Karkulowski v. Karkulowski, 2015 ONSC 1057
COURT FILE NO.: FD897/13
DATE: 2015-02-18
SUPERIOR COURT OF JUSTICE – ONTARIO
FAMILY COURT
RE: Bozena Karkulowski, Applicant
AND:
Andrzej Karkulowski, Respondent
BEFORE: Heeney R.S.J.
COUNSEL: Dagmara Wozniak, for the Applicant
The Respondent, self-represented
HEARD: January 12, 13 & 14, 2015 at London
ENDORSEMENT
[1] The marriage between the parties was the Respondent’s third and the Applicant’s second. The Respondent was born in Poland but came to live in Canada in 1989. The Applicant is also Polish, and was still residing there when they met on the internet in June of 2006. They were married on December 1, 2007. The Applicant moved to Canada once visas were obtained, and she joined her new husband on March 14, 2008, along with her two children from her previous marriage.
[2] Unfortunately, the marriage did not last, and the parties separated when the Applicant moved out of the matrimonial home on February 13, 2010.
[3] The Respondent quit his job as a truck driver, and moved back to Poland on March 24, 2013, shortly after the matrimonial home was sold. The proceeds of sale remain in trust pending the outcome of these proceedings.
[4] He commenced divorce proceedings in Poland on April 9, 2013, shortly after his arrival there. However, a jurisdictional dispute followed. In his ruling of Feb. 28, 2014, Mitrow J. ruled that this court has jurisdiction to hear all claims advanced by the Applicant, including the granting of a divorce. The Polish court agreed that the proper forum for these proceedings was Ontario, and the Respondent’s divorce action has been stayed.
[5] On May 29, 2014 a divorce order was issued by Mitrow J. The corollary issues that remain to be determined in this proceeding are as follows:
Did the Respondent stand in the position of a parent to the two boys, such that he is liable to pay child support?
If he did, what are his child support obligations?
In determining the preceding issue, should income be imputed to the Respondent on the basis that he is intentionally unemployed?
What equalization payment is owing from the Respondent to the Applicant?
Is the Applicant entitled to spousal support, and if so in what amount?
Did the Respondent stand in the place of a parent to the two children:
[6] The children in question are Mateusz Karkulowski, born April 22, 1993, and Dawid Karkulowski, born June 24, 1995. They are children of the Applicant’s first marriage, which ended in 2000. The father has never paid child support, claiming an inability to pay, and has had no contact with the boys since 2006.
[7] The Divorce Act, s. 2(2), provides that a “child of the marriage” includes:
(b) any child of whom one is the parent and for whom the other stands in the place of a parent.
[8] If it is found that the Respondent stood in the place of a parent to the two boys, he would be liable to pay child support pursuant to s. 15.1 of the Act.
[9] In Chartier v. Chartier, 1999 707 (SCC), [1999] 1 S.C.R. 242 at paras 39 and 40, the Supreme Court of Canada outlined the factors to be considered in making this determination:
Whether a person stands in the place of a parent must take into account all factors relevant to that determination, viewed objectively. What must be determined is the nature of the relationship. The Divorce Act makes no mention of formal expressions of intent. The focus on voluntariness and intention in Carignan was dependent on the common law approach discussed earlier. It was wrong. The court must determine the nature of the relationship by looking at a number of factors, among which is intention. Intention will not only be expressed formally. The court must also infer intention from actions, and take into consideration that even expressed intentions may sometimes change. The actual fact of forming a new family is a key factor in drawing an inference that the step-parent treats the child as a member of his or her family, i.e., a child of the marriage. The relevant factors in defining the parental relationship include, but are not limited to, whether the child participates in the extended family in the same way as would a biological child; whether the person provides financially for the child (depending on ability to pay); whether the person disciplines the child as a parent; whether the person represents to the child, the family, the world, either explicitly or implicitly, that he or she is responsible as a parent to the child; the nature or existence of the child's relationship with the absent biological parent. The manifestation of the intention of the step-parent cannot be qualified as to duration, or be otherwise made conditional or qualified, even if this intention is manifested expressly. Once it is shown that the child is to be considered, in fact, a "child of the marriage", the obligations of the step-parent towards him or her are the same as those relative to a child born of the marriage with regard to the application of the Divorce Act. The step-parent, at this point, does not only incur obligations. He or she also acquires certain rights, such as the right to apply eventually for custody or access under s. 16(1) of the Divorce Act.
Nevertheless, not every adult-child relationship will be determined to be one where the adult stands in the place of a parent. Every case must be determined on its own facts and it must be established from the evidence that the adult acted so as to stand in the place of a parent to the child.
[10] The intention of the Respondent is clear and uncontradicted. Indeed, he admitted on cross-examination that he intended to make a new family when he proposed marriage to the Applicant and asked her and her sons to move with him to Canada. He admitted that it was his intention to be a father to the two boys.
[11] The Applicant testified that the engagement happened during the Easter season of 2007 when the Respondent came to visit. After he proposed, they sat down with the boys. The Respondent told the boys that he loves them as if they are his own sons, and wants them and their mother to come to Canada with him, where they will be taken care of. He also told them he wanted the boys to change their last names to his. They agreed, and this was done.
[12] Anna Szymanska is a long-time friend of the Respondent, who testified that the Respondent told her in 2007 that he had met a woman and wanted to get married. She felt that he was rushing things to get married so quickly, but he told her “he bought a house and wants to make a family with her and her children”.
[13] The Respondent’s words were carried into action. After the boys moved to Canada, he was of great assistance in arranging for their enrolment in school. He provided for all of their needs, and covered them on his benefits from work. They ate all meals together when he was not on the road, and went on family vacations together to many places. They behaved in all respects like a family.
[14] On the evidence of both boys, they had a good relationship. He was patient and taught them many things, particularly in relation to auto mechanics and yard work.
[15] The Respondent claimed the boys as his children as for purposes of his income tax returns.
[16] Of great significance is the Sponsorship Agreement that the Respondent signed in support of their visa application. It was signed by the Respondent on February 2, 2008. The document refers to each child as a “step-son” of the Respondent. In it, the Respondent promises to provide for the children’s basic requirements from the day they become permanent residences until the earlier of:
The last day of the period of 10 years following the day on which they become a permanent resident, or
The day on which they reach 25 years of age.
[17] A sponsorship agreement is a relevant factor to be considered by the court in determining whether a person stands in the position of a parent: see LMA v. PH, 2014 ONSC 1707 at para 70; and Johnson v. Johnson, 2005 ONCJ 325 at paras 75-76.
[18] In executing the Sponsorship Agreement, the Respondent effectively took upon himself the same obligation that a parent has toward his child: the obligation to provide for that child’s needs. This further reinforces the inference that he intended to treat these children as his own.
[19] The evidence is overwhelming that the Respondent stood in the place of a parent to the two boys. Indeed, there is no evidence that points to any other conclusion. I find, therefore, that the children are “children of the marriage” as defined by the Divorce Act.
Imputation of Income:
[20] As already noted, the Respondent was a truck driver, who operated his own truck as an owner/operator. His 2009 Income Tax Return shows gross income of $134,503, and net income of $30,066. He was, however, out of work during the latter part of 2008 and early 2009 when he was between employers, so those figures do not represent a full year’s income.
[21] His 2010 Income Tax Return shows gross income of $187,787 and net income of $34,473. His 2011 Return shows gross income of $195,727 and net income of $42,206.
[22] The Respondent did not produce his 2012 or 2013 Income Tax Returns, despite having been ordered on October 15, 2014 by Vogelsang J. to do so. The Financial Statement he filed estimated his 2012 income to be $40,000. The Applicant disputes this amount.
[23] The Respondent quit driving in March of 2013 and sold his truck, and moved back to Poland shortly thereafter. He claims that he was depressed as a result of the separation, and it affected his ability to concentrate on driving. He claims to have had four motor vehicle accidents during the final two years of driving, but provided no corroboration for this claim.
[24] He filed a Psychological Assessment authored by Dr. Cwynar, a psychologist in Poland, dated January 26, 2014. Dr. Cwynar had one visit with the Respondent, on January 14, 2014, relating to “mental strain caused by difficult family situation”. The report concludes that the symptoms shown by the Respondent are indicative of adjustment disorders – prolonged depressive reaction. The report does not provide an opinion as to the Respondent’s ability to work, nor does it provide a prognosis. It says that the Respondent “will remain under psychological care for the next six weeks”, but the Respondent testified that he has seen this psychologist only once and is not under any active care for any psychological illness.
[25] Indeed, the Respondent testified in cross-examination that the only reason he went to see the psychologist at all was that his lawyer told him to do so, so that he could obtain the report that he eventually filed. He never received any psychological care while in Canada, and has no intention of doing so in Poland. According to him, he knows what his problem is, and when this proceeding is resolved he will feel better. When it was put to him that he will resume working when he is feeling better, he responded “I certainly will”.
[26] One interesting point relating to the Psychological Assessment is that in the original Polish version, it states that the Respondent has been suffering his symptoms “for a few months”. This was not reflected in the translated version. The Respondent admitted that the original report did say that, and that he may well have said that to the psychologist. That is quite a different thing from his evidence at trial that he has been suffering from these symptoms for five years since the separation.
[27] Section 19(1)(a) of the Child Support Guidelines provides that a court may impute such amount of income to a spouse as it considers appropriate where the spouse “is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse.”
[28] In this case, the Respondent was able to work on a full-time basis from the separation in February, 2010 until March of 2013. He sought no treatment for any psychological problems throughout that period, nor did he seek any after he quit his employment and returned to Poland. His only reason for seeing a psychologist at all was for the tactical purpose of obtaining a report to file at trial. I am not prepared to accept his uncorroborated word that he was involved in four accidents, nor am I prepared to accept his bald statement that, if these accidents happened at all, they were caused by his mental and emotional condition. Such a conclusion would require expert evidence.
[29] He was certainly functioning at a high enough level of mental acuity to hire a lawyer within days of arriving back in Poland, and commence divorce proceedings there within two weeks of his arrival. That was a clear attempt to gain a tactical advantage over the Applicant so as to defeat the claims she was advancing in Canada. Had the Polish court granted a divorce, she would have been unable to pursue a spousal support claim in Canada: see the reasons for judgment of Mitrow J. dated Feb. 28, 2014, at 2014 ONSC 1222, para. 69.
Furthermore, the Petition for Divorce requests a “determination that the joint property of the spouses includes the savings in the amount of PLN 3,000 and that the shares of the Petitioner and the Respondent in the joint property are equal” as well as a “division of the joint property” such that each party would get half of those savings. In support of that claim, the Respondent asserts in Part II of the Petition that there is a joint property regime in place between the spouses and that the total amount of this property amounts to 3,000 zlotys owned by the Petitioner. It states “The spouses have no other joint property”.
[30] That assertion is simply false. There was, at the time this Petition was issued, almost $100,000 in trust arising from the sale of the matrimonial home, which was being held pending disposition of the Applicant’s claims. Had the Petition been allowed to proceed, the Applicant’s property rights may well have been disposed of through an award of 1,500 zlotys (approximately $500 CAD).
[31] That is not the only step that the Respondent took to avoid potential claims by the Applicant. Throughout the marriage, he owned a residential property in Poland. On December 30, 2014 he transferred title to that property to his mother, supposedly in satisfaction of debts he owed to her. He continues to reside there, however. It is no coincidence that this property transfer happened just two weeks before the trial of this action was scheduled to begin.
[32] The pattern that emerges is this: the Respondent decided that he was not going to pay what the Applicant was demanding. He fired his London lawyer and withdrew all offers to settle. He quit his job and relocated to Poland, and immediately began to take steps to defeat the Applicant’s claims and alienate his property.
[33] I am satisfied that his decision to quit his job was intentional and unreasonable. It was not justifiable by his reasonable health needs. If he was able to drive a truck for three years following the accident, I conclude that he was able to continue doing so after March of 2013. From all of the circumstantial evidence, I draw the inference that he quit his job because he had no intention of paying support as demanded by the Applicant in these proceedings, and chose to put himself in a position where he had no income with which to pay support.
[34] The Respondent’s statement during cross-examination is revealing: once these proceedings are over, he will feel better and will return to work. In other words, once the support claims are dealt with on the basis that he has no income with which to pay support, he will be free to return to the work force.
[35] I am satisfied that this is an appropriate case to impute income to the Respondent and to assess support as if he had continued working as a truck driver.
[36] What annual income figure should be used? I have already noted the net income figures reflected on the Respondent’s 2009 to 2011 Income Tax Returns. However, those numbers are not necessarily determinative. The Respondent admitted that he rarely eats in restaurants, and brings with him from home whatever food he will need on any given trip. His tax deduction for meals and entertainment, however, was $8,980 in 2009, $10,283 in 2010 and $10,216 in 2011. He was also able to write off a portion of his household expenses, to the extent of $2,038 in 2009, $1,688 in 2010 and $1,593 in 2011. These are expenses that would have been incurred anyway, and are not deductible by a salaried employee.
[37] Ms. Wozniak submits that I should attribute income of $75,000 per year to the Respondent, and that I should draw a negative inference from his failure to provide supporting documentation for all of his trucking expenses. In my view, that is excessive. The expenses are not unreasonable on their face for a trucking operation and do not cry out for supporting documentation for each expense claimed. I do accept that some adjustment is in order to discount the claim for meals and household expenses. In my view, a fair net income figure is $50,000 per year. Support will be assessed at that attributed income level for each year from 2010 forward.
Quantum of Child Support:
[38] Mateusz was almost 17 years of age at the date of separation. He was in grade 11. He finished high school in 2011 and started post-secondary education at Fanshawe College. He completed his three-year diploma in general business in 2014 and commenced an accounting degree program with Nippising University immediately thereafter. He will complete the formal program in September of 2015, but will be working for two or three years thereafter getting job experience, while taking further courses on-line. He will be paid during that period.
[39] His tuition at Fanshawe totalled $11,474 plus about $4,500 in books. He largely funded his education through OSAP, receiving $18,774 in total. Of that, $10,915 consists of grants that he does not have to repay, leaving a student loan of about $8,000.
[40] He got a job in 2012 to help pay for his education, and earned $6,435 that year. His 2013 income was $13,806 and he expects his 2014 income to be about the same.
[41] He was also able to manage his money well enough to buy a car. He testified that he was tired of taking the bus to school, and saved up enough money to buy a 2003 Volkswagen for $2,500. He pays for insurance and other operating costs from his employment income. His mother helps him out by providing him with a place to live and supplying all of his food.
[42] Dawid was 14 years old at the time of the separation and was in high school. He completed his high school diploma in January of 2014. He enrolled at Fanshawe College in the police foundations program starting in September, 2014 but left the program the following November due to depression. He intends to re-enrol next fall, but at present he is not attending school.
[43] He obtained his first job in 2011, and earned $180 that year. His 2012 income was $5,500 and his 2013 income was $15,863. He anticipates that his 2014 income may be somewhat less than 2013.
[44] Where a child is under the age of majority, the presumptive rule in s. 3(1) of the Guidelines is that the payor will pay the table amount according to his income. However, where the payor is a person who stands in the place of a parent for a child, that presumption does not apply. Section 5 of the Guidelines provides as follows:
- Where the spouse against whom a child support order is sought stands in the place of a parent for a child, the amount of a child support order is, in respect of that spouse, such amount as the court considers appropriate, having regard to these Guidelines and any other parent’s legal duty to support the child.
[45] The children’s father, Slawomir Markiewicz, has a legal duty to support the children, but has never done so. The probability is that he never will. Thus, support should be assessed on the basis that the only person besides the Applicant who will be contributing will be the Respondent.
[46] The only other enumerated factor to be considered under s. 5 is the table amount of support. The court is not directed to conduct a wide ranging inquiry into the means, needs or other circumstances of the child. That distinguishes s. 5 from s. 3(2) of the Guidelines, which applies when considering support for a child of the age of majority or over. That section reads as follows:
(2) Unless otherwise provided under these Guidelines, where a child to whom a child support order relates is the age of majority or over, the amount of the child support order is
(a) the amount determined by applying these Guidelines as if the child were under the age of majority; or
(b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child.
[47] While the children were under the age of 18 years, therefore, the appropriate order to be made is the table amount. The table amount of support for two children at the Respondent’s imputed income of $50,000 per year is $743 per month. That amount shall be payable by the Respondent commencing March 1, 2010.
[48] On April 22, 2011, Mateusz attained the age of 18 years, where the court has discretion as to the amount of support to be paid. However, he was still in full-time attendance at school, and began his studies at Fanshawe College in the fall of that year. He had no employment income. Thus, a consideration of his means, needs and other circumstances would favour a continuation of the table amount. Dawid continued to be under the age of 18 until his birthday on June 24, 2013, so the table amount would apply with respect to him as well.
[49] The income of the Applicant is also a relevant consideration when determining the appropriate amount of support for a child over the age of 18. She and the children survived on Ontario Works during the initial months following the separation in February of 2010. She obtained a part-time job in September of 2010, while still attending school on a part-time basis to learn English. Her total income in 2010 was $9,340.
[50] In May of 2011 she obtained a full-time job, and earned $21,502 in that year. Her 2012 income was $23,456, and her 2013 income was $23,435. Her T-4 slip for 2014 from Metropolitan Maintenance shows employment income of $22,835.
[51] The Applicant’s income was modest in the extreme, and would amount to barely enough to provide for her own needs. A consideration of the Applicant’s income would not support an argument that the appropriate amount of support should be lower than the table amount.
[52] I conclude that the appropriate amount of child support for the two children continued to be the table amount, up to June 24, 2013, which is when Dawid became 18 years of age.
[53] From that point forward, Dawid continued in full-time attendance at high school until January, 2014, doing his “victory lap”. However, he was employed and his earnings were substantially more than the table amount of child support would have amounted to, both for 2013 and 2014. It can fairly be concluded that he has been largely self-sufficient since he attained age 18. He never returned to school after January, 2014, except for a brief and unsuccessful stint in the fall of 2014.
[54] Mateusz has been in full-time attendance at school throughout. However, he has also been able to earn a substantial income in his own right, and can be considered to be largely self-supporting since mid-2013. He used some of his employment income to pay for his education, and has built up a student loan, but has also been able to afford to purchase and operate a car, which can be seen as somewhat of a luxury for a child in his position. He is to be given a great deal of credit for working hard to put himself through school without putting his mother into debt.
[55] As of September 2015 his formal studies will be concluded and he will be receiving an income as he completes his required work term before obtaining his accounting degree.
[56] Child support at $743/m from March 1, 2010 up to and including June 1, 2013 (40 months) amounts to $29,720. In my view, payment of that amount will fairly and appropriately discharge the Respondent’s child support obligations, past, present and future. No child support will be ordered beyond that date.
Equalization of Net Family Property:
[57] There is no dispute that the Applicant left the marriage with virtually no property other than her clothing and personal items. There is a dispute as to why that happened. She testified that the Respondent told her she was not to take anything when she left. She did take the computer but later returned it after the Respondent accused her of stealing it. The boys corroborated the fact that when they moved into their subsidized unit following the separation it was totally empty. They slept on air mattresses and borrowed furniture from friends until the Applicant was able to purchase basic furnishings, with help from Ontario Works.
[58] The Respondent alleges that he told the Applicant that she could take whatever she wanted from the matrimonial home, but that she chose to take nothing other than her personal belongings. Whether that is true or not is ultimately irrelevant. The relevant fact is that she did not, in fact, receive any property upon the separation.
[59] The Net Family Property Statement filed by the Applicant as ex. #12 shows that her Net Family Property is below zero. Pursuant to s. 4(5) of the Family Law Act, her Net Family Property must therefore be adjusted upward to zero. The figures in her Net Family Property Statement are unchallenged and are supported by corroborating documentation, and I accept them.
[60] As to the Respondent, his most recent Financial Statement sworn August 19, 2013 was filed as ex. #11. In that document, he calculates his own Net Family Property to be $47,205. Ms. Wozniak, for the Applicant, is prepared to accept the Respondent’s figures for purposes of the equalization calculation, with certain exceptions as reflected in ex. #12. I will deal with those exceptions in turn.
[61] The first difference between ex. #11 and ex. #12 is that the Respondent shows no value for household goods and furniture owned on the date of separation. The Applicant has inserted a figure of $1,500 in this regard in ex. #12. The Respondent testified that he filled a storage container with his belongings when he moved back to Poland, but had to give away most of the household contents because he had no room for them. Be that as it may, the fact remains that he had these contents in his possession on the date of separation. He could have sold them, or he could have given them to the Applicant in partial satisfaction of her property entitlement. The figure of $1,500 suggested by the Applicant is reasonable.
[62] Ms. Wozniak submitted that the joint account at TD Bank with the Respondent’s parents should be included in his NFP. However, the evidence is clear that the money in this account does, indeed, belong to the Respondent’s parents, and is generated from his father’s pension income. No adjustment will be made in this regard.
[63] The next difference between ex. #11 and ex. #12 relates to debts and liabilities on the valuation date. The Respondent claims income tax arrears from 2009 of $2,875 and from the first two months of 2010 in the amount of $1,238. The Applicant rejects these claims as being unsubstantiated by corroborating documentation. However, the Respondent’s 2009 Income Tax Return shows that when he filed his return in June of 2010, he had to pay $2,874.48 on account of outstanding 2009 taxes. This corroborates the assertion that this tax liability was outstanding on the date of separation, February 13, 2010.
[64] As to 2010, the Respondent’s Income Tax Return shows that the Respondent had to pay total taxes for the year in the amount of $7,431.72. There is nothing improper in prorating that tax liability so as to reflect the amount of taxes that would have accrued as of the date of separation. I accept the Respondent’s figures as correct in this regard.
[65] The only other difference between ex. #11 and ex. #12 relates to property owned on the date of marriage. The Respondent shows a claim for $50,000 relating to his Polish real estate, and claims an equal amount in the valuation date portion of his Financial Statement. The Applicant simply reflects the value of that property as “unknown”. Since these figures would be equal and offsetting in any event, the actual number assigned is irrelevant, so no adjustment is required in this regard.
[66] The only remaining item in dispute is the Respondent’s claim that he had savings of $1,313.50 on the date of marriage. The Applicant does not include this amount in ex. #12 because it is not corroborated by bank records. The law is clear that the onus is on the party claiming a deduction to prove it. Since the Respondent has not proven this deduction, it will be rejected.
[67] To sum up the above, I begin with the Net Family Property as calculated by the Respondent himself in ex. #11 of $47,205.17. This figure must be adjusted upward by $1,500 to reflect the household contents owned on the valuation date, and adjusted upward again by $1,313.50 to reverse the deduction for date of marriage savings. This produces a Net Family Property for the Respondent of $50,018.76. Pursuant to s. 5(1) of the Family Law Act, the Applicant is entitled to payment of one-half of the difference between her Net Family Property and that of the Respondent. Since her Net Family Property is deemed to be zero, that difference amounts to $25,009.
[68] Under s. 5(6) of the Family Law Act, the court has discretion to award more or less than one-half of the difference, having regard to certain factors. The one that is arguably relevant here is s. 5(6)(e), which reads as follows:
(e) the fact that the amount a spouse would otherwise receive under subsection (1), (2) or (3) is disproportionately large in relation to a period of cohabitation that is less than five years;
[69] Here, the period of cohabitation was only about two years. However, the court has discretion to make an adjustment under this subsection only where equalizing the net family properties would be “unconscionable”. That is a very high threshold. It has been defined as “harsh and shocking to the conscience” in McDonald v. MacDonald, 1997 14515 (ON CA), [1997] O.J. No. 4250 (C.A.) at para. 17.
It means considerably more than merely unfair or inequitable.
[70] The equalization payment is almost entirely generated by the equity in the matrimonial home. The Respondent owned this asset on the date of marriage, but because it was the matrimonial home, he is denied the credit that he would normally be entitled to for date-of-marriage property. That is because the definition of “net family property” in s. 4(1) of the Act states that a spouse may deduct the value of property owned on the date of the marriage “other than a matrimonial home”.
[71] While that might seem to some to be an unfair result, that is the statutory scheme that is in place, and it cannot be unconscionable to apply that statutory scheme: see Linov v. Williams, [2007] O.J. No. 907 (S.C.J.) at para. 36.
[72] The Applicant left her home in Poland and relocated to Canada to join the Respondent, where she knew he had purchased a home for all of them to start a new life as a family. She pulled her weight in the relationship, and took care of household care and management, including caring for what can only be described as an enormous garden. She made all of the Respondent’s meals for him, including packing food for him to take with him on his road trips.
[73] She did not work outside the home, which was a sore point with the Respondent and was a key factor that led to the breakdown of the marriage. However, she was fully engaged in attending school to learn English so that she could re-enter the work force once she was ready to do so.
[74] The equalization payment is not a particularly large one, and is not disproportionate in view of the Applicant’s contribution to the marriage. I am not persuaded that an award of $25,009 would be unconscionable, as that word has been interpreted in our courts.
[75] The Respondent shall, therefore, pay to the Applicant an equalization payment in the amount of $25,009.
Spousal Support:
[76] The final issue to be determined is the Applicant’s claim for spousal support.
[77] Section 15.2(4) of the Divorce Act states that the court shall take into consideration the means, needs and other circumstances of each spouse in making an order for spousal support, including the length of time the spouses cohabited, the functions performed by each spouse during cohabitation, and any order, agreement or arrangement relating to support of either spouse.
[78] In that regard, the length of cohabitation was exceedingly short, and amounted to about two years only. As already stated, the Applicant performed her role in the marriage as one would expect her to.
[79] I have already observed that the Respondent signed a Sponsorship Agreement in which he sponsored the permanent residency application of the Applicant and both children. In that agreement, he agreed to be responsible to provide for the Applicant for a period of three years following the day on which she became a permanent resident. Since they cohabited for two years before separating, that means that the Respondent agreed to provide for the Applicant for one additional year.
[80] Section 15.2(6) of the Act sets out the objectives of a spousal support order. The most pertinent for our purposes are that an order should recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; and, that an order should relieve any economic hardship of the spouses arising from the breakdown of the marriage.
[81] Here, the Applicant clearly suffered an economic disadvantage arising from the separation, in that she was deprived of the income stream that the Respondent was generating through his employment, and which provided for her needs and those of the children. She and the children suffered real hardship, particularly during the first few months following the separation when they were relying on public assistance and the help of friends to get by. However, that hardship will be significantly redressed through the retroactive award of child support that I have just made.
[82] The Applicant also argues that she suffered an economic disadvantage from the marriage itself, in that she became disentitled to continue receiving the government subsidy that she was receiving while she resided in Poland. It amounted to 600 zlotys per month, which she testified was, at the time, equivalent to about $350 to $370 per month. At current rates, it would be equivalent to about $200 per month. According to her evidence, she received this because the father of her two children paid no support. She lost this subsidy when she left Poland and began residing in Canada.
[83] While the wife submits that losing this subsidy represents an economic disadvantage flowing from the marriage, the fact is that it was replaced by the more generous child tax benefit that she became entitled to receive as a resident of Canada. That benefit amounted to $608/m following the separation, and she was heavily dependent upon it until the children became ineligible due to their age. There is no evidence as to how long the Polish child support subsidy would have been payable, but one may assume that it would not continue far into adulthood, if at all. I do not, therefore, give much weight to this submission.
[84] The Applicant has also benefitted from economic advantages as a result of the marriage. She has been given the opportunity to start a new life in Canada. She is engaged in the same kind of work here as she did back in Poland, but is paid substantially more. It does appear, though, that the cost of living in Poland is considerably lower than it is here. She now has a car, whereas she could not afford one back in Poland. She has continued to maintain her apartment in Poland, and could return there if she felt that life would be better there than in Canada.
[85] She has also been economically advantaged through the equalization payment that has just been ordered, which arose out of the separation. The Respondent has been economically disadvantaged by an equivalent amount. All or most of his savings from his years of truck driving were invested in the matrimonial home, and that equity became subject to equalization as described above.
[86] Taking all of the above into account, I conclude that the Applicant is entitled to spousal support, but only in a modest amount.
[87] The starting point for quantifying spousal support is the Spousal Support Advisory Guidelines. Ms. Wozniak provided a calculation, but it was based on the Respondent having imputed income of $75,000/yr. Ms. Wozniak submitted that the appropriate amount would be the mid-point lump sum of spousal support as calculated by Divorcemate of $22,430. I agree that a lump sum is appropriate in this case, as opposed to a monthly award. This is a situation where a clean break is warranted, for geographic reasons among others.
[88] I have prepared my own Divorcemate calculation using the imputed income figure of $50,000/yr arrived at above. The SSAGs suggest a spousal support award of between $223 and $523 per month, with a mid-point of $372 per month, for a minimum duration of one year and a maximum duration of four years. It calculates the appropriate range of lump sum spousal support at a low figure of $4,790, a mid-point figure of $8,226 and a high figure of $11,706.
[89] Given the very short duration of the marriage, and balancing the other factors and objectives discussed above, I am of the view that spousal support should be at the low end of the range. An order will go that the Respondent shall pay to the Applicant lump sum spousal support in the amount of $5,000.
Summary:
[90] For all of the above reasons, an order will go as follows:
The Respondent shall pay to the Applicant child support for the children Mateusz Karkulowski, born April 22, 1993, and Dawid Karkulowski, born June 24, 1995 in the amount of $743 per month from March 1, 2010 up to and including June 1, 2013, at which time his child support obligations shall terminate. The total amount of child support arrears generated by this order is $29,720;
The Respondent shall pay to the Applicant an equalization payment in the amount of $25,009;
The Respondent shall pay to the Applicant spousal support in the lump sum amount of $5,000;
All of these payments shall be paid forthwith from the monies held in trust to the credit of the Respondent arising from the sale of the matrimonial home.
[91] With respect to costs, I will accept brief written submissions from Ms. Wozniak within 15 days. The Respondent’s brief written responding submissions shall be served on Ms. Wozniak and forwarded to the court office within 15 days thereafter. Any reply submissions from Ms. Wozniak shall be served and filed within 10 days thereafter.
[92] For the information of the Respondent, I advised him during the course of the trial to avoid making any reference to settlement discussions or offers that were made during the course of this litigation. However, for purposes of his submissions as to costs, he is free to refer to such discussions and offers, since one of the considerations in determining liability for the legal costs of these proceedings is whether the parties behaved reasonably or unreasonably in the conduct of this litigation.
“T. A. Heeney R.S.J.”
Regional Senior Justice T. A. Heeney
Date: February 18, 2015