Dad claims his income materially decreased after pandemic
The Ontario Divisional Court has set aside a judge’s decision dismissing a mother’s motion to strike or stay the father’s motion to change the final order governing his support obligations, to which both parties had consented in 2019.
In Zolnai v. Zolnai, 2026 ONSC 2808, the parties married in May 2008, separated in September 2013, and had three children who mainly lived with the appellant mother. The parties’ litigation commenced in 2014 and concluded through settlement in 2019.
A consent final order dated Aug. 15, 2019, addressed the respondent father’s support obligations. He paid retroactive spousal support of $28,000, out of the $52,000 total ordered.
However, the father failed to make certain payments under the support order. Specifically, he did not pay:
In October 2021, the father moved to change the order’s child support and spousal support provisions. He used Mar. 1, 2020 – the date of the commencement of the COVID-19 pandemic – as the effective date for his motion to change.
The father alleged that the pandemic decimated his music school, which materially decreased his income as of that date.
Under r. 1(8) of the Family Law Rules, O. Reg. 439/07, the mother moved to strike or stay the father’s motion to change because he was in breach of an outstanding court order.
In March 2025, the motion judge dismissed the mother’s motion and found it unreasonable to strike or stay the father’s motion to change.
In June 2025, the court granted the mother leave to appeal the March 2025 order. Disputing the claim of a material change in income, the mother asserted that the father was concealing his income.
The mother also moved to stay the proceedings until the father’s compliance with the support order, specifically by paying the arrears owing as of Mar. 1, 2020.
The Divisional Court of the Ontario Superior Court of Justice granted the mother’s appeal.
The court ordered the father to pay the equalization payment and arrears owing as of Mar. 1, 2020, as a condition of continuing his motion to change the support order. The court also directed the father to pay the mother’s costs of $7,000.
The court ruled that the motion judge misstated the tripartite test on whether to sanction the father at all, failed to grapple with the third part or mention it in his analysis, and failed to consider other remedies available under r.1(8).
The court addressed whether the case met the three-part test for whether to issue an order under r.1(8).
First, the court recognized that the parties did not dispute that the case met the first part of the test because there was non-compliance with the support order.
For the second part of the test, the court saw no exceptional circumstances in the evidence regarding the money owed under the support order as of Mar. 1, 2020, to justify exercising discretion by not sanctioning the father.
Disagreeing with the judge’s analysis on this point, the court did not consider the following exceptional circumstances:
The court pointed out that the father would still owe money even if he prevailed entirely on his motion to change. The court added that the father’s reduced business due to the pandemic did not excuse his failure to pay what he owed as of August 2019.
For the test’s third part, the court considered it reasonable and appropriate to allow the father to remedy his non-compliance with the support order and to participate in the proceedings.
The court noted that more than six years had passed since the issuance of the consent order and that the father technically owed the equalization payment since the parties’ separation in 2013.
