COURT OF APPEAL FOR ONTARIO

CITATION: Martynko v. Martynko, 2012 ONCA 395

DATE: 20120611

DOCKET: C53033

Rosenberg, MacPherson and Cronk JJ.A.

BETWEEN

Barbara Ann Martynko

Appellant

and

Albert Martynko

Respondent

Bernard T. Verbanac, for the appellant

Viola Nabrotzky, for the respondent

Heard and released orally: June 5, 2012

On appeal from the judgment of Justice P.B. Hambly of the Superior Court of Justice, dated September 28, 2010.

ENDORSEMENT

A. Background

[1] The parties commenced cohabitation on February 1, 1995 and were married on October 18, 1997. The appellant wife, Barbara Martynko, left the matrimonial home in mid-September 2002 to take up residence in a new home financed in part by the respondent husband, Albert Martynko. In the fall of 2003, contact was re-established between the parties but no reconciliation took place.

[2] In September 2006, the respondent commenced a divorce application. The appellant did not respond to that application. A divorce order was granted on May 24, 2007. In March of the following year (2008), the respondent remarried. He now resides with his new wife in a home they jointly acquired in Penetanguishine.

[3] On August 29, 2008 – almost six years after she left the matrimonial home – the appellant applied to the Superior Court of Justice for orders under the Family Law Act, R.S.O. 1990, c.F. 3 (the “Act”) for: (1) a division of net family property; and (2) spousal support.

[4] By order dated September 28, 2010, P.B. Hambly J. of the Superior Court of Justice dismissed the appellant’s application in its entirety. He ruled that her claim for an equalization payment (a division of net family property) was statute-barred, having been commenced outside the six-year limitation period prescribed by s. 7(3) of the Act, and declined in the circumstances to exercise his discretion under s. 2(8) of the Act to grant the appellant an extension of the limitation period. He also dismissed the appellant’s application for spousal support.

[5] The appellant appeals both aspects of the application judge’s ruling. In our view, her appeal must be dismissed for the following reasons.

B. Equalization of Property Claim

[6] The application judge concluded that the parties separated, “at the latest”, by the end of May 2002, although the appellant did not physically depart from the matrimonial home for about another four months. This critical factual finding is amply supported by the evidentiary record. In particular, the evidence before the application judge established that by the end of May 2002:

(1) the appellant had announced her intention to separate from the respondent;

(2) the parties had discussed and agreed to separate;

(3) the parties had moved into separate bedrooms, had stopped socializing together and had established separate bank accounts;

(4) the appellant had requested, and received, a total of $50,000 from the respondent to purchase a new home; and

(5) the appellant had made a down payment on a new home to be constructed over the summer of 2002.

[7] The appellant submits that the limitation period did not begin to run until the fall of 2003 because the parties were exploring the possibility of reconciliation during the period August to October 2003. We reject this submission.

[8] This contention is contrary to the application judge’s factual findings. He held that, while the parties had contact during the fall of 2003, there was no evidence that they ever explored the possibility of actually living together again or took any concrete steps in that direction after May 2002. The appellant has pointed to no evidence to the contrary.

[9] Accordingly, on this record, it was open to the application judge to hold, as he did, that a reasonable prospect of reconciliation in the summer or fall of 2003 had not been established on the evidence so as to postpone the running of the limitation period from the date of separation.

[10] We conclude that there was a firm evidentiary foundation for the application judge’s finding that the parties had separated before the summer of 2002. This finding is fatal to the appellant’s claim that her application for an equalization payment was commenced in time.

[11] Further, we see no basis on which to interfere with the application judge’s decision not to extend the six-year limitation period. Section 2(8) of the Act sets out the statutory pre-conditions for the extension of a time prescribed by the Act. The application judge held that the appellant failed to satisfy at least two of the three mandatory pre-conditions under s. 2(8): (1) her delay in commencing her application was not occasioned in good faith within the meaning of s. 2(8); and (2) in light of the respondent’s changed marital and financial circumstances by August 2008, the respondent would suffer substantial prejudice by reason of the appellant’s delay if the appellant’s application for equalization of net family property were permitted to proceed. We see no error in the application judge’s analysis of these issues.

C. Spousal Support Claim

[12] We reach a similar conclusion concerning the application judge’s dismissal of the appellant’s claim for spousal support. The appellant made no claim for spousal support in the divorce proceedings. While the appellant was entitled thereafter to seek support under the Act, she failed to establish any financial hardship or need for spousal support. As the application judge held:

The wife did not have a financial dependency on the husband during the marriage. She suffered no adverse financial consequences as a result of the marriage. She was employed at the commencement of the marriage, had the same employment when the parties separated and has the same employment now.

[13] As the application judge also noted, the parties’ disclosed incomes for the years 2002 to 2009 indicate that the appellant’s income in each year exceeded that of the respondent, often by a substantial amount. The application judge was not satisfied on the evidence adduced by the appellant that the respondent had failed to declare significant income, as alleged by the appellant. This was his call to make on the whole of the evidence.

[14] In all the circumstances, the application judge did not err in concluding, in effect, that the requirements for an order of spousal support set out under s. 33(8) of the Act were not met.

D. conclusion

[15] The appeal is dismissed. The respondent is entitled to his costs of the appeal, fixed in the total amount of $6,000.00, inclusive of disbursements and all applicable taxes.

“M. Rosenberg J.A.”

“J.C. MacPherson J.A.”

“E.A. Cronk J.A.”