Court File and Parties

COURT FILE NO.: F14-983 DATE: 20170302 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Jolanta Hamernik Applicant – and – Zbigniew Hamernik & Wladyslaw Hamernik Respondents

COUNSEL: Mark A. Simpson, for the Plaintiff Zbigniew Hamernik, acting in person No one appearing for the respondent Wladyslaw Hamernik

HEARD: December 1, 2, 3, & 4, 2015 and September 26, 27 & 28, 2016

REASONS FOR JUDGMENT

HEBNER J. :

[1] This is an application brought by Jolanta Hamernik (“the wife” or “Mrs. Hamernik”) against Zbigniew Hamernik (“the husband” or “Mr. Hamernik”) for the following:

a) An equalization of net family property with Mrs. Hamernik to receive more than one half of the difference between the parties’ net family properties pursuant to s. 5(6) of the Family Law Act, R.S.O. 1990, c. F.3; and

b) Lump-sum spousal support and related relief.

[2] Mrs. Hamernik also claims an order that Mr. Hamernik’s father, Wladyslaw Hamernik (“Mr Hamernik Senior”), holds a certain property in Poland in trust for the husband and that, therefore, the value of that property on the date of separation must be included in the husband’s net family property for equalization purposes and Mr. Hamernik Senior ought to be a judgment debtor to the applicant.

[3] Mrs. Hamernik commenced this proceeding by Notice of Application issued June 23, 2014. Mr. Hamernik filed an Answer. Interim orders were made as follows:

1. On September 7, 2014, Mitrow J. ordered, on consent, that Mr. Hamernik pay to Mrs. Hamernik spousal support in the sum of $2500 per month.
2. Disclosure orders were made against both parties by Vogelsang J. and Whitten J. on October 7, 2014 and January 19, 2015 respectively.
3. On June 9, 2015, Marshman J. ordered that Mr. Hamernik be restrained from depleting both his RRSP and deferred profit-sharing plans at Magna Sun Life Financial.

[4] The matter was on the trial list for the week of October 19, 2015. On October 16, 2015, Mr. Hamernik requested an adjournment of the trial. The adjournment was granted by Mitrow J. and the trial was adjourned to the fixed date of December 1, 2015.

[5] For reasons dated March 4, 2016, I ordered that Mr. Hamernik Senior be added as a party to these proceedings. The Notice of Application was amended and served on Mr. Hamernik Senior. Mr. Hamernik Senior did not file a responding pleading and declined to participate in the trial.

Background Facts

[6] Mr. and Mrs. Hamernik are both Polish immigrants. Mrs. Hamernik was born on February 22, 1969 and is currently 48 years of age. Mr. Hamernik was born on December 14, 1961 and is currently 55 years of age. Mr. Hamernik immigrated to Canada in 1987 and Mrs. Hamernik immigrated to Canada in 1989. They were married on December 28, 1991. They separated on April 30, 2012. They have an adult daughter, Kristina Hamernik, born May 26, 1992. Kristina is currently 24 years of age. Both of the parties have extended family in Poland. In particular, Mr. Hamernik’s parents live in Poland.

[7] The parties moved to London, Ontario from Mississauga shortly after they married. They jointly purchased a property known as 3–499 Teeple Terrace, London, Ontario. The Teeple Terrace property was sold in March 2000. Mr. Hamernik pushed for the sale of the property while Mrs. Hamernik resisted. Ultimately, Mr. Hamernik was successful in convincing Mrs. Hamernik to sell by telling her that they would live in an apartment for a year and then purchase a grander home with the proceeds of sale. The net proceeds of sale were $64,339.25. The parties lived in a rented apartment following the sale and remained there until their separation. The entire net proceeds of sale were paid to Mr. Hamernik. The grander home was never purchased.

[8] The parties had a somewhat traditional marriage in that Mr. Hamernik was the major breadwinner and Mrs. Hamernik was the spouse who took care of the home and the parties’ daughter. The marriage was non-traditional in the sense that the parties kept their finances separate.

[9] When Mrs. Hamernik immigrated to Canada, she did not have sufficient high school credits to obtain her equivalent to a secondary school diploma. She went to an adult education school, obtained her English as a second language course and obtained sufficient additional courses to receive her secondary school diploma or equivalent in June 1993. In September 1994 she started in a dental assistant program at Fanshawe College. Also around that time, Mrs. Hamernik started cleaning houses to earn some income. In January 1996, she graduated from Fanshawe College and in September 1996 she obtained work at the University of Western Ontario. She continued with her cleaning of homes on Saturdays. Mrs. Hamernik eventually obtained employment with Dr. Mochizuki where she stayed for approximately 14 years. Dr. Mochizuki retired in 2013 and Mrs. Hamernik found herself unemployed with only her housecleaning income.

[10] As for Mr. Hamernik, he was trained as an electrician. At the time the parties were married he was unemployed. When Mrs. Hamernik was expecting Kristina, Mr. Hamernik found work at Presstran Industries (“Presstran”) in St. Thomas. He worked there continuously until May 2015 when he voluntarily left his employment. His last day at Presstran was May 29, 2015.

[11] The parties’ incomes for the years 2011 to 2014 was as follows:

1. For Mrs. Hamernik: a) in 2011 she earned $31,920; b) in 2012 she earned $32,174; c) in 2013 she earned $42,787, which included a severance pay of $10,000; and d) in 2014 she earned $35,362.92, comprised of employment insurance of $11,340, spousal support of $12,500 and self-employment income cleaning homes of $10,522.92.
2. For Mr. Hamernik: a) in 2011 he earned $104,676; b) in 2012 he earned $88,296 and withdrew the sum of $23,739 from his employee profit sharing plan; c) in 2013 he earned $104,096; and d) in 2014 he earned $120,445.

Finances During Marriage

[12] In light of Mrs. Hamernik’s claim for a greater share of the parties’ net family property, and particularly her claim that Mr. Hamernik intentionally or recklessly depleted his net family property, it is necessary to review the parties’ finances and the use of their money during their marriage.

[13] Mr. and Mrs. Hamernik kept their finances separate. They did not maintain a joint bank account. Mrs. Hamernik’s evidence, which I accept, is that she paid for the groceries, Kristina’s expenses, household supplies and some of the utilities. She also paid her own personal expenses. Mr. Hamernik paid the mortgage, house insurance and taxes while the parties lived at the Teeple Terrace property and for the rent thereafter. He also paid for the balance of the utilities and some groceries.

[14] The nature of the parties separate finances is clear from the manner in which they dealt with the proceeds of sale of the Teeple Terrace home in 2000. The entirety of the net proceeds were paid to Mr. Hamernik and deposited into his account. Mrs. Hamernik believed that the proceeds were retained for the purpose of purchasing a larger home. Mr. Hamernik’s evidence was that he, instead, invested all of the sale proceeds in the stock market. He invested in “.com” stocks and the entire proceeds were lost. When asked why he didn’t share the net proceeds with Mrs. Hamernik, he said that she did not ask for her share. This is not surprising as Mrs. Hamernik believed that the proceeds were being retained in order to purchase a larger home.

[15] At the time of the sale of the Teeple Terrace home, Mrs. Hamernik had incurred credit card debt in order to meet her expenses. In 2001, she needed a new vehicle. She asked her husband to co-sign a loan so that she could obtain a vehicle. He refused to do so. Mrs. Hamernik was able to obtain a loan from another source in the amount of $15,000 and purchased a vehicle on her own. In his evidence, Mr. Hamernik said that he refused to co-sign the loan because he knew that his wife was in debt and he did not want to be responsible for his wife’s debt. When asked why he didn’t suggest his wife use her share of the proceeds of sale in order to purchase her vehicle, or reduce her debt, Mr. Hamernik said that Mrs. Hamernik needed to be responsible for her own debt as she had incurred it and allowing her to use her share of the proceeds to reduce her debt would defeat the purpose.

[16] Between the years 2000 and 2012, Mr. Hamernik depleted staggering amounts of money, much of it without satisfactory explanation. Some of the monies were lost due to Mr. Hamernik’s unwise investments in the stock market. However, a significant amount of monies were dissipated without an explanation by Mr. Hamernik as to what they were spent on. A summary of information, much of it gleaned from Mr. Hamernik’s income tax returns over the years, is as follows:

1. In the year 2000, Mr. Hamernik retained the proceeds of sale of the Teeple Terrace property totaling $64,339.25. On his tax return he reported a taxable capital gain of $40,629 and employment income of $71,684.
2. In the year 2002, Mr. Hamernik increased his line of credit by $11,500 over the course of the year. In the same year his employment income was $72,964.
3. In the year 2003, Mr. Hamernik had employment income of $83,186. In addition, he withdrew the sum of $26,600 from his RRSP.
4. In the year 2004, Mr. Hamernik had employment income of $89,620. In addition, he withdrew the sum of $24,278 from his RRSP.
5. In the year 2005, Mr. Hamernik’s employment income was $108,930. In addition, he withdrew $27,549 from his RRSP.
6. In the year 2006, Mr. Hamernik had employment income of $102,241. In addition, he withdrew $7,152 from his RRSP.
7. In the year 2007, Mr. Hamernik had employment income of $109,711. He withdrew monies from his RRSP and employee savings plan in the total sum of $13,524.
8. In 2009, Mr. Hamernik had employment income of $97,051. In addition, he withdrew the sum of $7,792.54 from his RRSP.

[17] Over these years, the parties lived in a rental apartment. Mr. Hamernik paid the monthly rent of $1,340, which sum included utilities. He contributed to the groceries and paid for his own personal expenses. He also made contributions to an RESP for Kristina. According to Mr. Hamernik, his average monthly expenses were $3,215. His income was more than sufficient to cover these expenses.

[18] Mr. Hamernik’s evidence was that he lost much of the money on the stock market. I do not accept that evidence. Mr. Hamernik did not provide any documentation to support this explanation. Mr. Hamernik also gave evidence to the effect that he incurred additional expenses for annual trips to Poland, gifts, RRSP contributions, and other discretionary type expenses. I have no doubt that these types of expenses were incurred. However, given the level of Mr. Hamernik’s income, there is no reasonable explanation for the loss of the Teeple Terrace sale proceeds and the extensive withdrawals from his RRSPs and employee savings plans over the years.

[19] Mr. Hamernik travelled to Poland every year throughout the marriage, most often during the summer months and sometimes in the fall months. Mr. Hamernik travelled to Poland either on his own or with Kristina. Early in the marriage, Mrs. Hamernik would travel with Mr. Hamernik. Both recall travelling to Poland together in 1993. Thereafter, Mr. Hamernik did not invite Mrs. Hamernik to accompany him. On one occasion in 1996, Mrs. Hamernik recalls asking whether she could travel to Poland with Mr. Hamernik for his annual trip. Mr. Hamernik’s response was that she could, but she would have to pay for her own travel expenses. Given Mrs. Hamernik’s limited income cleaning homes, she was unable to do so. It was Mr. Hamernik’s evidence that the annual trips to Poland were 5 to 7 weeks in duration. The cost of flights for he and Kristina were $1,600 and the cost of travel and leisure while in Poland totalled approximately $6,500.

[20] Mrs. Hamernik also travelled to Poland on her own on a couple of occasions, all of which she paid for by herself. This accounted for some of her accumulated debt.

The Polish Property

[21] Mr. Hamernik Senior attended from Poland, prior to being added as a party to this proceeding, in order to give evidence on a certain property located in Tylicz, Municipality of Krynica, Poland (“the Polish property”).

[22] Mr. Hamernik Senior and his wife reside in Poland where they owned and operated a bed and breakfast type hotel. In 2007 ownership of the hotel was transferred to Mr. Hamernik Senior’s son, Mr. Hamernik’s brother, Malik. Mr. Hamernik Senior obtained the Polish property in 2002 for the price of 26,000 Polish zlotys. At the time, the property consisted of a vacant building lot. The Polish property is located approximately 1 km away from Mr. Hamernik Senior’s hotel. In 2005, Mr. Hamernik Senior obtained a building permit and started construction of a home on the Polish property. According to Mr. Hamernik Senior’s evidence, the construction was completed sometime in 2013.

[23] Mr. Hamernik Senior transferred the property to Mr. Hamernik in 2012. The actual date of the transfer is unclear from a review of the English translation of the Polish notarial deed. It was transferred on either April 18, 2012 or October 5, 2012 (either immediately prior to the parties’ separation or approximately six months after the parties’ separation). Mr. Hamernik Senior made a point of stating in his evidence that the transfer occurred after the separation. The notarial deed indicates that the transfer was by way of gift. The parties identified the value of the property as 600,000 Polish zlotys.

[24] In May 2015, Mr. Hamernik left his job in Ontario and moved to Poland (this event will be described further below). On October 22, 2015, Mr. Hamernik Senior signed documentation revoking the gift of the property to Mr. Hamernik. The English translation of the document shows the title as “certified translation of revocation of a donation from Polish into English”. On October 27, 2015, Mr. Hamernik Senior and/or Mr. Hamernik signed a deed transferring the property from Mr. Hamernik to Mr. Hamernik Senior. In the deed, the value of the property is noted as 400,000 Polish zlotys.

[25] Mr. Hamernik Senior denies the suggestion that Mr. Hamernik provided funds for the construction of the home. In cross-examination, Mr. Simpson pressed Mr. Hamernik Senior on the financing arrangements for the construction of the home. Mr. Hamernik Senior insisted that he paid for all of the expenses, that he had paid in cash, that he did not keep track of the expenses, and that the cash came from his savings. He did not provide any documentation to substantiate his evidence. In cross-examination, Mr. Hamernik Senior continued to point out that the transfer of the Polish property took place after the parties’ separation. When pressed, he was unable to advise as to the distance between his hotel and the Polish property. He was unable to describe the route that one would have to take to drive to the Polish property from his house. He was unable to (or refused to) give evidence on who might currently be living in the house on the Polish property. He refused to give evidence as to the plans for the Polish property saying he has to “discuss it with his son”. When Mr. Simpson continued to press, Mr. Hamernik Senior’s responses were “I don’t really remember anything”.

Mr. Hamernik’s move to Poland

[26] Until May, 2015, Mr. Hamernik complied with the spousal support order of Mitrow J. He did so grudgingly. On April 5, 2015, he gave Mrs. Hamernik a spousal support check in the amount of $2,500 with the word “ztodziejstwo” noted on the front. Translated into English, the word means “thievery”. On May 7, 2015, Mr. Hamernik received an income tax refund of $13,711.41. Also in May 2015, Mr. Hamernik quit his job at Presstran voluntarily and moved to Poland. He did not advise his wife of his intention to quit his job and move to Poland. He had worked at Presstran for a total of 23 years. Mr. Hamernik has not paid support voluntarily since May 2015.

[27] Mr. Hamernik’s evidence was that he wished to return to Poland to live. In May 2015 he was employed at Presstran in St. Thomas as a technician. He requested a transfer to a sister company in Poland, Magna FormPol (“Magna”). Mr. Hamernik acknowledged that he had been employed at Presstran in St. Thomas for 23 years. He was entitled to extended health and dental benefits, life insurance, vacation and sick days, and took part in a profit-sharing plan. His annual income was well over $100,000 with increases every year. He acknowledged that, overall, Presstran was a good place to work. Once he decided to transfer, the transfer went very quickly. He did not advise his wife about his intentions. He moved immediately to Poland and began employment at Magna on June 1, 2015. He had a contract for work until August 31, 2015. Essentially, Mr. Hamernik was back to square one with his employment and needed to pass the usual three month probation period. His starting salary was 4000 Polish zlotys per month. The translation to Canadian dollars is roughly $1,300 per month, or $16,000 per year.

[28] Mr. Hamernik did not pass the probation. His employment was terminated at the end of August 2015. At the time of the trial, Mr. Hamernik had not obtained employment. He was working on jobs for cash. He could not (or would not) provide any evidence on the income he received from the cash jobs.

[29] In his Answer filed with the court, at paragraph 35, Mr. Hamernik said, “I have no intention of quitting my job and moving to Poland as job prospects in that country for someone my age are slim.” The Answer was signed July 31, 2014. When that statement was put to Mr. Hamernik in cross-examination, he indicated that he had changed his mind. He has now decided that he wishes to spend the rest of his life in Poland. Mr. Hamernik does not intend to ever return to Canada. He said that his parents have asked him to look after them and he wants to retire in Poland and live there.

Equalization of Net Family Property

[30] The Family Law Act, s. 4(2) defines “property” as follows:

“property” means any interest, present or future, vested or contingent, in real or personal property…

[31] Mr. Simpson urges me to find that Mr. Hamernik has an interest in the Polish property and the value of that interest ought to be included in his net family property for equalization purposes.

[32] In the event the transfer of the Polish property to Mr. Hamernik took place on April 18, 2012, then it is clearly property owned by Mr. Hamernik on the date of separation. In the event the transfer of the Polish property took place on October 5, 2012, the issue becomes whether Mr. Hamernik had an interest in the property on the date of separation other than by reason of legal ownership. For reasons which follow, I find that regardless of the date that Mr. Hamernik acquired legal ownership to the Polish property, he had an interest in the Polish property on the date of separation and, accordingly, the value of the property on that date must be included in his net family property for equalization purposes.

[33] In Rawluk v. Rawluk, [1990] 1 S.C.R. 70 the court made it clear that “property” as defined under s. 4(1) includes a beneficial interest arising from any type of trust. In that case the issue was whether the constructive trust remedy could be applied between the spouses prior to determining the equalization of net family property. The facts are different in this case. Nonetheless, it is instructive to review the court’s conclusion at p. 97 of the decision:

The review of the cases decided by this court from Murdoch v. Murdoch, supra, to Sorochan v. Sorochan, supra, demonstrates the importance that has been attached to the use of the remedy of constructive trust to achieve a division of property that is as just and equitable as possible. A marital relationship is founded on love and trust. It brings together two people who strive and sacrifice to attain common goals for the benefit of both partners. When it is terminated and acquired assets are to be divided, then in this of all relationships the concept of fairness should predominate in making decisions as to ownership.

[34] I do not accept the evidence of Mr. Hamernik Senior in terms of the ownership of the Polish property. I find that Mr. Hamernik is the beneficial owner of the property. The lot was purchased in 2002, the same year that Mr. Hamernik withdrew $11,500 from his line of credit. I find that Mr. Hamernik used these funds to purchase the Polish property in his father’s name. I find that Mr. Hamernik’s annual trips to Poland, while for the purpose of vacation and visiting with family, were also for the purpose of supervising the construction of a house. I find that the annual withdrawals that Mr. Hamernik made from his RRSPs in 2003 and the years following were funds that were used to finance the construction of the house on the Polish property. Mr. Hamernik Senior considers the property to belong to Mr. Hamernik, evidenced by his lack of knowledge of the property and plans for its use. The transfer of the property back to Mr. Hamernik Senior occurred on October 22, 2015, just six days after the adjournment of the trial was granted. I find that the timing of the adjournment request was strategic. Mr. Hamernik and his father did not want to embark on the trial while the Polish property remained registered in Mr. Hamernik’s name.

[35] I find that Mr. Hamernik invested much of his retirement funds in the Polish property. Based on all of the evidence, I find that Mr. Hamernik was the sole beneficial owner of the Polish property at the date of the parties’ separation, regardless of the date of the actual transfer, and the value of that property on the date of separation will be included in Mr. Hamernik’s net family property for equalization purposes.

[36] That is not the end of the analysis with respect to the Polish property. Having found that Mr. Hamernik owned the property on the date of separation, the next question is whether he is entitled to an exclusion of the value of that property by reason of a claimed gift. A “gift” is defined in the Oxford English dictionary as “a thing given willingly to someone without payment”. Given my finding that Mr. Hamernik invested much of his retirement savings into the Polish property, I cannot find that it was given to him without payment. In fact, the opposite is true. I find that he owned the Polish property by reason of his contributions towards the purchase of the lot and the construction of the home on the property. Accordingly, Mr. Hamernik is not entitled to an exclusion for the value of the Polish property from his net family property.

[37] The value of the Polish property on the date of separation was 600,000 Polish zlotys, according to the notarial deed dated either April 18, 2012 or October 5, 2012. The exchange rate on the date of separation was 0.3133. Accordingly, in Canadian dollars, the value of the Polish property on the date of separation was $187,980. I find that this figure must be included in Mr. Hamernik’s net family property for equalization purposes.

[38] The balance of the figures in the parties’ respective net family property statements are uncontroversial. With the exception of the value of the Polish property and the appropriate deduction for income tax from the parties RRSPs and pension plans, the net family property statements of the parties are virtually identical. My calculation of the equalization of net family property is attached hereto as schedule A. According to my calculations, Mr. Hamernik must pay to Mrs. Hamernik an equalization payment of $141,417.44. Given that the equalization payment is less than the value of the Polish property, legal title to which is in the name of Wladyslaw Hamernik, it seems to me that the full amount of the equalization payment must be enforceable against both Zbigniew Hamernik and Wladyslaw Hamernik.

Family Law Act s. 5(6)

[39] Section 5(6) of the Family Law Act reads as follows:

The court may award a spouse an amount that is more or less than half the difference between the net family properties if the court is of the opinion that equalizing the net family properties would be unconscionable, having regard to,

(a) a spouse’s failure to disclose to the other spouse debts or other liabilities existing at the date of the marriage;

(b) the fact that debts or other liabilities claimed in reduction of a spouse’s net family property were incurred recklessly or in bad faith;

(c) the part of a spouse’s net family property that consists of gifts made by the other spouse;

(d) a spouse’s intentional or reckless depletion of his or her net family property;

(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;

(f) the fact that one spouse has incurred a disproportionately larger amount of debts or other liabilities than the other spouse for the support of the family;

(g) a written agreement between the spouses that is not a domestic contract; or

(h) any other circumstance relating to the acquisition, disposition, preservation, maintenance or improvement of property.

[40] Mrs. Hamernik has claimed an amount that is more than half the difference between the parties net family properties pursuant to s. 5(6) of the Family Law Act. She bases her claim on the following:

1. Mr. Hamernik took the entire proceeds of sale of the Teeple Terrace property.
2. Mr. Hamernik withdrew significant funds from his RRSP and retirement assets between 2003 and 2009.
3. Mr. Hamernik withdrew large amounts of cash from his bank accounts during the years 2011–2014 without satisfactory explanation as to what the money was used for.

[41] Mrs. Hamernik takes the position that, cumulatively, these events constitute Mr. Hamernik’s “intentional or reckless depletion of his net family property” within the meaning of section 5(6)(d) of the Family Law Act.

[42] In Serra v. Serra, 2009 ONCA 105, 93 O.R. (3d) 161, the Court of Appeal addressed the test for “unconscionability” commencing at para. 47 as follows:

In this regard, the threshold of “unconscionability” under s. 5(6) is exceptionally high. The jurisprudence is clear that circumstances which are “unfair”, “harsh” or “unjust” alone do not meet the test. To cross the threshold, an equal division of net family properties in the circumstances must “shock the conscience of the court.

[43] The Court of Appeal quoted the following comments of Jennings J. in Merklinger v. Merklinger, (1992) 7539 (ONSC):

Section 5(6) of the Family Law Act, 1986 permits me to order an unequal allocation of value if to do otherwise would be unconscionable. The legislature deliberately chose to strictly define the severity of the result of the application of s. 5(1) which must pertain before there can be any judicial intervention. The result must be more than hardship, more than unfair, more than inequitable. There are not too many words left in common parlance that can be used to describe a result more severe than unconscionable.

[44] The withdrawal of funds from Mr. Hamernik’s RRSPs and retirement assets and the numerous cash withdrawals from his bank account are consistent with his investment in the Polish property. I have found that Mr. Hamernik owned the Polish property on the date of separation for equalization purposes. I have included the value of the Polish property on the date of separation in Mr. Hamernik’s net family property.

[45] The Court of Appeal in Serra v. Serra, at para. 37, set out the steps to be taken when following a s. 5(6) analysis:

The court must first ascertain the net family property of each spouse, by determining and valuing the property each owned on the valuation date (subject to the deductions and exemptions set out in s. 4). Next, the court applies s. 5(1) and determines the equalization payment. Finally – and before making an order under s. 5(1) – the court must decide whether the equalization of net family properties would be unconscionable under s. 5(6) having regard to the factors listed in paragraphs 5(6)(a) through (h).

[46] Having determined that the value of the Polish property must be included in Mr. Hamernik’s net family property and having calculated the equalization payment on that basis, I cannot find that the equalization of net family properties would be unconscionable.

Spousal Support

[47] Mr. and Mrs. Hamernik were married for 21 years. They raised a daughter together. Mrs. Hamernik contributed more than her fair share towards the parties’ household and their mutual support. Mr. Hamernik was able to further his career and his personal interests as a result. Mrs. Hamernik has made a claim for spousal support under s. 33 of the Family Law Act. In my view, Mrs. Hamernik is entitled to spousal support.

[48] Mrs. Hamernik requires support in the nature of transitional support. Her evidence is that she is trained as a dental assistant and there are no jobs available for her in that field. Even if she were to find a job as a dental assistant, her income would not improve to the point where she could be self-sufficient. Her plan is to obtain training as an RPN (registered practical nurse), where she could earn between $38,000 and $59,000 per year. The college program she will need to take is a two-year program. She needs sufficient support so that she can proceed with this plan and obtain employment.

[49] Mrs. Hamernik has requested lump-sum spousal support based on imputed income. In Sharpe v. Sharpe, Campbell J. set out the factors that a court should consider in deciding whether it is appropriate to order lump-sum spousal support rather than periodic payments. The factors listed included the following that have relevance to this case:

1. Where difficulties in enforcing periodic payments are anticipated.
2. The possibility that the payor’s livelihood is or will become precarious.
3. The availability of sufficient assets from which a lump sum could be paid.
4. Where the payor is about to leave or has left the jurisdiction.
5. The desirability of terminating personal contact between the parties.
6. The disparity in financial positions of the parties.
7. The dependant spouse taking job retraining or upgrading courses.

[50] Mr. Hamernik deliberately, unilaterally, and voluntarily left his secure, long-term, lucrative employment at Presstran in St. Thomas. He did so without regard to his obligations to Mrs. Hamernik. He has left the jurisdiction. I find that Mr. Hamernik took the steps he did in an attempt to avoid his support obligations. By order of Marshman J. dated June 9, 2015, Mr. Hamernik’s remaining pension and retirement assets in Canada were secured and protected. Accordingly, there are assets within the jurisdiction that Mrs. Hamernik can have regard to in order to satisfy the claim for lump-sum spousal support. Mrs. Hamernik has satisfied the court that many of the factors listed in Sharpe v. Sharpe are present in this case.

[51] Mr. Simpson has provided several calculations for lump-sum spousal support. Mr. Hamernik is currently 55 years of age. Mr. Simpson suggests that lump-sum support be based on the average of Mr. Hamernik’s last three years of full-time income at Presstran. The imputed income to Mr. Hamernik would be $112,192 per annum. Mr. Simpson suggests that income be imputed to Mrs. Hamernik in the sum of $40,000. I accept these suggestions. Certainly, Mr. Hamernik has shown that he is capable of earning income of $112,000 per year.

[52] Mr. Simpson suggests that the lump-sum spousal support be based on the duration of 7 years, 6 months to cover the time period from January 2017 up to and including June 2023. This would assume payment of support until Mr. Hamernik is 62 ½ years of age. I accept those submissions as well. The lump-sum spousal support calculation is attached hereto as schedule B. I find the appropriate amount to be the midpoint of the low range, namely $106,420.

Retroactive Spousal Support

[53] Mr. Hamernik did not pay spousal support to Mrs. Hamernik from the date of the parties’ separation in April 2012 to July 2014, a period of 27 months. Mrs. Hamernik has requested retroactive support to cover this time. There is no evidence that spousal support was requested prior to the issuance of the application in June 2014. Immediately thereafter, the order of Mitrow J. was in place requiring spousal support in the sum of $2,500 per month, commencing August 1, 2014.

[54] The factors for the determination of the commencement date for spousal support are set out by Pazaratz J. in the case of Scozzaro v. Scozzaro, 2015 ONSC 2392, at para. 42:

The commencement date for spousal support is discretionary. (Kerr v. Baranow, 2011 SCC 10 (S.C.C.)); MacKinnon v. MacKinnon (2005), 75 O.R. (3d) 175 (Ont. C.A.)). In assessing a claim for spousal support prior to the commencement of the proceeding, the court may consider:

(a) The extent to which the Applicant established past need and the payor's ability to pay;

(b) The underlying basis for the ongoing support obligation;

(c) The requirement that there be a reason for awarding retroactive support;

(d) The impact of a retroactive award on the payor and whether such will create an undue burden or effect a redistribution of capital;

(e) The presence of blameworthy conduct by the payor;

(f) Notice of intention to seek support and negotiations to that end;

(g) Delay in proceeding and an explanation for the delay; and

(h) The appropriateness of a retroactive order pre-dating the application.

[55] Mrs. Hamernik’s need and Mr. Hamernik’s ability to pay during the time period in question are clearly established. The underlying basis for the lump-sum support obligation is both need and compensation. During the period of April 2012 to July 2014, Mr. Hamernik was aware of his wife’s limited means and did nothing to try to alleviate her difficulties. In respect of blameworthy conduct on the part of the payor, although this conduct did not take place during the period in question, I note that Mr. Hamernik received an income tax refund of $13,711.41 in May 2015, the same month he terminated his support payments. In my view there ought to be some payment of retroactive support for Mrs. Hamernik.

[56] Mr. Simpson, on behalf of Mrs. Hamernik, submits that the appropriate lump-sum amount is $36,579 based on the parties’ incomes between 2012 and 2014. This amount ought to be reduced in light of the absence of evidence that Mrs. Hamernik notified Mr. Hamernik of her claim prior to the issuance of her application. In my view, the appropriate lump-sum amount to cover the time period of April 2012 to July 2014, taking into account all of the factors listed above and the fact that the amount will not be taxable in Mrs. Hamernik’s hands, is $20,000.

Life Insurance

[57] Mrs. Hamernik has requested an order that Mr. Hamernik be required to obtain life insurance to secure his support obligations. The Family Law Act, s. 34(1)(i) provides that in an application for spousal support the court may make an order “requiring that a spouse who has a policy of life insurance as defined under the Insurance Act, R.S.O. 1990, c 1.8, designate the other spouse or a child as the beneficiary irrevocably”. Mr. Hamernik’s evidence is that he does not have any life insurance. Accordingly, I am unable to make an order under this section.

Divorce

[58] Mr. Hamernik has requested a divorce by way of counterclaim in his Answer. The marriage certificate was produced and marked as an exhibit in this matter and the appropriate evidence has been provided. Accordingly, I order that the parties be divorced.

Disposition

[59] For the reasons set out herein, I order as follows:

1. The divorce order will issue in the usual form.
2. The respondents, Zbigniew Hamernik and Wladyslaw Hamernik, shall pay to the applicant, Jolanta Hamernik, an equalization payment in the sum of $141,417.44.
3. The respondents, Zbigniew Hamernik and Wladyslaw Hamernik, shall pay to the applicant, Jolanta Hamernik, prejudgment interest on the equalization payment at the Courts of Justice Act, R.S.O. 1990, c. C.43 rate from April 30, 2012 to the date of judgment herein.
4. The interim order of Mitrow J. requiring the respondent, Zbigniew Hamernik, to pay spousal support to the applicant in the sum of $2,500 per month shall be terminated effective December 31, 2016.
5. The respondent, Zbigniew Hamernik, shall pay to the applicant, Jolanta Hamernik, lump-sum spousal support in the sum of $106,420.
6. The respondent, Zbigniew Hamernik, shall pay to the applicant, Jolanta Hamernik, retroactive spousal support in the sum of $20,000.
7. The remaining RRSP, pension and/or deferred profit-sharing plans of the respondent, Zbigniew Hamernik, protected by the order of Marshman J. dated June 9, 2015 (attached as schedule C) shall be vested in the applicant absolutely, with 80% of the current value of those assets to be credited against any arrears of support owing under the Mitrow J. order, the said respondent’s lump-sum spousal support and retroactive spousal support obligations. Any remaining after-tax value (identified as 80%) shall be credited against the equalization payment.
8. The parties shall be entitled to provide written submissions on costs, to include a costs outline and any relevant offers to settle, according to the following timetable: a) the applicant shall provide her written submissions within 20 days; b) the respondent, Zbigniew Hamernik, shall provide his written submissions within 40 days; c) the applicant shall provide any reply submissions within 50 days.

Original signed “ Hebner J. ”

Pamela L. Hebner Justice

Released: March 2, 2017

SCHEDULE A

Hamernik Net Family Property

Husband

Total Assets

Polish property: $187,980.00 2006 Volkswagen Golf: $6,000.00 Magna RRSP: $57,444.60 Magna Plan A deferred profit-sharing plan: $59,780.86 Magna Plan B deferred profit-sharing plan: $6,780.37 Savings account: $1,433.50 TFSA: $102.72 Total: $319,522.05

Total Deductions and Exclusions

Credit Card: $886.00 Notional tax on RRSPs and profit sharing plans at 20%: $24,801.17 Motor vehicle owned on date of marriage: $11,000.00 Total: $36,687.17

Husband's Net Family Property: $282,834.88

Wife

Total Assets

2008 Mazda: $7,500.00 RRSPs: $20,497.47 Savings: $719.66 Chequing account: $519.21 Total: $29,236.34

Total Deductions and Exclusions

Unsecured line of credit: $18,800.00 Credit card Visa: $1,450.94 Credit card MasterCard: $6,858.08 Credit card American Express: $3,032.70 Credit card Visa: $13,330.86 Scotiabank car loan: $4,271.41 Notional tax on RRSPs at 20%: $4,099.49 Total: $51,843.48

Wife's Net Family Property: $0.00

Equalization of Net Family Property

($282,834.88 - $0)/2 = $141,417.44

SCHEDULE B

SCHEDULE C

COURT FILE NO.: F14-983 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Jolanta Hamernik Applicant – and – Zbigniew Hamernik & Wladyslaw Hamernik Respondent REASONS FOR JUDGMENT Hebner J.

Released: March 2, 2017