelling for work, but otherwise there is nothing in his evidence that explains why he was unable to pursue career-advancing opportunities.

[16] The husband may very well be able to establish career loss when this matter is tried, but at this preliminary stage, given the conflicting evidence, a prima facie entitlement cannot be established.

[17] There is also conflicting evidence on factors that are key to the husband's non-compensatory claim. This was a long marriage. While it is usual for economic interdependency to develop over the course of a long marriage, it is not inevitable: Gerlitz v. Gerlitz, 2005 ABQB 621, aff'd 2005 ABCA 424. In this case, there is no uncontroverted evidence that the husband experienced a decline in his standard of living since separation or that he is experiencing economic hardship.

[18] The husband says that during the marriage, he resided in a big, beautiful house, but now he cannot afford to rent accommodations or purchase a home and is compelled to live with his parents. The wife says that he is in fact living with his new partner in a property that they purchased jointly – a property that is larger than the matrimonial home. The wife's evidence includes a report from a private investigator who observed the husband staying overnight with his partner for four nights over the course of the week. The husband's evidence includes affidavits from his mother and his partner stating that he does not reside with the partner but sleeps over from time to time. The husband acknowledges that he is on the title to his partner's house, but he says he owns 1% as a tenant in common and only co-signed the mortgage so that she could qualify. Given this conflicting and untested evidence, I cannot make findings regarding the husband's current living arrangements.

[19] There is also conflicting evidence about the husband's income before and after the separation.

[20] The husband states that until he was hired by his current employer, he earned his income through his small start-up company which never generated much income. He has produced an income valuation report which determined his income for support purposes from 2022 to 2024: $30,337 (2022), $34,999 (2023), and $74,305 (2024).

[21] In contrast, the wife states that the husband worked full time for a single company, Sign Source Solutions. By her account, he acted as an employee in all respects but was treated as a contractor from his own company for tax purposes. She states that he also did work for other clients who often paid in cash. As such, she does not accept the income valuator's assessment; she believes that the husband failed to fully disclose his assets and income to the valuator. In particular, she submits that he did not advise the valuator of his full-time position with Sign Source Solutions that was akin to an employee-employer relationship. She points to a credit application that the husband submitted to purchase a vehicle in 2021, in which he indicated a total yearly income of $108,000.

[22] As well, the husband provided a copy of the mortgage application he co-signed with his new partner in 2025, which states that his annual income is $95,866.50 (comprising of his salary plus approximately $34,00 in self-employment income). The husband states that this was an inflated figure that did not account for his business expenses, but the fact remains that he represented a financial situation on this application that satisfied the bank that he could be held jointly and severably liable for a mortgage of $880,000.

[23] In short, there is a real question as to the husband's past and current income which I cannot resolve on the evidence before me.

[24] The husband also states they enjoyed a very comfortable lifestyle during the marriage, including maintaining a vacation home in Mexico and taking six luxurious vacations between 2022 and 2024. The wife states that the husband has continued to travel with his new partner since the separation, including trips to Kingston and Mexico. The husband's response is that his mother gifted him the funds for the Mexico trip, that the Kingston trip was modest, and that the wife's social media accounts reveal that she took several luxurious trips in 2025. Again, the evidence is conflicted.

[25] I have reviewed the parties' most recent financial statements to determine whether they establish a clear discrepancy between the parties' financial situations, such that the husband should be compensated. The wife's debt is $190,259.50; her assets are $524,981. She has been able to increase her savings by about $120,000 since the date of separation. The wife has decreased her debt load since the date of separation, due to the sale of the matrimonial home and the discharge of two mortgages. The husband's assets amount to $316,401.40 and are considerably exceeded by his debts of $505,670.41. However, the bulk of this debt ($439,318.24) is comprised of the mortgage he co-signed with his new partner (both he and his partner depose that he does not contribute to the monthly mortgage payments or other carrying costs of the home.) He has been able to increase his savings by about $50,000 since the date of separation. While I accept that the wife's financial situation appears more stable, this does not seem to be a situation where the husband is depleting his capital to support himself.

[26] Section 15.2(6) of the Divorce Act sets mandatory criteria I must consider in making a temporary spousal support order. I am unable to make the necessary findings in relation to these criteria on the conflicted written record. I am not able to conclude that the husband suffered financial disadvantage during the marriage, or financial hardship as a result of the marriage breakdown, for which he should be compensated. It appears that there likely is some disparity between the incomes of the parties, but I am unable to assess the extent of that disparity or clearly link the disparity to a compensatory or non-compensatory basis for entitlement.

[27] Once the factual issues are resolved around the parties' respective roles in the marriage and the husband's income, the husband may very well be entitled to spousal support, including retroactive support. However, a trial will be required to determine these issues.

[28] Because I have found that a prima facie case for entitlement has not been made out, I need not address the quantum of temporary spousal support.

Disclosure

[29] The husband seeks an order striking the wife's pleadings due to her failure to comply with the June 4, 2025 Order of Sah J. This Order required the wife to provide the husband with a full response to his Request for Information dated September 25, 2024. The wife's evidence is that she has now responded to all the outstanding items. It appears that some of these responses were provided after the husband served his motion materials. In submissions at the motion, the husband's counsel acknowledged that the disclosure had been received, except for three items: the cash value of a universal life insurance policy; documentation of the debts the wife says she owes to the adult children; and evidence tracing one of the wife's assets to an inheritance she received during the marriage. If she has not provided responses for these items since the motion was heard on November 13, 2025, the wife is to provide the husband with her responses to these items within 14 days of the date of this order.

Orders

[30] For the reasons above, this court orders that:

a. The Applicant's motion for temporary spousal support is dismissed;

b. Unless she has done so since the motion was heard on November 13, 2025, the Respondent shall provide the Applicant responses to his requests for the following information:

    i. Documentation to substantiate the value of her Ivari Universal Life Policy (#9520) as of the date of separation.

    ii. Documentation to substantiate the debts allegedly owing to Nicole Guerra and Christopher Guerra as of the date of separation; and

    iii. Documentation to substantiate any excluded property.

Costs

[31] As the Respondent has been largely successful on this motion, she is presumptively entitled to her costs on a partial indemnity basis. The parties are encouraged to reach an agreement on costs. If they are unable to do so, the Respondent shall serve and file written submissions on or before February 26, 2026. The Applicant shall serve and file responding submissions on or before March 12, 2026. Written submissions shall comply with the requirements set out in r. 24(19) of the Family Law Rules.

Justice C Leach

DATE: February 12, 2026