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Osituyo v. Falana 2025 ONSC 6668

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BACKGROUND

The Applicant Father, Oluwole Adeniyi Osituyo and Respondent Mother Aderonke Esther Falana were married on September 25, 2020. They were married for two years prior to the birth of their child. They separated on December 13, 2022. They then were divorced on November 10, 2025. The Respondent Mother had taken one year of maternity leave after the birth of the child and she returned to work in December 2023. Post separation, the child resided primarily with the Respondent Mother, while the Applicant Father had parenting time on alternate Saturdays. The parties jointly owned the matrimonial home, which was encumbered by a mortgage. The Applicant Father allowed this mortgage to go into default and the bank had commenced foreclosure proceedings.

ISSUES

  1. What were the parties’ incomes for support purposes?
  2. What retroactive and going forward child support was owed by the Applicant father? What should be included as appropriate section 7 special or extraordinary expenses?
  3. Was the Respondent Mother entitled to spousal support and if so, in what amount?
  4. How was the deficit arising from the foreclosure on the matrimonial home to be addressed with regard to the occupation rent claim made by the Respondent Mother?

ANALYSIS

Determination of Applicant Father’s Income and Child Support

While the Applicant Father earned between $57,000 to $66,000 in the last several years, his income at trial was in question due to incomplete financial disclosure. As he did not provide fulsome financial disclosure and his spending habits suggested an income larger than he reported, an adverse inference was drawn agaisnt him. The Applicant Father’s income was thereby imputed to his reported 2023 income of $65,000 for the year of 2024. For the year of 2025, his income was imputed to be in the amount of $61,000 to account for the fact that he had periods of unemployment during the year. His ongoing child support obligation was thus calculated in the amount of $608 per month based on his $61,000 imputed income.

Regarding section 7 special or extraordinary expenses, the Court ruled that while daycare, swimming lessons and ballet expenses were presumptively included, the child’s first birthday party fees were not. As the Applicant Father had not agreed to bear the cost of the birthday party, he was not obliged to share in it.

The Respondent Mother’s Income and Spousal Support

Though the Respondent Mother had an income of $76,000 in 2024, it had decreased to $47,000 in 2025. Before the child was born, the Respondent Mother worked full-time. While she returned to the same workplace after her maternity leave, the position required travel and was not flexible enough for her childcare demands. After she received a negative performance review, she took another job at a salary of $47,000.

The Court determined that the Respondent Mother was not underemployed as her she was working to her full employment capacity at her new job, despite the lower salary. The evidence showed that she could not sustain her previous job with the responsibilities of being a single Mother and primary parent to a young child.

The Court further ruled that the Respondent Mother did not have an overarching compensatory spousal support claim since she was the primary income earner for over half her marriage. However, she did have a compensatory claim for the period where she took maternity leave. Despite this, no spousal support was payable, as the Applicant Father was paying the Mother’s share of the mortgage payments on the matrimonial home post-separation until September 2023. These payments were equal to or more than what she would be owed in spousal support.

Occupation Rent and the Foreclosure on the Matrimonial Home

The Respondent Mother made an occupation rent claim agaisnt the Applicant Father as he remained in the matrimonial home post-separation. He failed to pay the mortgage after April 2024, and which resulted in the bank foreclosing on the property.

Because the purpose of occupation rent is to balance inequities, the Court ruled that the foreclosure was highly relevant to the Respondent Mother’s claim. The Court commented that the occupation rent award should strive to minimize the unavoidable loss in financial equity that the Respondent Mother would suffer due to the foreclosure. The Respondent Mother did not provide comparable rent rates to determine the appropriate quantum of occupation rent owing. As such, the Court instead denied the Applicant Father the credit that would otherwise be due to him, for the carrying costs of the house which he did pay.

The Court further left open the possibility that there may be a claim for the unequal division of Net Family Property, in favour of the Respondent Mother, due to the Father allowing the home to be foreclosed on.

CONCLUSION

The issue of equalization and the potential claim for unequal division of Net Family Property, was reserved by the Court, with same being open to re-litigation. The net cost of child support arrears as well as the occupation rent resulted in a total payment in the amount of $14,599 owing from the Applicant Father to the Respondent Mother.