ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-06-058425-002
DATE: 2015-11-19
B E T W E E N:
IRENA KORNECKA
Self
Applicant
- and -
MARIAN KORNECKI
Self
Respondent
HEARD: November 17, 2015
REASONS FOR JUDGMENT
Van Melle, J.
[1] In January 2014, Mr. Kornecki brought a Motion to Change a Final Order granted by Justice Lemon on October 4, 2008. The Order was granted pursuant to Minutes of Settlement dated September 22, 2008. Pursuant to the Order Mr. Kornecki was to pay child support for Michael Kornecki, born March 4, 1997, in the amount of $800 per month based on Mr. Kornecki’s imputed income of $70,000.
[2] Mr. Kornecki was also to pay 65 per cent of Michael’s special expenses.
[3] This matter was before me for a Trial Management Conference on September 29, 2015. At that time I gave the parties today as a date for trial. Each party was given a Memorandum for Trial to the Self-Represented Applicant and Respondent. I also ordered that any documentation that was to be used for trial was to be exchanged in advance.
[4] In his Motion to Change, Mr. Kornecki asks to have his support reduced to $307 per month based on an income of $42,000 per year. He also asks that he not have to pay any special expenses “while he is unemployed due to disability, effective August 15, 2013.”
[5] It appears that today, at trial, his desire is to have his support obligation reduced to reflect his income from Toronto Social Services of $652 per month. He would also like a refund for what he says he has overpaid.
[6] The grounds for the Motion to Change were that Mr. Kornecki does not and never earned the income imputed to him by Justice Lemon; he suffers several medical problems which limit his ability to work on a full-time basis; additional support obligations have arisen which he must also address.
[7] Mr. Kornecki has paid no child support for Michael since June 13, 2014. His arrears are $13,750 as at November 1, 2015.
[8] Mr. Kornecki has another child Alexander from a more recent relationship, (although not with his current girlfriend, Anna Hanna), for whom he started paying $150 per month two months ago.
[9] Ms. Kornecka earns $38,480 annually.
[10] Ms. Kornecka states that Mr. Kornecki has a history of failing to disclose and of lying to the court. It is evident that documents that should have been disclosed were not disclosed.
[11] I accept the following:
In October, 2009 Mr. Kornecki sold a property located at 101 West Head Rd., in Toronto for $411,000. He purchased the property in 2007 for approximately $275,000.
In a December 31, 2009, Scotiabank Credit Application for a property located in Toronto at 76 Edna Ave., Mr. Kornecki stated that his income was $70,080 annually. Mr. Kornecki made a down payment of $97,500.00 on the purchase of the Edna property.
Mr. Kornecki’s mortgage on the Edna Ave. property was $227,500. The purchase price of the property was $325,000.
Mr. Kornecki renovated and sold Edna Ave. on April 2, 2012, for $520,000. For three years prior to sale, Mr. Kornecki rented the property for $30,000 per year.
On a 2011 mortgage application to Centum One Financial Group Inc., for the purchase of 29 Second Street, Etobicoke, the home where he now lives, Mr. Kornecki stated that his annual income was $115,000 - comprised of employment income of $85,000 and rental income of $30,000. In the mortgage application he also stated that he had savings with BNS of $110,000.
Mr. Kornecki purchased 29 Second Street on July 22, 2011, for $425,000. He received a loan from The Toronto-Dominion Bank in the amount of $425,000.
Mr. Kornecki’s Notice of Assessment for 2011 showed an income of $25,005.
Mr. Kornecki’s Notice of Assessment for 2012 showed an income of $24,212.
Mr. Kornecki’s Notice of Assessment of 2013 showed an income of $20,202.
10)Mr. Kornecki’s TD bank statements from December 20, 2011, to December 31, 2012, show deposits in the amount of $115,181.81.
11)Mr. Kornecki purchased 29 Second Street with a down payment of $106,250 in cash. The mortgage on the Second Street property was paid off after one year.
[12] In his Financial Statement sworn February 9, 2015, Mr. Kornecki deposes that his income is $7,872 per year ($656 per month) from Toronto Social Services.
[13] Mr. Kornecki claims that he is not working due to disability. In support of his disability he has filed a letter from Dr. David Palmer dated October 19, 2015. Dr. Palmer writes: “Marian is unable to do manual labour or heavy physical work due to his medical conditions [chronic back pain and knee pain]. He would be better suited for sedentary work that does not make his conditions worse. He would need to be able to sit and stand as needed to relieve back pain and stiffness.”
[14] Mr. Kornecki has asked for a review of a decision made by the Disability Adjudication Unit. In his document of February 10, 2015, he states:
I am requesting an internal review. I would like the Disability Unit to review my case. My health is getting worse. I continue to experience constant pain in all my joints, causing me difficulties with walking especially in the morning, and moving swollen and stiff fingers. On the top of that my lower back and my knees are giving up due to previous injury. I have a hard time with taking care of basic needs and rely on others to help me. I get sick so easily, I have hard time concentrating because of lack of sleep due to pain. My doctor did more tests and I have more problems. I am going to see a specialist rheumatologist, maybe she can help me. I have no benefits and no money for all treatments. [The letter refusing the benefit was not provided.]
[15] Over the last few years, Mr. Kornecki has filed other medical letters as well, but none indicate that he is unable to work. When asked about his attempts to find employment other than construction, he indicated that he would have to re-train, which he believed would take a year. He also states that at his age of 55, it would be too difficult for him to find other work.
[16] Mr. Kornecki has worked in the construction industry. Since separation he has purchased and fixed up three homes making a large profit on two. At the present time he resides, by himself, in a home in Etobicoke which he says is worth $500,000. He does not have a mortgage. In 2012 the Etobicoke home was listed for $799,000 although it did not sell. When asked how he arrived at a $500,000 value, he responded that the value is according to the municipal assessment for tax assessment purposes. In my view, the home is worth more than $500,000 but for the purposes of the Motion to Change, the fact that he resides, by himself, in a home that is worth at least $500,000 free and clear of encumbrances, is significant.
[17] Mr. Kornecki borrowed $25,400 from his girlfriend, Anna Hanna, to carry out some renovations to his current house. On May 26, 2013, he paid back $5,000; on October 5, 2013, he paid back $2,000 and on April 7, 2014, he paid back $8,000.
[18] Mr. Kornecki admitted that he has been on several trips. In November 2013, he went on a vacation with friends to Mexico. He said that the vacation was more than a week, probably 10 to 14 days. He testified that one of the friends paid for the vacation. In 2013, he also went to Cuba. He testified that his girlfriend, Anna Hanna, paid for everything. In 2015, he went to Poland for two weeks. According to Mr. Kornecki, Anna Hanna, paid for the trip.
[19] Both Kornecki sons, Wojciech and Michael testified.
[20] Wojciech is 29 years of age. He testified that he worked with his father in a construction company that they owned together. They had a falling out in 2011 as they were supposed to buy the Second Street property together with a view to renovating it. Wojciech and his wife would move in and rent part of the house to tenants. Apparently Wojciech was unable to qualify for the mortgage so his father withdrew from the agreement to own the house jointly. There was a suggestion as well, that Mr. Kornecki might have wanted the house in Wojciech’s name to protect it from any claims by Alexander’s mother.
[21] Wojciech and his father stopped working together four years ago. Wojciech confirmed the properties that his father had bought and sold since 2009. He also described the renovations to the properties.
[22] Wojciech testified that much of the construction business is a cash business. He testified that he earns $20,000 per month and that his father would earn the same.
[23] Wojciech testified that when he and his wife moved in August of 2014, his father came to help out by moving furniture and contents. According to Wojciech, Mr. Kornecki was not disabled at that time and was able to move furniture and boxes without difficulty. Mr. Kornecki testified that he had been asked to assist with the move because Wojciech required Mr. Kornecki’s truck and that Mr. Kornecki did not assist with the move itself. This was refuted by Wojciech who said he did not need a truck as he had his own.
[24] Wojciech testified that until last year he and his father would share tools. His father would require certain tools from time to time which Wojciech testified meant that his father was working. Had he not been working, he would not have required the tools.
[25] In January of 2015, Wojciech and his father decided not to share tools anymore and Wojciech went to his father’s home to drop off the last tool that belonged to his father. His father was not home, and Wojciech was able to enter the home with a key that was on the property. Wojciech noticed documents laid out on the dining room table and took photographs of the documents. He testified that all the handwriting was his father’s. Wojciech believes that his father is working for a company in his girlfriend’s name and pretending that he is not working.
[26] The photographs are Exhibit 2 to the trial. The first one is an invoice for $1,695 for a shower renovation. The second is an invoice for installation of firedoor locks. There is also a deposit slip for $1,660 to a TD Canada Trust Account. The slip shows that the account to which the deposit was made had a balance of $15,902.21 as at January 26, 2015.
[27] Mr. Kornecki testified that the documents were not his, but he had no explanation for how they came to be on his dining room table nor was he able to say to whom the documents belonged. His only response was to claim invasion of privacy because Wojciech had entered the house when Mr. Kornecki was not there and had taken the photographs which he had then given to Ms. Kornecka.
[28] Michael testified as well. He confirmed that he lives with his mother, is in his first term of Computer Programming at Sheridan College. This course will last 16 months. He plans to take Software Development once the Computer Programming Course is finished. The Software Development Course will take two years.
[29] Michael testified that he was supposed to see his father for Thanksgiving 2013 but this was cancelled as Mr. Kornecki went on vacation. Michael used to spend the month of August with his father. He no longer does, and sees his father on rare occasions. This means of course, that Ms. Kornecka is responsible for Michael’s costs all the time without the assistance that a month with Michael’s father would have provided in the past.
[30] Based on the material and evidence before me, I am not satisfied that there has in fact been a material change in circumstances. I find that Mr. Kornecki has misrepresented his situation. He does not seem to understand that child support is an obligation that takes priority to all other financial obligations. He does not understand that he cannot accumulate assets instead of supporting his children.
[31] Even if Mr. Kornecki is disabled and unable to work, (a premise that I do not accept), he lives in a house, by himself, worth at least $500,000 with no encumbrances. He manages somehow to meet the expenses of the house, but more than that, he has an asset which could very easily be converted to cash to meet his obligations. He could sell the house and buy a smaller house or he could sell the house and rent a place to live.
[32] I am satisfied that his behaviour in failing to live up to his child support obligations has caused financial hardship for Ms. Kornecka and Michael. Mr. Kornecki’s Motion to Change is dismissed. Mr. Kornecki is to continue to pay child support for so long as Michael is in full-time attendance at a post-secondary institution. He is to pay 65 per cent of Michal’s post-secondary costs that are not covered by the RESP. Although Ms. Kornecka was self-represented, she did retain counsel to help her with parts of the file. She also missed work causing her to lose wages. An order will issue awarding Ms. Kornecki costs in the amount of $2,500 payable forthwith.
Van Melle, J.
Released: November 19, 2015
COURT FILE NO.: FS-06-058425-002
DATE: 2015-11-19
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
IRENA KORNECKA
Self
- and –
MARIAN KORNECKI
Self
REASONS FOR JUDGMENT
Van Melle, J.
Released: November 19, 2015