COURT FILE NO.: FS-19-0217-00

DATE: 2020 05 22

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

EMILIA STANISLAWA STUDZINSKI

Susan Berry and Zeba Haider, for the Applicant

Applicant

• and -

DARIUSZ MAREK STUDZINSKI and LILA STUDZINSKI

Oleksiy Bykov, for the Respondent Dariusz Studzinski

Respondents

Arkadiusz J. Empel, for the Respondent Lila Studzinski

HEARD: January 27, 28, 30, 31, February 3, 4, 5 and 6, 2020

REVISED REASONS FOR JUDGMENT

Fowler Byrne J.

[1] These are my reasons for decision after an eight-day trial in an Application under the Family Law Act, R.S.O. 1990, c. F.3, for child and spousal support as well as an equalization of net family properties.

[2] The Applicant Emilia Stanislaw Studzinski (“Emilia”) and the Respondent Dariusz Marek Studzinski, also known as Derek Studzinski (“Dariusz”), were married on July 13, 2002 and separated on August 21, 2018. There was one child of their marriage, a son, born on March 25, 2004. The parties were able to resolve the issue of custody and access wherein Emilia would have sole custody of the child and he would live primarily with her. There remains a restraining order is place preventing Dariusz from coming within 100 metres of either Emilia or their son, and any future access by Dariusz to the son must be through a therapeutic process.

[3] The other Respondent, Lila Studzinski, also known as Lilia Studzinski, Leila Studzinski and Lidia Studzinski (“Lilia”), is Dariusz’s mother. She was added as a party due to Emilia’s claim that Dariusz has a proprietary interest in four properties held in Lilia’s name. Jozef Studzinski (“Jozef”) is Dariusz’s father. Although not a party, he also gave evidence at trial.

A. Issues

[4] The following issues must be determined by this court:

a) What is Dariusz’s income, and should any income be imputed to him?

b) What amount does Dariusz owe to Emilia for retroactive child support, including section 7 expenses?

c) What are Dariusz’s ongoing child support obligations, including section 7 expenses, and should they be paid in advance as a lump sum?

d) Does either party have an obligation to pay the other spousal support, and if so, how much and for how long? Also, should this amount be paid by way of a lump sum?

e) What is the proper equalization payment? As part of that issue, the following questions must be answered:

1. Does Dariusz have any interest in the property located at 75 Dundas Street, Mississauga (the “Dundas Property”), currently owned by Lilia, by way of a constructive or resulting trust? If so, what is the value of that interest?

2. Does Dariusz have any proprietary interest in the matrimonial home located at 5622 Ruby Walk, Mississauga (“the Matrimonial Home”), owned by Emilia and Lilia as joint tenants, by way of a constructive or resulting trust? If so, what is the value of that interest?

3. Does Dariusz have any interest in the property located at 3351 Lake Shore Blvd. West, Etobicoke (“3351 Lake Shore”), currently owned by Lilia, by way of a constructive or resulting trust? If so, what is the value of that interest?

4. Does Dariusz have any interest in the property located at 745 Lakeshore Road East, Mississauga (“745 Lakeshore”), currently owned by Lilia, by way of a constructive or resulting trust? If so, what is the value of that interest?

f) Is Emilia entitled to an unequal division of the net family property?

g) What post-separation adjustments should be made?

B. Preliminary Issues

[5] Before the issues are determined, preliminary remarks must be made regarding two issues that permeated this trial: the lack of financial disclosure by both Respondents and issues of credibility.

i. Lack of Financial Disclosure

[6] As stated by Benotto J.A. in Roberts v. Roberts, 2015 ONCA 450:

[11] The most basic obligation in family law is the duty to disclose financial information. This requirement is immediate and ongoing.

[12] Failure to abide by this fundamental principle impedes the progress of the action, causes delay and generally acts to the disadvantage of the opposite party. It also impacts the administration of justice. Unnecessary judicial time is spent and the final adjudication is stalled.

[13] Financial disclosure is automatic. It should not require court orders – let alone three – to obtain production.

[7] The requirements of the parties’ obligation to provide financial disclosure is well laid out in law and fundamental to the fair adjudication of any family law matter. Current and up to date Financial Statements and Net Family Property Statements, along with supporting documentation, are to be exchanged from the beginning of the Application right through to trial: Family Law Rules, O. Reg. 114/99 (“the Rules”), r. 13; Federal Child Support Guidelines, SOR/97-175, (“the Guidelines”), s. 21.

[8] Consequences flow from both the failure to abide by the disclosure obligations in the Rules and the Guidelines and from the failure to obey orders for disclosure.

[9] Even before a disclosure order is made, failure to provide financial disclosure in accordance with the Rules or the Guidelines can result in a costs order for full indemnity costs if a motion is required or for the entire application: see Rules, r. 13(17); Guidelines, ss. 22(2), 24. With respect to income, an adverse inference may be drawn and income may be imputed to the deficient party: Guidelines, s. 23. The failure of a party to disclose documentation to verify their assets or liabilities as of the date of marriage or the valuation date also allows the court to draw an adverse interest against the deficient party that it would not have been in that party’s interest to have fulfilled that obligation to disclose: Meade v. Meade, 2002 CanLII 2806 (Ont. S.C.), at paras. 44, 81.

[10] Caution must be exercised though, when imputing income as a result of a party’s failure to make financial disclosure. In Drygala v. Pauli (2002), 2002 CanLII 41868 (ON CA), 61 O.R. (3d) 711 (C.A.), at para. 44, the Court stated:

Section 19 of the Guidelines is not an invitation to the court to arbitrarily select an amount as imputed income. There must be a rational basis underlying the selection of any such figure. The amount selected as an exercise of the court's discretion must be grounded in the evidence.

[11] With respect to the financial disclosure required to equalize net family properties, the lack of evidence also poses a difficulty for the court. While an adverse inference may be drawn from the lack of information, the court cannot simply make up a value for the assets and debts in the marriage, nor can it guess what assets may exist and assign a value to them. At the very minimum, evidence must be presented by either party of the existence of an asset or debt, and the value thereof. The principles set forth in Drygala should also apply here: there must be a rational basis to the selection of any asset value. Accordingly, while the fault for the lack of financial disclosure lies squarely at the feet of the Respondents, the Applicant does have an obligation to provide some type of evidence, even if it is not as compelling as what may be obtained by the party at fault, in support of the equalization payment she seeks from the court.

[12] When dealing with the failure to disclose pursuant to a court order, the Court of Appeal for Ontario, in Mullin v. Sherlock, 2018 ONCA 1063, set out the decision-making framework to be followed:

[44] First, when faced with an allegation of failure to obey a disclosure order, before granting a remedy, the judge must be satisfied that there has been non-compliance with the court order.

[45] Second, once satisfied, a judge may have recourse to the alternatives described in Rule 1(8). In assessing the most appropriate remedy, a judge should consider the following factors:

• the relevance of the non-disclosure, including its significance in hindering the resolution of issues in dispute;

• the context and complexity of the issues in dispute, understanding that an uncomplicated case should have little tolerance for non-disclosure, whereas a case involving extensive valuation of assets may permit some reasonable delay in responsiveness;

• the extensiveness of existing disclosure;

• the seriousness of efforts made to disclose, and the explanations offered by a defaulting party for the inadequate or non-disclosure; and

• any other relevant factors.

[46] Having considered these factors, the judge will then determine the best remedy. The orders identified in Rule 1(8) are not exclusive. Other approaches may be appropriate. For example, one option might be to invite the moving party to seek at trial an adverse inference from the failure to disclose and for the motion judge to memorialize this invitation in reasons for decision. Parties frequently rely on another option, namely a request for an adjournment to allow for more time to effect disclosure. Occasionally this may be appropriate especially in a complex case, but an adjournment should not be considered to be automatic. Fully compliant disclosure is the expectation, not the exception.

[13] The lack of financial disclosure by both Respondents is undisputable. The failure of the Respondents to even attempt to abide by their obligations of financial disclosure under the Rules and the Guidelines smacks of arrogance and complete disregard for the judicial process.

[14] At the early case conference held on August 28, 2018, the Respondents filed no materials and provided no financial disclosure. At the regular case conference on September 25, 2018, again no financial statements were provided. At that time the Respondents consented to an order that they provide an Affidavit of Documents, with documents attached, no later than February 28, 2019. There is no evidence that such affidavits or documents were ever provided.

[15] In October 12, 2018, Emilia sent a Request for Information to Dariusz wherein she sought substantial documentary disclosure regarding his income, his real estate interests (including their values), and all bank account statements either in his name or joint with Lilia or Jozef as well as a tracing of monies that Dariusz held in an account in their child’s name and subsequently transferred to Lilia. A similar Request for Information was sent to Lilia, wherein evidence of her properties, their value, credit applications, an Equifax report and copies of bank statements were requested. Only Lilia responded to the Request for Information. She provided a short, handwritten statement, prepared by Dariusz and sworn by her, which for the most part denied having any of the information requested. At trial she purported that she had no real memory of Dariusz completing it for her.

[16] As of June 2019, the Respondents had not yet even formally answered the Application. It appears that Emilia was forced to bring a motion to note the Respondents in default. Only after ordered by Trimble J. on June 18, 2019 to serve and file an Answer, Financial Statement and Affidavit of Documents by July 31, 2019, were any steps taken by the Respondents.

[17] There is no record in the Table of Contents of the Continuing Record that any of this was done, though Emilia has provided the court with a handwritten Answer by Dariusz dated July 2019. It was amended and filed in October 2019.

[18] On August 13, 2019, Doi J. made an order that the matter proceed to trial on the January 2020 blitz. Lilia was ordered to provide a Financial Statement by September 27, 2019. Lilia did not file an Answer in this Application until October 2019 and her first Financial Statement (and only Financial Statement filed in this Application) was sworn on September 13, 2019, five months before this trial started. Vital proprietary information and valuations are missing. She indicates her bank balances as “varies”. She provided no supporting documentation in support of the “estimates” given for the properties she owns. The lack of full and frank information in this sworn statement renders it practically worthless.

[19] At the trial management conference on December 16, 2019, both Respondents agreed to provide an up to date Net Family Property Statement by December 23, 2019. Neither did so. On the date the trial commenced, Dariusz had not yet filed a Financial Statement.

[20] The Applicant provided her Financial Statement in the Trial Record. Neither Respondent filed a supplementary Trial Record containing their Financial Statements or Net Family Property Statements.

[21] The affidavits that the Respondents were to provide for the trial contained little documentary evidence. Emilia was able to obtain some financial information regarding Dariusz from searching around the Matrimonial Home and from e-mails that Dariusz had sent to her at work to print while they were still together.

[22] No Financial Statement by Dariusz was sworn and delivered until the morning of February 5, 2020, which was the seventh and second last day of trial, just before Dariusz was to give evidence. He had already heard the evidence of Emilia, Jozef and Lilia.

[23] Throughout this litigation, both Dariusz and Lilia were represented from time to time by able counsel. For the most part, counsel spoke Polish, the Respondents’ first language. Both Dariusz and Lilia had separate representation from at least October 2019, four months before the commencement of trial. Little explanation was given for this failure to provide full and frank financial disclosure even while represented.

[24] At trial, new disclosure by the Respondents trickled in on a day-by-day basis. Extra time had to be given to Emilia to review documentation never before seen. The Respondents only produced documentation that supported their position. Their excuses as to why other relevant documentation was not available to them were incredulous. Apparently, their real estate lawyer from 2014, just “disappeared, could not be found” so they could not retrieve documentation for the real estate transactions which were at issue. They claimed to not be able to obtain bank statements from 2018 because Scotiabank closed their accounts. It was admitted at trial that there were six or seven bank accounts held jointly by Dariusz, Lilia and Jozef, the balances of which are crucial in order to determine the proper equalization payment. No explanation was given as to why they were not produced. The Respondents’ “inability” to produce key documentary evidence was selective, to say the least. Jozef and Lilia claimed to not know they were even obligated to do so.

ii. Credibility

[25] In addition to the Respondent’s lack of financial disclosure, the Applicant submits that the evidence of the Respondents is not credible and that any inconsistency in evidence should be resolved in the Applicant’s favour.

[26] The trial judge is in the unique position to consider the credibility of any witnesses that appear at trial. In considering the credibility of witnesses, the court should consider the following factors:

a) Inconsistencies in evidence, such as internal inconsistencies, prior inconsistent statements and inconsistencies between the testimony of different witnesses;

b) The existence of independent evidence that confirms or contradicts a witness’s testimony;

c) Whether the witness is a party and therefore may be motivated to fabricate evidence;

d) Whether all, some or none of a witness’s evidence is credible; and

e) The demeanour of a witness, but only considered with caution.

Betancourt v. Rowe, 2019 ONSC 4755, at para. 16.

[27] In the end, findings of credibility must be made within the context of the evidence as a whole: Green v. Reed, 2012 NBQB 177, 388 N.B.R. (2d) 140, as cited in Betancourt, at para. 18.

[28] The evidence of the Respondents and Jozef, for the most part lacked credibility. Their evidence was internally inconsistent and at times inconsistent with each other. Their evidence was self-serving, as was their disclosure, and would change to support what they considered their most advantageous position. My particular findings of credibility will be highlighted in this decision.

C. Background Facts

[29] At the time the parties were married, Emilia was 34 years old, living on her own and working full time as a graphic designer. She maintained that job throughout her marriage, taking only maternity leave following the birth of the couple’s only child.

[30] When married, Dariusz was 31 years old. Dariusz and his family immigrated from Poland when Dariusz was a teenager, spending approximately two years in Italy prior to arriving in Canada. While in Italy, Dariusz was seriously injured in an automobile accident. When the family first arrived in Canada, Dariusz was still recovering. Upon finishing high school, Dariusz qualified to be a real estate agent but chose not to pursue it several years before his marriage. Until he was married, Dariusz lived with his parents, Jozef and Lilia, and his younger brother Gregorz Studzinski (“Gregorz”).

[31] On June 22, 1998, when Dariusz was 27 years old, the Dundas Property was purchased for the sum of $278,000. This was a mixed-use unit in a strip mall with a fish market on the main floor and a two-bedroom apartment on the second floor.

[32] Dariusz was the registered owner from the date of purchase. When asked why the Dundas Property was purchased, Emilia and Jozef both testified that the family wanted to work for themselves and wanted to have something that their children could call their own. They assumed it would be a good investment and a source of income for Dariusz. It was not clear why they did not make Gregorz an owner as well.

[33] The purchase was funded with a small down payment, a vendor takeback mortgage for $13,000 (“VTB”), a mortgage to the Bank of Nova Scotia for $50,000 (“1998 Scotiabank Mortgage”) and the sum of $206,250 which was advanced by Jozef and Lilia and secured by a mortgage to them (“the Studzinski Mortgage”). Jozef and Lilia were able to advance these funds by mortgaging their own home located at 320 Commonwealth Circle, Mississauga, for the same amount (“the 1998 Commonwealth Mortgage”). The 1998 Commonwealth Mortgage was guaranteed by Dariusz and Gregorz.

[34] Based on the evidence of Jozef and Lilia, I find that at the time they purchased the Dundas Property, they intended the Dundas Property to be a gift to Dariusz, if not to both Dariusz and Gregorz. The significant investment of Jozef and Lilia was secured by the Studzinski Mortgage, rather than them being on title. Their evidence at trial was clear. Lilia maintains in her trial affidavit that the Dundas Property was not a gift. Perhaps she was referring to the funds advanced to purchase the Dundas Property, which were clearly a loan. At no time did she allege that the Dundas Property was being held in trust for her benefit.

[35] When the Dundas Property was first purchased, the upstairs apartment was rented immediately. Jozef, Lilia, Dariusz and Gregorz (“the Extended Studzinski Family”) extensively cleaned and renovated the main floor and eventually opened up a Polish deli. They found there was too much competition in the Polish deli field, so they converted the business into a bakery within a year. This business, referred to as the Sunflower Bakery, was eventually licensed and lasted in various forms, including a pizzeria and sandwich shop, until approximately 2004 when it was decided to shut it down. The main floor was rented to a third party almost immediately thereafter, who remains a tenant to this day.

[36] It is clear from the evidence that the Extended Studzinski Family was very close and all members were involved in the Dundas Property, either helping with the renovations or actually working in the bakery. Evidence was presented showing that at least in 2003, Dariusz held a joint bank account with Jozef and Lilia in relation to the Dundas Property. Emilia was not involved with the Dundas Property either before or after the marriage, except to visit. She maintained her job with the graphic printing firm.

[37] Sometime after the Dundas Property was acquired, Dariusz and Emilia became engaged. It was important to Dariusz that he and Emilia had their own home after they were married. In May 2002, Dariusz made an offer on his own for a new home to be constructed and located at 5622 Ruby Walk, Mississauga (“the Matrimonial Home”). The sale was completed on July 22, 2002 for the price of $259,527.40.

[38] Title was taken in the name of Emilia and Lilia, as joint tenants. Dariusz was not a registered owner. There is conflicting evidence as to why Dariusz was not an owner. He acted as an owner. Shortly after closing, Dariusz contacted the builder, identified himself as the owner of the Matrimonial Home and requested the return of the grading deposit. Only he and Emilia lived in the property with their child. Emilia and Dariusz maintained the home and made improvements throughout the marriage. With the exception of some lump sum payments Jozef and Lilia made toward what I will refer to as the “2002 Scotiabank Mortgage” (the details of which are set out below), Emilia and Dariusz paid the mortgage, property taxes and utilities. Emilia believed Lilia was on title because she and Dariusz could not qualify for a mortgage on their own. Perhaps, as a business owner with debt, Dariusz wanted to shield the Matrimonial Home from any possible judgments. Dariusz maintains that it was because his parents advanced all the monies needed to close the transaction.

[39] Jozef gave evidence that they only put Emilia on title as a sign of affection given that she was joining the family. Lilia gave conflicting evidence on this point, at first indicating that the Matrimonial Home was a gift to Dariusz, no matter who was on title, and then indicating that she intended to be an owner to secure her investment in the property. In her affidavit sworn for the trial, Lilia stated that it was her and Jozef”s intention that neither Emilia nor Dariusz would be on title, but they then decided to put Emilia on title due to their good relationship with her. In cross-examination at trial, Lilia stated she never wanted to be the 100% owner of the property.

[40] The funds needed to complete the purchase came from three sources: a deposit of $15,000, a loan of $120,000 from Scotiabank secured by a first mortgage (the 2002 Scotiabank Mortgage), and a draft in the sum of $121,965.02, payable to the lawyer who represented them in the purchase.

[41] While Dariusz maintains he had no money to contribute, his father Jozef recalls that Dariusz may have had the money to pay the deposit. By this date, Dariusz had been working at the Dundas Property for four years.

[42] The evidence on the source of the $121,965.02 is conflicting. Emilia believed Dariusz contributed to this sum. He was working at the Dundas Property, living at home and told her that he received a large financial settlement from the motor vehicle accident in Italy. At trial, Dariusz agreed that he received approximately $30,000 as a result of that accident but said that he spent it long before he bought the Matrimonial Home. This contradicted his earlier evidence given at his questioning in which he stated he received $60,000 as a result of that accident.

[43] Dariusz, Lilia and Jozef all maintain that Lilia and Jozef alone provided the sum of $121,965.02. Jozef and Lilia provided proof that between April 2, 2002 and June 7, 2002, Jozef received six lump sum payments from the Workplace Safety and Insurance Board (“WSIB”) which totaled $141,068.27, representing settlement monies he received as a result of a workplace accident in 1994, and which they used to purchase the Matrimonial Home. Despite having this historic evidence of WSIB payments, Jozef and Lilia did not produce any banking documents from that same period showing that the money came from their account.

[44] On the evidence provided, it is clear that Emilia contributed nothing to the purchase of the home. What monies were advanced came from the Extended Studzinski Family, but from which members is hard to say. They all maintain that the Dundas Property was never profitable, but the evidence indicates otherwise. During this period, Jozef was unable to work due to a workplace injury in 1994 and Emilia cleaned houses part time for cash. Despite this, the Dundas Property was able to support the Extended Studzinki Family, Dariusz and Emilia’s family, as well as enable them to pay off extensive debt, as set out below. The evidence supports an inference that they all worked or contributed to the Dundas Property in some manner, paid the associated expenses and divvied up the remainder amongst themselves in some manner using a joint bank account or keeping cash.

[45] Whichever member of the Extended Studzinski Family contributed the remaining monies needed to complete the purchase, it was decided by them that the advance of funds would be secured by Lilia taking an ownership interest of the Matrimonial Home rather than Dariusz. There is insufficient evidence to support the inference that Dariusz contributed to the closing funds to the exclusion of Jozef and Lilia. Jozef and Lilia were clear that they gave half of the Matrimonial Home to Emilia as a gift, but there is no evidence of a gift to Dariusz. Dariusz was not given title, as was the case with the Dundas Property. The evidence supports the finding that Lilia took title with the intent of being a joint owner and not simply to enable the couple to obtain a mortgage. While she did agree to be liable under the mortgage, she also took title as a joint tenant and, on the balance of probabilities, contributed one-half of the purchase price with Jozef. Her ownership is consistent with securing Jozef and Lilia’s investment. She and Emilia alone were obligated to pay the 2002 Scotiabank Mortgage.

[46] The next years appeared to be successful years for the Extended Studzinski Family. The Matrimonial Home, the Dundas Property and Jozef and Lilia’s home on Commonwealth Circle became unencumbered relatively quickly, all without Emilia’s knowledge or involvement. Approximately $350,000 in debt was paid or otherwise extinguished between 2003 and 2004.

[47] On March 28, 2003, a payment of $25,000 was made towards the principal of the 2002 Scotiabank Mortgage: $9,000 was made in cash (the origin of which was not established) and a further $16,000 was transferred from Jozef and Lilia’s bank account.

[48] On April 14, 2003, the VTB of $13,000 was discharged. On July 4, 2003, a payment of $24,000 was made towards the principal of the 2002 Scotiabank Mortgage: $4,000 was in cash, from an unknown source, and a further $20,000 was made by a transfer from Jozef and Lilia’s bank account. Throughout 2004, further payments in cash of various amounts (such as $1,000, $1,180, and $1,500) were made by Dariusz. On March 2, 2004, the 1998 Commonwealth Mortgage of $206,250 was discharged. On December 3, 2004, the 1998 Scotiabank Mortgage of $50,000 was discharged.

[49] On December 10, 2004, the Studzinski Extended Family made some significant changes, again, all without Emilia’s knowledge. On that day, 50% of title of the Dundas Property was transferred from Dariusz to Gregorz. No funds were exchanged. Dariusz stated in evidence that this was done to extinguish the debt he owed to his parents which had been accumulating since 1998. On the same day as this transfer, the Studzinski Mortgage for $206,250, taken out to purchase the Dundas Property, was discharged, supporting Dariusz’s evidence. This transfer also supports Jozef and Lilia’s evidence that they intended the Dundas Property to benefit both their sons.

[50] The source of the funds to pay off approximately $350,000 in debt is conflicting. Emilia had no idea the 2002 Scotiabank Mortgage was paid off and was only told by Dariusz several years later. She assumed it was because the business was doing well. The bakery was operating, they extended their menu to pizzas and sandwiches, it was licensed, and Dariusz was the sole owner, entitled to whatever profits were earned.

[51] Jozef, Lilia and Dariusz all maintain quite the opposite. They assert that the Dundas Property was losing money. They maintain that the payment of the VTB, the 1998 Scotiabank Mortgage, the principal payments (cash and transfers) on the 2002 Scotiabank Mortgage and even payments made by Dariusz towards the 2002 Scotiabank Mortgage were made with monies Jozef and Lilia loaned to Dariusz. Jozef, Lilia and Dariusz all claim that Dariusz was able to support his family only because of the constant loans from Jozef and Lilia.

[52] As stated by the Court of Appeal for Ontario in Barber v. Magee, 2017 ONCA 558, 139 O.R. (3d) 78,

[4] Generally, there are objective indicators that can assist in determining whether an advancement is a gift or a loan. …A gift is a transfer in which the absence of an expectation of repayment tends to be reflected in the absence of security, recording, payments or efforts to collect payments. A loan often involves a formal, recorded transfer in which terms are set out and in which repayment is made or sought (citations omitted).

[53] There are few indicators that the advancements from Jozef and Lilia to Dariusz were a loan. When asked to explain how Jozef and Lilia were able to pay all this money, Lilia maintained that Jozef was working as an electrician and made good money. They also earned extra income by preparing flowers and wreaths for their church, especially around Easter. Jozef provided verbal evidence that from 1987 to 2011 inclusive, a period of 25 years, he has earned over $1,700,000. He claims he earned $400,000 of this prior to 1994. He brought $85,000 with him from Europe when he immigrated. He also admitted to earning $220,000 in undeclared cash income in this 25-year period – the equivalent of $8,800 per year – which he claims his accountant said was allowed. It should be noted that earning undeclared income in cash was admittedly a practice of Jozef and Lilia’s. In addition to Jozef’s evidence, Lilia also indicated that once the Dundas Property was purchased, she continued cleaning houses for cash in the morning, before she attended at the Dundas Property to assist (apparently for no income).

[54] Jozef and Lilia’s evidence of their ability to give continual loans to Dariusz is inconsistent with other evidence presented at trial. Jozef and Lilia both gave evidence that Jozef has not worked since 1994 due to his workplace injury and that he continued to collect WSIB benefits and a union pension during this time. When Lilia was confronted with this inconsistency, she claimed that she did not recall when Jozef was hurt and did not recall his injuries. Jozef’s income analysis indicates his average income was $68,000 per year, but this does not account for any income tax, CPP or EI that is payable or for his everyday living expenses. Granted, in some years he earned more than others, but this grand generalization of all the money he has earned over 25 years does not add up or provide an adequate explanation of the significant loans they maintain were advanced to Dariusz.

[55] As indicated already, during this time the Dundas Property was operational and had at least one tenant paying rent in addition to whatever income was being earned in the Sunflower Bakery. I have already found that any income earned by the Dundas Property was used to pay off any debts and then distributed amongst the Extended Studzinski Family as they felt was appropriate.

[56] Of all the payments made between 2002 and 2004, only two principal payments could be definitely linked to Jozef and Lilia. It is important to remember that Lilia was a mortgagee and therefore obligated to pay back the 2002 Scotiabank Mortgage. The rest of the payments were either cash (of unknown origin) or made by Dariusz as a regular payment.

[57] With the exception of the Studzinski Mortgage, which was discharged upon the transfer of 50% of the Dundas Property to Gregorz, there are no objective indicators of the existence of a loan from Jozef and Lilia to Dariusz. The Respondents were able to produce a document recording a number of small loans given by Jozef to Emilia early in the marriage yet were unable to produce any loan agreement or even correspondence that would indicate a loan from Jozef and Lilia to Dariusz. Jozef indicated he had all the debt recorded in his notebook at home, but in the two days he was giving evidence at trial, he never produced it.

[58] Also, evidence of the debt is inconsistent. First, Jozef testified that Dariusz owed him and Lilia about $200,000 plus the payments they made towards the 2002 Scotiabank Mortgage plus an additional $27,000 for a car they gave him. Later in his evidence, Jozef stated that from 2002 to 2018, he loaned Dariusz about $200,000 in total which was recorded in his notebook at home, a notebook which was never produced. Jozef admits he made these payments voluntarily so Dariusz and Emilia would not have to pay interest. He maintains it was an oral agreement that when Dariusz had the money, he could pay it back. This contradicts the evidence that between 2007 and 2013 Dariusz was able to accumulate $250,000 in a bank account kept in his son’s name, which would have enabled him to pay his parents back. He did not, nor was any demand made.

[59] Dariusz gave evidence that he borrowed about $200,000 in total from his parents. When asked pointedly by his counsel if this was in addition to the mortgage payments made on his behalf for the Matrimonial Home, Dariusz confirmed that the sum of $200,000 was for all the debt. He also testified that this was paid off when he transferred half of the Dundas Property to his brother. No written evidence of a loan, a demand for payment, or even any notes or correspondence between the family regarding the expectation of payment, was ever produced. No evidence was provided of the value of the Dundas Property at the time of this transfer.

[60] It should be noted that in Dariusz’s Financial Statement, delivered well after the trial started, he did not list any debts as of the date of marriage. Accordingly, even after hearing his parent’s evidence that all the money advanced to him were loans since 1998, he still swore a Financial Statement stating that he owed nothing to them as of 2002.

[61] Based on the evidence presented and the lack of adequate disclosure by the Respondents, I find the Respondents’ evidence of continual loans to Dariusz lacks credibility. The only debt owed by Dariusz to his parents was evidenced by the Studzinski Mortgage, which was discharged when Dariusz gave up half his interest in the Dundas Property for no consideration. The lack of any other indication of debt accords with my earlier finding that the Extended Studzinski Family collected what income they could from various sources and distributed it amongst themselves as required. There was no expectation of repayment, just the continued, collective accumulation of wealth. Money and ownership were transferred between them all, under the direction of Jozef and Lilia. With the exception of the gift of one-half of the Matrimonial Home to Emilia, the sole guiding principle within the Extended Studzinski Family was that the money would be kept within the Extended Studzinski Family.

[62] After the transfer of the Dundas Property, things continued to improve for the Extended Studzinski Family. Emilia was able to obtain a copy of Gregorz’s tax return for 2005, showing him to be a 50% owner of the Dundas Property. This tax return shows that the Sunflower Bakery was no longer operating and that Dariusz and Gregorz were receiving rental income for the main floor and the residential unit of the Dundas Property by this time. Accordingly, as of January 1, 2005, Dariusz and Gregorz jointly owned a property that was mortgage-free and earning net rental income.

[63] A closer look at this tax return shows that the Dundas Property, as a whole, was earning gross income of $43,200 and net income of $6,848. While there appear to be reasonable costs associated with insurance, property tax and professional fees, there is a large “maintenance and repair” cost of $17,518. At trial, Jozef testified that he paid his son Gregorz to do maintenance in subsequently acquired properties and that he recorded this expense in their tax return. Accordingly, it is reasonable to infer that the Extended Studzinski Family would pay their own family members to do work on their properties, claim it as an expense, and use that as another way to generate income from their properties. Given the large maintenance expense of this year, it is reasonable to infer that some of this maintenance and repair cost made its way to one or more of the members of the Extended Studzinski Family.

[64] Dariusz’s 2007 tax return shows that in that year, gross rental income from the Dundas Property increased to $72,000 and net rental income increased to over $18,000.

[65] After a further cash payment of $18,000 by Jozef or Lilia, on November 30, 2005, a final payment of $27,050.71 on the 2002 Scotiabank Mortgage was made by Lilia from her joint account with Jozef. The 2002 Scotiabank Mortgage was subsequently discharged on December 9, 2005. Again, Lilia was a mortgagor on the Matrimonial Home, and was obligated to ensure the 2002 Scotiabank Mortgage. The Respondents have failed to show, on the balance of probabilities, that this amount was a loan to Dariusz or Emilia. Again, there are no indicators of a loan. Funds continued to be distributed amongst the Extended Studzinski Family as was required.

[66] Following the transfer of one half of Dariusz’s share in the Dundas Property and the rental of the first floor of the property, Dariusz started to work outside of the family business and went into the hardwood flooring business. Jozef testified that during this time, Dariusz was able to support his family and he did not need to lend him money.

[67] Unfortunately, on June 8, 2006, Dariusz suffered a workplace injury. Following that injury, he started receiving Loss of Income (“LOI”) benefits from WSIB as of June 2006 and eventually started receiving non-economic loss (“NOL”) benefits. Dariusz did not give evidence on the exact dates these benefits were received. He did indicate though that he opened up an account in the name of his son and deposited the WSIB benefits he received in this account. He did this without Emilia’s knowledge.

[68] We know that Dariusz earned the following LOI benefits: $24,324.61 for the period of June to December 2006, $44,427.22 for 2007 and $45,644.37 for 2008. He received $27,014.67 for the period of January to July 2009 and was on track to make $46,309.71 in 2009, until his benefits were terminated.

[69] A review of his son’s account shows that it was opened on June 26, 2007 and started with a balance of almost $12,000. It appears to have remained static, earning only interest until February 2009, when $99,900 was deposited. An additional $105,993 was deposited on March 1, 2011. The greatest balance of the account was $247,231.60, as of December 31, 2013, which is $100,000 more than all the LOI benefits he ever received. This provides additional confirmation that it is unlikely that the monies advanced by Jozef and Lilia to Dariusz were a loan. Jozef and Lilia claimed that they loaned money to Dariusz for living expenses. It seems incredulous that they would “loan” money to Dariusz so that he could stash approximately $250,000 in his child’s account out of the reach of his wife. This balance also confirms that Dariusz did have another undisclosed source of income at the time.

[70] In May 2007, Lilia and Emilia obtained a line of credit, secured by a new mortgage for $250,000 on the Matrimonial Home (“Secured Line of Credit”). There is no record of what happened, if anything, to this available credit. Lilia and Jozef also took out a mortgage on their own home at the same time for $218,000. While it is not clear, both these loans coincide with the evidence of Jozef and Lilia that they purchased property in Alberta in 2007. When the main floor of the Dundas Property was rented out, Gregorz subsequently moved to Alberta. Jozef gave evidence that when they went to Alberta to visit Gregorz, they saw this land and purchased it. Lilia listed this property on her Financial Statement, indicated that it was owned jointly with her spouse, and assigned it a value of $90,000. No evidence was presented to support this value, and it is not known whether this value is only her share of the value, making the entire value of the land to be $180,000.

[71] There is no evidence that either Dariusz or Emilia benefited from the Secured Line of Credit and no evidence to explain why Emilia cooperated. The Secured Line of Credit had no balance when the Matrimonial Home was sold, so it was closed out.

[72] In 2008, the Studzinski Extended Family again made some changes, all without Emilia’s knowledge. On August 14, 2008, Dariusz transferred his remaining 50% interest in the Dundas Property to his mother for $2. Dariusz stated in evidence that he gave his share of the business to his mom at this time because of the debts he accumulated to his parents between 2004 and 2008. It was his evidence that this cleared his debt. Approximately five months later, Gregorz transferred his 50% interest to his mother for $2. Accordingly, as of January 8, 2009, Lilia was the sole owner of the Dundas Property, a mortgage-free, income-generating property. Again, no evidence was presented to provide a valuation of the Dundas Property as of 2008 or 2009 to show whether this was a bona fide purchase for good consideration.

[73] Following 2008, Emilia saw no difference in how Dariusz spent his days. Despite being injured in 2006, he continued to help his parents with the Dundas Property whenever requested, especially when his parents were out of town. By their own evidence, Jozef and Lilia testified that Dariusz was a “good son” and would help with all their properties when required. Lilia confirmed this was the case from 2002 to 2018. They maintained that they continued to advance Dariusz “loans” during this time, but at no time paid him.

[74] Again, the evidence regarding the existence of debt owed by Dariusz to his parents in 2008 is inconsistent. Emilia asserts that this divestment of his interest in the Dundas Property coincided with Dariusz’s application for WSIB benefits. At first, Dariusz stated that he transferred his share to his mother in exchange for the debts accumulated between 2004 and 2008. Later he maintained that the total amount he borrowed from his parents since 1998 was $200,000, which apparently was extinguished in 2004. He gave no evidence about any specific amounts he borrowed from his parents after 2004.

[75] Jozef stated that between 2004 and Dariusz’s injury, he did not need to loan any money to Dariusz. Following the injury, he started to loan Dariusz periodic sums of $2,000, $5,000, or $10,000 as needed. Again, it was apparently recorded in a notebook kept in his home, but this notebook was never produced. This need for money is inconsistent with Dariusz’s evidence of the LOI benefits he received. If any money was owed to his parents, Dariusz was in a position to repay them from at least February 2009 but instead took the money and put it in an account in his son’s name and managed to save an additional $100,000 on top. As stated, by the end of December 2013, he had saved close to $250,000. When cross-examined on why he continued to borrow money from his parents after receiving significant WSIB payments, his response was “why not?”.

[76] Dariusz continued to receive LOI benefits from WSIB for 2009. Unfortunately, Dariusz’s benefits were terminated as of July 31, 2009. As stated in the letter from WSIB dated January 21, 2020:

Per the decision dated June 7, 2012, the final review, the case manager adjusted your loss of earnings benefits in 2009 to reflect an experienced worker in your chosen Suitable Employment or Business (SEB) due to non-cooperation issues through the Labour Market Re-entry program.

[77] At some time during the course of Dariusz’s WSIB claim, the WSIB considered Dariusz fit to work as a Property Administrator. This is not surprising given that at the time of his claim he was the part owner of the Dundas Property, which was fully rented and earning net income. There was insufficient evidence to determine whether Dariusz’s decision to divest himself of ownership in the Dundas Property in 2008 and eliminate that reportable income stream was a factor in the termination of his benefits, but an inference may be made. Dariusz did not request any information regarding his WSIB file until just prior to trial, and WSIB was not able to provide the entire file on such short notice.

[78] In addition to his LOI benefits, Dariusz received NEL payments as of January 12, 2009. He started by receiving $139.87 per month, which was based on a NEL award of 34%, being the WSIB’s perception of Dariusz’s partial disability with respect to certain injuries. This was upgraded to 41% in February 2012. As of the date of trial, he was receiving $154.90 per month, but admittedly had not cashed his cheques for several years.

[79] Several years later, it appeared that the Extended Studzinski Family wanted to increase their property holdings. Dariusz admitted to hiring a real estate agent in May 2012 to look for “multi-use/commercial” properties. Interestingly, this admission was made only after this listing agreement was discovered in the documents associated with the Matrimonial Home, which neither party had noticed when produced.

[80] Nothing was purchased until 2014. In July 2014, Jozef and Lilia obtained a personal line of credit from the Bank of Nova Scotia for $500,000, secured by a mortgage registered on their own home on Commonwealth Circle (“Commonwealth Line of Credit”).

[81] On July 29, 2014, Dariusz transferred $100,000 from his son’s account to account 00752 02853 82, which belonged to Dariusz, Lilia and Jozef. The very next day, Lilia purchased 3351 Lake Shore for $475,000. She holds title in her name alone. To finance the purchase, she withdrew $300,000 from the Commonwealth Line of Credit and the rest from available funds.

[82] On October 29, 2014, Dariusz transferred an additional $59,932.54 from the account in his son’s name to the same joint account. The next day, on October 30, 2014, Lilia purchased 745 Lakeshore for $248,000 in her name alone. In order to do so, she withdrew a further $150,000 from the Commonwealth Line of Credit and the rest was from available funds.

[83] Both Jozef and Lilia admit that the funds transferred by Dariusz were used to purchase 3351 Lake Shore and 745 Lakeshore. Both are commercial properties. No one told Emilia of these purchases – she found out accidently from a neighbour after they were acquired. Lilia could provide no evidence as to why she was put on title for both properties – she claims she could not remember. At trial she could not even remember the addresses of the properties. When asked the names of the tenants, she responded that it was her husband’s job to take care of that.

[84] Dariusz, Jozef and Lilia maintain that the funds transferred by Dariusz to his parents were to repay monies that Dariusz owed to them. They maintain that, once they were repaid, Jozef and Lilia could use the money for whatever they wanted. Just because they chose to use it to purchase two rental properties, does not mean that Dariusz has an ownership interest in the properties.

[85] Despite his earlier evidence regarding the money he apparently owed to his parents in 2004 and 2008, Dariusz again gave evidence that as of 2014, he owed his parents approximately $200,000, which evidence was supported by Jozef. By transferring the money he did, Dariusz maintains he repaid $160,000 of this debt to his parents.

[86] This evidence is not credible for the following reasons:

a) In 2004, when Dariusz transferred ½ of the Dundas Property to Gregorz, the parties agreed it was in satisfaction of debts accumulated at that time;

b) Jozef indicated he did not lend any money to Dariusz until he was injured;

c) It is not credible that Jozef would continue to loan Dariusz money after Dariusz started receiving WSIB benefits and accumulated approximately $250,000;

d) Jozef gave evidence that between 2006 and 2008, he advanced further monies to Dariusz but could provide no particulars as to the dates and amounts that were advanced;

e) Dariusz earlier testified that he transferred his half of the Dundas Property to Lilia to satisfy all his debts in 2008;

f) No particulars were provided to support the advance of any monies to Dariusz after 2008;

g) The monies advanced by Dariusz were transferred to an account that he held jointly with his parents;

h) Dariusz’s Financial Statement, sworn after hearing Jozef and Lilia’s evidence, still indicated no debt owing to his parents as of the day of separation, which contradicts his evidence at trial that he still owed them $40,000; and

i) At no time until Emilia, Lilia and Jozef actually started giving evidence at trial did the Respondents even advance the theory that the monies advanced by Dariusz to Lilia were in repayment of a loan.

[87] The decision of Dariusz to use his accumulated WSIB benefits to purchase property for the benefit of the Extended Studzinski Family mirrors what his father did in 1998 and 2002. He also continued the family practice of keeping these monies within the Extended Studzinski Family, to be spent in accordance with the direction of Jozef and Lilia, and to the exclusion of Emilia. From these facts, I can comfortably infer that it was the intention of all involved that Dariusz was to benefit from the purchase of 745 Lakeshore and 3351 Lake Shore.

[88] This intention as of the date of purchase is further supported by Dariusz’s conduct following the purchase of 3351 Lake Shore and 745 Lakeshore. His parents were admittedly trying to slow down and retire. They stopped renting out their entire basement. They travelled to Europe a couple of times. Gregorz returned from Alberta in 2014. It was time for Dariusz and Gregorz to assume more responsibility, and they did. Jozef and Lilia maintained that only Gregorz helped, and only Gregorz got paid as a contractor on these two last properties. In the same breath, they gave evidence that Dariusz was a good son, helped out and collected rent for his parents. For some reason, only Gregorz was ever paid, but they did have Dariusz as a joint account holder on six or seven accounts “for security, just in case something happened to them.”

[89] The evidence of the Extended Studzinski Family regarding the ownership of 3351 Lake Shore and 745 Lakeshore is simply not credible for the following reasons:

a) Property inspectors for 3351 Lake Shore addressed their correspondence to Dariusz and Gregorz, or Dariusz alone, and rendered their invoice to the Studzinski Family;

b) There is text communication between Dariusz and tenants regarding collection of rent from 2017 and 2018;

c) Numerous electronic rent payments were sent to Dariusz, until which time Jozef learned how to do it (who is also not a registered owner, but a joint bank account holder like Dariusz);

d) When Lilia was involved in litigation with a tenant, the evidence shows that her counsel communicated with Dariusz and that Dariusz was very much involved in dealing with the tenant directly; Dariusz confirmed that he was acting as the agent for Lilia in negotiations with the tenant’s counsel (Lilia testified incredulously that she didn’t know why Dariusz was involved);

e) Dariusz was in regular possession of keys from all three commercial properties;

f) Lilia confirmed that all members of the family attended at all properties and collected rent, from 2002 to 2018;

g) Jozef and Lilia both were confused in their evidence about what tenants are in what property, but Dariusz had excellent knowledge of the properties, who owed rent, who was overdue and what accounts were used for which properties; and

h) Emilia discovered bundles of cash hidden beside a garbage pail in the bathroom Dariusz used at the Matrimonial Home; some of these were bundled with a bank stamp dated January and February 2017, or with a slip of paper indicating totals of $5,940, $4,100, $10,045, $1,000 and $8,465.

[90] The evidence establishes that Dariusz accumulated more wealth and had more cash than he testified he had as an injured, unemployed man relying on his parents for support. Emilia witnessed that Dariusz always had cash in his side table, sometimes amounting to $2,500. Dariusz maintained several credit cards, three of which were issued in the name of Dariusz Spudzinskr. Dariusz claims he has no idea why the cards were issued in that name. Dariusz was also able to collect a large number of expensive items, collectables and art. He admits that he owned three expensive watches, one of which was a Breitag, which he claims was worth $40,000. This is more than Emilia’s yearly after-tax income. More money was coming from somewhere. Emilia also indicated that Dariusz was doing side jobs throughout the marriage, such as hardwood flooring, helping his cousin renovate his home and doing other odd jobs for cash, despite his alleged inability to work. It was shown that as of December 2014, Dariusz had an investment of USD$3,136.26 held with Scotiabank. It slowly increased in value over the years. In August 2017, Dariusz deposited $30,000 in a TFSA. The source of those funds was not disclosed by Dariusz. At the same time, Jozef and Lilia were able to discharge the Commonwealth Line of Credit for $500,000 on July 2, 2019.

[91] Dariusz has disclosed that he is currently receiving $154.90 per month for NEL benefits from WSIB. Dariusz has admittedly not cashed these monthly cheques for several years. This source of income is not even listed on his Financial Statement, which was sworn mid-trial. These benefits are non-taxable. He has also disclosed that he is receiving payments from Ontario Works of $733 per month. On his Financial Statement, he indicated that he pays rent of $390 to his mother, though he admitted under cross-examination that he does not pay that amount to her. Despite acknowledging a notional debt to his parents for accommodation, nowhere does he acknowledge a debt for child support, which he has not paid since separation. Again, this shows a focus on the Extended Studzinski Family to the exclusion of his own family.

[92] According to Dariusz, at the date of separation, his yearly income was just over $10,000 per year. Emilia, unfortunately, was let go from her long-time employment in December 2018. She received severance payments for approximately one year. In her last full year of employment, she earned $47,700. Since then, she has found alternate employment at a retirement community, but at a significantly lower rate of pay. She works in laundry and housekeeping and is working towards being a personal support worker. She takes extra shifts as cleaning staff, up to 52 hours per week. She stated that the only similar position in her previous field of work was too far away. She anticipates earning $30,000 per year going forward.

D. Income of the Respondent Dariusz

[93] According to the tax returns filed by Dariusz, his total income for the purposes of child and spousal support obligations are as follows:

Year

Line 150 Income

2014

Not provided

2015

Not provided

2016

$2,098

2017

$0.00

2018

Not provided

2019

Not provided

[94] Dariusz also maintains that he is unable to work any further due to a workplace injury that occurred on June 8, 2006. As noted, following that injury, he received LOI benefits from WSIB commencing June 2006. These were calculated as eighty-five percent (85%) of his average net earnings: Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A, s. 43 (“WSIA”). It should be noted that “net average earnings” are defined by the Act as the earnings that a worker would be expected to earn after they paid their income tax, CPP and EI contributions: WSIA, s. 55.

[95] Just before Dariusz’s benefits were terminated, he was on track to make $46,309.71 in 2009. Unfortunately, Dariusz’s benefits were terminated at the end of July 31, 2009. I infer from the aforementioned letter from the WSIB that Dariusz’s benefits were terminated due to non-cooperation. If Dariusz had continued to participate in the Labour Market Re-entry program, his benefits would have continued until which time he either was able to earn the same wage through retraining, or he would be paid the difference between what he was able to earn and what he earned before his injury. There is no evidence that Dariusz ever appealed this finding.

[96] Using the DivorceMate calculator, annual WSIB benefits of $45,644.37, which are grossed up for taxes and statutory deductions, are equivalent to earning $59,993 per year. If this is only 85% of his pre-injury earnings, it can be inferred that Dariusz provided evidence to the WSIB that he was able to earn approximately $70,000 prior to being injured. He walked away from this benefit by failing to cooperate with WSIB.

[97] Dariusz maintains that he continues to be fully disabled and unable to work. He claims he has gotten worse since 2006. WSIB records show that it accepted that he had permanent impairments and restrictions for tendonitis in his right shoulder, a herniation in his lower back and an ACL tear and MCL bucket handle tear in his left knee. It should be noted that the records indicate a partial permanent impairment in these three areas, not a total disability nor an inability to work in any field.

[98] It also appears that WSIB contacted Dariusz’s doctor in 2015 because Dariusz maintained he still could not work and required further treatment for his accepted impairments. Dariusz’s doctor replied to the WSIB that year and indicated that despite injury to the knee, Dariusz did not undergo any repair. He also indicated that Dariusz was approved for “total disability” in April 2012, but that the disability status was revoked and payments suspended in January 2013. The source of the doctor’s indication that Dariusz was approved for “total disability” in 2012 is not known. He maintained that Dariusz “remains disabled from work.” He indicated that in 2015, Dariusz reported lower back pain and still having problems with his left knee. The doctor indicated that a follow up MRI and orthopaedic and neurological reassessments should take place. The doctor indicated that these tests were postponed because Dariusz developed pneumonia and pleurisy in March 2015, which resulted in a period of hospitalization.

[99] A letter from WSIB indicated that Dariusz was entitled to a NEL payment of 34%, which was upgraded to 41% in February 2012. No adjustment has been made since that day. According to s. 47(1) of the WSIA, if a worker suffers permanent impairment as a result of the injury, the Board shall determine the degree of his or her permanent impairment expressed as a percentage of total permanent impairment when determining the NEL payment. Accordingly, I can infer that in 2012 Dariusz was considered to have a partial (41%) permanent disability with respect to his three accepted injuries.

[100] Dariusz provided a letter from the Canada Revenue Agency regarding his application for a disability tax certificate, requesting a report from his doctor. Despite his doctor indicating a permanent disability, there is no evidence that Dariusz receives the disability tax credit. Dariusz provided no other up to date medical evidence to support his complete inability to work other than MRI reports from March 2019 and July 2019. He also provided a copy of his accessible parking permit, which expired in February 2014. The March 2019 MRI report indicates:

Impression: Degenerative disc disease as described. Mild narrowing of the left L4-5 and L5-S1 lateral recesses due to diffuse disc bulge. This may cause mil left L5 radiculopathy.

[101] The MRI report in July 2019 states as follows:

SUMMARY:

1. Interval development of a right foraminal and subarticular zone disc protrusion resulting in severe right neural foramen and in impingement of the existing right C7 nerve root.

2. Mildly progressed multilevel degenerative changes, most pronounced at C4-5 with severe bilateral neural foraminal narrowing and C5-6 with severe left neural foraminal narrowing. There is flattening of the left ventral cord at C5-6. No definite cord signal abnormality.

[102] No change in Dariusz’s WSIB’s benefits occurred after the 2015 report from his doctor. In summary, the totality of evidence presented by Dariusz to show that he is completely unable to work in any manner consists of a letter from his doctor that is almost five years old and two MRI reports, which are six to ten months old, with no explanation or indication of the impact of these findings on Dariusz’s ability to work in any capacity – at any job. His family doctor was not called as a witness and no up to date medical notes and records were provided. No functional capacity expert evidence was offered. Dariusz asks this court to find that he is unable to earn any income whatsoever due to a finding of partial impairment with respect to his shoulder, lower back and knee, which the WSIB valued at $8,000 per year. Again, given Dariusz’s failure to provide any other information and the unexplained accumulation of wealth, I draw an adverse inference against Dariusz’s continued inability to be employed in any capacity.

[103] Section 19(1) of the Guidelines states:

19 (1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:

(a) 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;

(b) the spouse is exempt from paying federal or provincial income tax;

(d) it appears that income has been diverted which would affect the level of child support to be determined under these Guidelines;

(e) the spouse’s property is not reasonably utilized to generate income;

(f) the spouse has failed to provide income information when under a legal obligation to do so;

(g) the spouse unreasonably deducts expenses from income;

[104] The onus is on the person requesting an imputation of income to establish an evidentiary basis for such a finding: Homsi v. Zaya, 2009 ONCA 322, 248 O.A.C. 168, at para. 28.

[105] In Lawson v. Lawson (2006), 2006 CanLII 26573 (ON CA), 81 O.R. (3d) 321 (C.A.), at para. 36, the Court of Appeal for Ontario stated that:

When imputing income based on intentional underemployment, a court must consider what is reasonable in the circumstances. The factors to be considered are the age, education, experience, skills and health of the payor, as well as the payor's past earning history and the amount of income the payor could earn if he or she worked to capacity.

[106] In Corcios v. Burgos, 2011 ONSC 3326, at para. 40, and Thompson v. Thompson, 2013 ONSC 5500, at para. 99, the court considered various factors when determining whether to impute income to a party, and how much. These factors include:

a) There is a duty on the part of the payor to actively seek out reasonable employment opportunities that will maximize their income potential so as to meet the needs of their children;

b) The court will not excuse a party from their child support obligations or reduce these obligations where the party has persisted in un-remunerative employment, or where they have pursued unrealistic or unproductive career aspirations. A self-induced reduction of income is not a basis upon which to avoid or reduce child support payments;

c) If a party chooses to pursue self-employment or an alternative income earning path, the court will examine whether this choice was a reasonable one in all of the circumstances, and may impute an income if it determines that the decision was not appropriate having regard for the parent’s child support obligations;

d) A party may be imputed income if their unemployment or under-employment are self-induced. Examples include where the payor quits their employment for selfish or bad faith reasons or engages in reckless behaviour which affects their income earning capacity;

e) When a parent experiences a sudden change in their income, they may be given a “grace period” to adjust to the change and seek out employment in their field at a comparable remuneration before income will be imputed to them. However, if they have been unable to secure comparable employment within a reasonable time frame, they will be required to accept other less remunerative opportunities in order to satisfy their obligation to contribute to the support of their children;

f) Where a party fails to provide full financial disclosure relating to their income, the court is entitled to draw an adverse inference and to impute income to them;

g) The amount of income that the court imputes to a parent is a matter of discretion. The only limitation on the discretion of the court in this regard is that there must be some basis in the evidence for the amount that the court has chosen to impute;

i) A parent who decides to stay at home to care for subsequent children, or to work in the home at a reduced rate so that they can continue to care for the children, may be imputed a reasonable income in the absence of evidence to support a finding that the parent’s underemployment is required by the needs of the subsequent children within the meaning of section 19(1)(a) of the Guidelines.

[Citations omitted.]

[107] It is clear that there has been a lack of financial disclosure by Dariusz. There is also evidence that his lack of income after 2009 was self-induced due to his failure to cooperate with the WSIB. There is also a blatant lack of evidence of efforts by Dariusz to find any type of employment that is suitable to his partial permanent disability in certain joints. I infer that Dariusz made no efforts to find any type of employment because his financial needs were being met fully by his parents and the profits earned by the Extended Studzinski Family throughout the marriage.

[108] Based on these factors, I find that Dariusz is deliberately under-employed, or even deliberately unemployed, and that income is properly imputed to him. Given that Dariusz’s quantum of income from the Extended Studzinski Family is hard to particularize, and given the lack of financial disclosure by Dariusz, Lilia or Jozef, I will utilize Dariusz’s income from the most reliable source – his WSIB benefits – as a method to calculate the most reasonable income to impute. The evidence presented is clear that the WSIB would have continued his benefits if he had cooperated in retraining, or it deemed him able to earn all or part of the amount they were paying him. Instead of cooperating and retraining for a non-labour-intensive job such as property management, he in fact divested himself of the one property he did own and that was starting to earn a profit.

[109] In 2009, he was on track to make $45,644, which is grossed up to equate to $59,993. While no evidence nor calculation was provided showing the annual increase that a WSIB benefit recipient would be entitled to, I note that Dariusz would be entitled to an increase each year as set out in the WSIA, which is tied to the Consumer Price Index. Even a conservative increase of 1% per year would result in annual WSIB benefits in 2019 of approximately $50,000 to $51,000, which I have set at $50,860 for ease of calculations. If he had been earning this income, he would not be receiving the Social Assistance, but he would still be receiving his NEL benefits. Given the favourable tax treatment given to these benefits, both streams of income should be grossed up. The result is that income will be imputed to Dariusz of $70,000 from the date of separation onward.

E. Child Support Payable

[110] It is not disputed that the son lives with Emilia. It is also not disputed that Dariusz has paid nothing towards the support of his son since separation.

[111] Based on Dariusz’s imputed income of $70,000, his child support obligations are $654 per month. Assuming that the son’s needs were met in the month that Dariusz moved out, Dariusz is in arrears from September 1, 2018 until January 2020, a period of 17 months, for a total of $11,118. The applicable DivorceMate calculations are found at Schedule “A” to these Reasons.

[112] Regular monthly support should start as of February 1, 2020. Instead, Emilia has asked that she be paid a lump sum for child support up until the son is no longer a child of the marriage. The court’s authority to so order is found in s. 11 of the Guidelines and pursuant to s. 34(1)(b) of the Family Law Act R.S.O. 1990, c.F.3.

[113] The appropriateness of making a lump sum award of support was explored by the Court of Appeal for Ontario in Davis v. Crawford, 2011 ONCA 294, 106 O.R. (3d) 221. While this was in relation to spousal support, the principles are of assistance in our case. As the objectives of spousal support as set forth in the Family Law Act were reviewed by the Court of Appeal, the objectives of child support should be similarly reviewed. The Guidelines state

1 The objectives of these Guidelines are

(a) to establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both spouses after separation;

(b) to reduce conflict and tension between spouses by making the calculation of child support orders more objective;

(c) to improve the efficiency of the legal process by giving courts and spouses guidance in setting the levels of child support orders and encouraging settlement; and

(d) to ensure consistent treatment of spouses and children who are in similar circumstances.

[114] Section 33(7) of the Family Law Act states:

(7) An order for the support of a child should,

(a) recognize that each parent has an obligation to provide support for the child;

(b) apportion the obligation according to the child support guidelines.

[115] A lump sum award should not be made in the guise of support for the purpose of redistributing assets: Davis, at para. 60. The court does recognize though, that the purpose of a lump sum award should be distinguished from its effect. A lump sum award will always have the effect of transferring assets from one spouse to the other. The real question is to determine the underlying purpose of the order: Davis, at para. 62. Before awarding a lump sum, the court must determine the payor’s current assets and means (both now and in the future) and their capacity to pay a lump sum, as set out in s. 33(9) of the Family Law Act: Davis, at para. 64.

[116] Davis states that most importantly, a court considering lump sum support must weigh the perceived advantages and disadvantages of making such an order, which will be highly variable and case-specific and is an exercise of the court’s discretion: Davis, at paras. 66, 69

[117] While the factors considered in Davis were with respect to spousal support, they are applicable to lump sum child support cases as well. With respect to child support, there may be an advantage in limiting contact between the spouses when there were instances of domestic abuse. In addition, lump sum support should be considered in cases where there is a real risk of non-payment; where there was a lack of proper financial disclosure; where the payor has an ability to pay lump sum, but not periodic, support; and where a retroactive support award can be immediately paid: Davis, at para. 67. One of the disadvantages of a lump sum award is that it may prevent variation in cases where there is a real possibility that the means and needs of the parties will change and justify a variation. It can also be difficult to calculate the appropriate amount to be awarded: Davis, at para. 68.

[118] I find that this is an appropriate case in which to exercise my discretion and order that child support, both retroactive and prospective, be paid in a lump sum for the following reasons:

a) Dariusz is in a position at this time to pay his child support obligations given the sale of the Matrimonial Home; furthermore, given that he has divested himself of property, hides his income and wealth and collects a minimum of social assistance, the ability of Emilia to collect child support from Dariusz in the future is extremely limited;

b) Dariusz has not provided adequate financial disclosure of all his financial means;

c) Given the existence of a restraining order, there should be limited contact between Emilia and Dariusz; and

d) Their son will be 16 years old next month and there is little likelihood that Dariusz’s income, or in this case his ability to earn income, will change that significantly in the next two years; in these circumstances, the court has the ability to properly calculate the child support payable, as required by Warren v. Gilbert, 2006 CanLII 42643 (Ont. C.A.).

[119] Accordingly, I find that Dariusz should pay his prospective child support obligations for his son, from February 1, 2020 until June 30, 2022, when his son graduates high school, which is a period of 29 months. A lump sum should only be calculated until the end of the school year in the year that the son turns 18 years of age. If the child continues with full-time education after that date, either party may seek an order for child support thereafter. Given Dariusz’s imputed income of $70,000, his monthly obligation is $654 per month and the total amount payable for prospective child support is $18,966.

[120] With respect to section 7 expenses, Emilia has recently started a new position following her lay off from her long-time employer. While she has not worked for this new employer for a full year, she has disclosed that she earns $15.00 per hour and believes she will be able to earn $30,000 by picking up as many shifts as are offered to her, over and above her usual shifts. By using this income, and Dariusz’s imputed income, the appropriate split of section 7 expenses is 60% by Dariusz and 40% by Emilia for expenses incurred before her severance package ended at the end of November 2019. Thereafter, section 7 expenses should be 70% payable by Dariusz and 30% payable by Emilia.

[121] The parties are under contract with the Global Educational Trust Foundation whereby they are obligated to deposit the sum of $160.77 every month until and including August 25, 2022 for their son’s RESP. By August 2022, they expect to have between $37,528 and $48,325 available for their son’s education, depending on the performance of the fund. This is an appropriate section 7 expense to which the parties should contribute in proportion to their incomes. Emilia alone has been making these payments since separation and the amount owed should be included in a retroactive section 7 award. As with regular child support payments, I doubt that Dariusz will actually make the remaining payments. Accordingly, 70% of these remaining 31 monthly payments (February 2020 to August 2022 inclusive) should be paid to Emilia in advance. When their son starts his post-secondary education, this fund will be drawn from first before either party should be required to contribute their proportionate share of their son’s post-secondary expenses.

[122] Emilia has submitted a claim for various section 7 expenses, which can be categorized as follows: their son’s cell phone, her contributions to his education fund, psychologist fees for her son, life insurance premiums, hockey fees and associated expenses like skate sharpening, dentistry charges after insurance, school uniforms and school fees, and other sports gear such as running shoes, football protective wear and bike repairs.

[123] Firstly, some of the expenses claimed predate separation. I do not find that Emilia has established a need for any child support prior to that date.

[124] As set forth in Titov v. Titov, 2012 ONCA 864, at para. 23, when determining whether an expense should be considered reimbursable under s. 7 of the Guidelines, the court must determine whether the expense is in the child’s best interests and reasonable in relation to the means of the spouses and those of the child and the family’s spending pattern prior to separation.

[125] I have no hesitation find that psychologist fees and dental fees following separation are appropriate section 7 expenses. I have already determined that the payments to the RESP fund are appropriate section 7 expenses.

[126] I do not find that the premiums for the child’s life insurance are a section 7 expense. This is something Emilia decided to purchase herself and she will be the beneficiary in the unfortunate event that she receives the proceeds.

[127] With respect to the child’s cell phone, such an expense is not specifically referenced in s. 7 of the Guidelines. In this day and age, when most teens carry a cell phone and teachers allow for these tools in their classrooms, a cell phone may be considered a necessary expense for primary or secondary school or something necessary for the children’s extracurricular activities (ability to contact their parents for scheduling of activities, rides, etc.) Accordingly, I find that cell phone expenses for teenagers in high school should be included as a potential “extraordinary expense” related to school and extracurricular activities, as long as it meets the definition of same.

[128] “Extraordinary” is defined in s. 7(1.1) of the Guidelines. In determining if an expense is truly “extraordinary”, the court must look at the expense in relation to the resident parent’s income and the amounts they will be receiving for support, the nature of the expense, and the overall costs (along with other extraordinary expenses).

[129] Assuming Emilia’s income of $30,000 and her child support received at the equivalent of $654 per month, the son’s cell phone charges are extraordinary. I also find any hockey registration fees and tournament fees to be extraordinary. School uniforms are a section 7 expense as well, as is the safety equipment necessary to play hockey and footfall. The remainder of the expenses, such as school fees, skate sharpening, various balls and shoes and bicycle repairs, are expenses that Emilia should pay for out of her child support payments.

[130] Accordingly, up until the end of January 2020, Dariusz owes to Emilia the sum of $8,370.27 in retroactive section 7 expenses. The expenses accepted and the proportionate sharing of these expenses is set out in Schedule B hereto.

F. Spousal Support

[131] Both parties have sought spousal support from the other. Emilia entered the marriage working full time in a graphic printing firm. She maintained that job throughout her marriage. Although she took maternity leave, she eventually returned to work full time. Unfortunately, in December 2018, shortly after separation, Emilia’s employment with the graphic printing firm was terminated. She received severance payments for approximately one year. Since then, she has found alternate employment at a retirement community but at a significantly lower rate of pay. Emilia stated that the only similar position she could find was too far away and she wanted to be closer to help with the child, who has many extra-curricular activities. Given the fractured nature of the child’s relationship with the father, she is generally responsible for all of these activities. She works in housekeeping and takes extra shifts as cleaning staff, up to 52 hours per week. I am satisfied she is making all reasonable efforts to support herself. She anticipates earning $30,000 per year going forward.

[132] During the marriage, following his injury, Dariusz had no consistent employment. He received WSIB for a period of time until he was disqualified, as outlined above. He is receiving Ontario Works. Dariusz claims he is in need of support. Despite this, he has not bothered to cash his small WSIB cheques for approximately three years, while accumulating $250,000, and felt this was an appropriate time to “repay” his parents the sum of $160,000, while still having an additional $130,000 in savings. He took almost a year to even respond to the Application and seek spousal support himself.

[133] Dariusz started the marriage working with his parents in some capacity or another. He ended the marriage doing the same. The net worth of the Extended Studzinski Family has increased throughout the course of the marriage to the exclusion of Emilia. It is clear on the evidence that Dariusz continues to enjoy the benefit of his extended family’s wealth. The marriage and the separation did nothing to change that, and in fact, Emilia’s continued employment probably assisted him. On the evidence, I am not satisfied that Dariusz has established either a compensatory or a non-compensatory claim. Dariusz has not proven that his physical ailments prohibit him from finding some type of employment, nor does he appear to even need it. The evidence supports the conclusion that Dariusz is able to manage three commercial properties and continue to increase his personal wealth.

[134] Emilia also claims she is in immediate need of support. Emilia finds herself in a different situation following the separation. All of her employment income during the marriage went into the home, groceries and raising her son. Dariusz was allowed to work with his parents in some capacity throughout and to earn income, to the exclusion of Emilia. He contributed minimally from his WSIB income. With the exception of her pension and her interest in the home, Emilia has minimal savings. She has minimal post-secondary education.

[135] I find that Emilia has established a non-compensatory claim for spousal support. As a result of her lower-paying job, Emilia requires spousal support to alleviate the economic consequences of her separation. Taking into consideration Emilia’s immediate need, the fact that she retains custody of the child, her age and the difficulties she is facing having been terminated from her long-time employer, Dariusz’s lack of financial disclosure and his probable additional hidden income, spousal support should be paid in the mid to high end of the range.

[136] For the period of August 2018 to November 2019, and utilizing the income imputed to Dariusz, no spousal support is payable. Following December 2019, when Emilia’s income is reduced to $30,000, the mid to high range of spousal support is $250 per month. For the same reasons as set forth above, a lump sum spousal support payment is appropriate in these circumstances, which is set at $65,000, being in the mid to high end of the range.

G. Equalization

[137] In order to determine the proper equalization payment to be made, the ownership interests in several properties must be determined. Other comments will also be made with respect to other assets or debts to be placed on the net family property statement.

i. The Dundas Property

[138] The Applicant maintains that Lilia holds the entire Dundas Property in trust for Dariusz. The Respondents maintain that while Dariusz owned title to the Dundas Property at the date of marriage, he transferred it first to his brother and then to his mother in exchange for being released from debt. Accordingly, at the date of separation, he held no interest in that property and it should not be included in the equalization calculation.

[139] The Applicant argues a variation of the “joint family venture” argument. She is not claiming that she and Dariusz were in a joint family venture, but rather that Dariusz was in a joint family venture with the Extended Studzinski Family. As a result, Dariusz has an interest in any properties held in their names and his interests are subject to equalization.

[140] The extension of the joint family property analysis in this manner is not necessary. The principles of a resulting trust can address the situation before this court.

[141] A resulting trust arises when title to property is in one party’s name, but that party, because they gave no value for the property, is under an obligation to return it to the original titled owner: Pecore v. Pecore, 2007 SCC 17, [2007] 1 S.C.R. 795, at para. 20. This is a rebuttable presumption. In other words, it is a presumption the court will make if insufficient evidence is adduced to displace the presumption. The presumption shifts the burden of persuasion to the opposing party who must rebut the presumption: Pecore, at para. 22. The burden of proof on the opposing party is on the balance of probabilities: Pecore, at para. 43. This presumption provides a guide for the courts in resolving disputes over transfers where the evidence as to the transferor’s intent in making the transfer is unavailable or is unpersuasive: Pecore, at para. 23 (emphasis mine).

[142] The presumption of a resulting trust applies to gratuitous transfers. Where a transfer is made for no consideration, the onus is placed on the transferee to demonstrate that a gift was intended. This is because equity presumes bargains, not gifts: Pecore, at para. 24.

[143] In determining the intention of the transferor, the court should look at the intention of the transferor at the time of the transfer but may also consider evidence subsequent to the transfer that is relevant to the intention of the transferor at the time of the transfer: Pecore, at paras. 56-59.

[144] I have already found that the purchase of the Dundas Property was a gift to Dariusz. The next transfer to consider is the transfer from Dariusz to Gregorz in 2004. While Gregorz did not pay any money to Dariusz, Dariusz did receive a financial benefit from the transaction in that on the same day the Studzinski Mortgage in the sum of $206,250 was discharged. Accordingly, this transfer was not gratuitous, and the principles of resulting trust are not applicable. On that day, Dariusz transferred to Gregorz legal and beneficial ownership of half of the Dundas Property.

[145] By contrast, the transfer from Dariusz to Lilia in 2008 of his remaining 50% interest was gratuitous. While Jozef, Lilia and Dariusz all maintain that the transfer was made to forgive debt, for the reasons set out, the evidence does not support that conclusion. Accordingly, this transfer was gratuitous and there is a presumption of a resulting trust. Lilia is assumed to hold title in trust for Dariusz unless she can rebut that presumption. On the evidence before me, she, Jozef and Dariusz have failed to rebut that presumption.

[146] I find no evidence of a loan to Dariusz as of 2008. Money was distributed and shared amongst the Extended Studzinski Family as before. In 2008, Dariusz was in the process of applying for WSIB benefits. His income replacement claim was reliant on whether he was able to earn income in any other way. I infer that his ability to earn income from the Dundas Property would have had an impact on his ability to collect LOI WSIB benefits. He needed to divest himself. This alone though, does not rebut the presumption of a resulting trust. The Court of Appeal for Ontario has determined that the motivation to shield property from a transferring spouse’s creditors does not in and of itself rebut the presumption of a resulting trust in a gratuitous transfer between spouses. The intention of the transferor must be ascertained from all the evidence: Korman v. Korman, 2015 ONCA 578, at para. 38. I find this principle is equally applicable with respect to a transferor motivated to shield their income or property in order to support a disability claim.

[147] Upon reviewing the evidence as a whole, I find that the presumption of resulting trust has not been rebutted. I find that Lilia holds 50% of the Dundas Property in trust for Dariusz. The Dundas Property has been valued at $775,000, thereby putting Dariusz’s share at $387,500.

ii. The Matrimonial Home

[148] There is ample evidence on the record before me to support the finding that Lilia was an owner of 50% of the Matrimonial Home despite never living there. She and Jozef invested a substantial amount of money into the home and registered her name as an equal owner to protect her investment. She even utilized the equity in the Matrimonial Home in 2007 for other uses, potentially to purchase property in Alberta in her and Jozef’s name. Accordingly, Lilia is entitled to one-half of the proceeds of sale subject to the adjustments indicated herein. Dariusz has made a claim that he is a beneficial owner of Emilia’s half of the Matrimonial Home through a constructive trust, which claim has been made out. Accordingly, 50% of the value of Emilia’s interest in the Matrimonial Home will be divided between Emilia and Dariusz for the purposes of equalization.

iii. Lakeshore and Etobicoke Properties

[149] Lilia, Jozef and Dariusz agree that the funds transferred to Jozef and Lilia were used to purchase 3351 Lake Shore and 745 Lakeshore.

[150] For reasons already set out, the Respondent’s contention that this money was advanced to repay a loan is not credible. It is clear that the first time the Respondents took the position that Dariusz was repaying a loan was in the course of this trial, directly in contrast to their Financial Statements and trial affidavits.

[151] Once again, the principles of resulting trusts assist in the resolution of this issue. As stated by Rothstein J. in Nishi v. Rascal Trucking Ltd., 2013 SCC 33, [2013] 2 S.C.R. 438, at para. 1:

A purchase money resulting trust arises when a person advances funds to contribute to the purchase price of property, but does not take legal title to that property. Where the person advancing the funds is unrelated to the person taking title, the law presumes that the parties intended for the person who advanced the funds to hold a beneficial interest in the property in proportion to that person’s contribution. This is called the presumption of resulting trust.

[152] The purchase money resulting trust is a species of gratuitous transfer resulting trust, where a person advances a contribution to the purchase price of the property without taking legal title: Nishi, at para. 21. Again, the presumption prevails unless it is rebutted by evidence that at the time of the contribution, the person making the contribution intended to make a gift to the person on title. While the most important consideration is the evidence at the time of the transaction, evidence afterwards can be admitted, guarding against self-serving evidence of a change of intention over time: Nishi, at para. 2.

[153] While the test laid out in Nishi appears to require the transferor and the transferee to be unrelated, subsequent case law shows that transfers amongst family have been caught by this presumptive trust. Section 14 of the Family Law Act specifically states that the presumption of a resulting trust will continue to apply to spouses. In 2016, relying on Nishi, Pecore and Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269, the Court of Appeal for Ontario in Andrade v. Andrade, 2016 ONCA 368, 131 O.R. (3d) 532, at para. 98, found that a mother was the beneficial owner of property owned by her adult children by way of a purchase money resulting trust. In Bao v. Mok, 2019 ONSC 915, a daughter was initially found to hold property in trust for her parents who advanced the funds to purchase the property. In this case though, the presumption was rebutted.

[154] The presumption applies to these facts. It is agreed that the money from Dariusz was used by Lilia to purchase 3351 Lake Shore and 745 Lakeshore, and therefore it is presumed that Lilia was to hold that contribution in trust for Dariusz. It is now up to Dariusz and Lilia to rebut that presumption by demonstrating on a balance of probabilities that the contribution was actually a gift, or in this case, a repayment of a loan to do with as they please: Nishi, at para. 2; Pecore, at 24.

[155] Upon reviewing the evidence in its entirety, I do not find that this presumption has been rebutted. By contrast, the evidence, on the balance of probabilities, shows that it was the intention of Dariusz and Lilia that Dariusz acquire an ownership interest in these two properties to the exclusion of Emilia and that no such loan existed.

[156] Accordingly, I find that Dariusz holds an interest in 3351 Lake Shore and 745 Lakeshore by way of a purchase money resulting trust, in proportion to his contribution. The purchase price of 3351 Lake Shore was $475,000, and his contribution was $100,000, or 21%. In her sworn Financial Statement, Lilia estimated the date of separation value of the property to be $650,000. This was confirmed by Jozef in his evidence. I am relying on this evidence given by the Respondent. Although I have concerns that this amount is an undervaluation, in the absence of any more current evidence on the value by either party, the court’s hands are tied. Accordingly, I value Dariusz’s interest in this property to be 21% of $650,000, or $136,500.

[157] With respect to 745 Lakeshore, Dariusz paid $59,932.54 towards the purchase price of $248,000, or 24%. In her sworn Financial Statement, Lilia estimated the current value of this property to be $300,000. For the reasons given, I am prepared to accept this value and shall value Dariusz’s interest in this property to be 24% of $300,000, or $72,000.

iv Child’s Account

[158] Despite this account being in the name of the child, Dariusz has made it clear that the monies contained therein are the benefits he received from WSIB and that they are his to use. Accordingly, he included this account in his Net Family Property Statement to be equalized. This is appropriate. Despite Emilia’s wish that this money be retained for their son’s future, this money should clearly revert to Dariusz by way of resulting trust.

v. Debts of Dariusz

[159] The Net Family Property Statements of both Emilia and Dariusz list two credit card debts for Dariusz – a debt of $24,500 for a Bank of Montreal Master Card and a $7,000 debt for a PC Mastercard. Neither party provided any evidence of this debt. The credit card statements that Emilia was able to locate from the Bank of Montreal relate to 2012 and 2014, three years prior to separation. There are no statements relating to a PC Mastercard. Emilia did provide statements for Dariusz’s American Express card as of March 2018. Given the proximity to the date of separation, I am prepared to accept this value for the debt relating to the American Express card. With respect to the remaining claimed debts, I make an adverse inference against Dariusz for failing to prove them. These debts shall not be included in the net family property calculation.

vi. Exclusion of WSIB Benefits

[160] Dariusz maintains that the WSIB benefits in his son’s account arose from a personal injury and, as a result, should be excluded from the calculation of his net family property, pursuant to s. 4(2)3 of the Family Law Act.

[161] Dariusz has mischaracterized these benefits. They are not in the nature of “general damages” to compensate an injured party for pain and suffering. Disability payments that are being received by a party at the time of separation are considered income, even if there is a future entitlement to those benefits. It is not to be treated like a pension that should be valued and included in the equalization calculation. The income received through those benefits should be taken into consideration when support obligations are calculated: Lowe v. Lowe (2006), 2006 CanLII 804 (ON CA), 78 O.R. (3d) 760 (C.A.), at paras. 12-17. This approach was recently affirmed with respect to annuity payments received through a structured settlement received as a result of a motor vehicle accident: Hunks v. Hunks, 2017 ONCA 247, 136 O.R. (3d) 641, at para. 49. Accordingly, if any of these funds are in a savings account on the day of separation, they should be included in his Financial Statement but they are not subject to an exclusion.

vii. Joint Bank Accounts with Jozef and Lilia

[162] Jozef and Lilia maintain that the accounts on which Dariusz is listed as a joint owner are actually their personal accounts and that Dariusz has no interest in them. They dispute that these accounts should be included in the equalization calculation.

[163] With respect to the bank accounts that were set up to manage 745 Lakeshore and 3351 Lake Shore, this argument fails. I have found that Dariusz is a beneficial owner of these properties, and accordingly he is entitled to the proceeds of the account that manages that property.

[164] With respect to the other joint account, while it is clear that Jozef and Lilia’s pension income is deposited in that account, there is no evidence as to the nature of the other deposits or withdrawals and whether they are related to Dariusz. Given that there are admittedly six or seven accounts on which Dariusz is an owner, and documents regarding at least four of these accounts have not been produced, I draw an adverse inference that Dariusz has some interest in these accounts. I am including the balances of those accounts for which I have information.

viii. Contents of the Matrimonial Home

[165] Dariusz’s evidence with respect to the value of the contents of the Matrimonial Home or their belongings is inconsistent. He disagreed with the values listed in his Financial Statement prepared the night before. Both parties disputed the proper division of the contents of the Matrimonial Home. Unfortunately, neither party sought to have ownership of certain items proven and neither had the contents valued. Accordingly, I decline to attribute the value of any contents to either party.

ix. Conclusion of Equalization Payment

[166] Based on these findings, Dariusz is required to pay to Emilia the sum of $286,884.54 to equalize their net family property values. The Revised Net Family Property Statement is attached as Schedule “C”.

H. Unequal Division of Net Family Property

[167] Emilia seeks an unequal division of net family property under s. 5(6) of the Family Law Act. The Court of Appeal for Ontario has stated in Serra v. Serra, 2009 ONCA 105, 93 O.R. (3d) 161, at para. 47. that

…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" (citations omitted).

[168] Given the operation of the resulting trust and Dariusz’s agreement to include his son’s account in his equalization calculation, the resulting equalization does not shock the conscience of the court. Accordingly, there is no basis for an unequal division.

I. Post-Separation Adjustments

i. Advances

[169] On April 5, 2019, Stribopoulos J. noted that Dariusz had yet to pay any child support and ordered that Emilia should be advanced $50,000 from the proceeds of sale in order to support the child. Accordingly, an adjustment should be made to reflect Emilia’s receipt of these funds. In addition, each party also received $25,000 as an advance of their eventual entitlement, which should be accredited to each party.

ii. Real Estate Commission

[170] In accordance with the order of Dennison J. dated September 25, 2018, the Matrimonial Home was listed for sale with Mr. Masroor Ahmed of Centre 21 New Age Realty Inc. acting as the parties’ agent. A listing agreement was signed on October 3, 2018 by Emilia and Lilia which indicated that Mr. Ahmed would be paid 4% commission upon the sale.

[171] Unfortunately, Emilia encountered much difficulty in selling the house. Stribopoulos J. has already made a finding on the evidence before him that Dariusz and Lilia behaved unreasonably in order to frustrate the sale. I have heard no other evidence at trial that would change that finding. As a result of that behavior, Emilia was given the authority to accept any offer to purchase over $850,000 without the consent of Lilia. In addition, the order of Stribopoulos J. of April 5, 2019 allowed Emilia to direct the real estate lawyer to pay out all necessary disbursements from the proceeds of the sale in order to close on the sale without the consent Dariusz or Lilia.

[172] Emilia started fresh and signed a new listing agreement with Mr. Ahmed wherein she agreed to pay him 5% commission on any sale. Given that she eventually accepted an offer of $858,000, which was greater than the amount needed in order to dispense with the consent of Lilia or Dariusz, I find that Lilia and Dariusz’s consent was not necessary to pay Mr. Ahmed the higher commission.

[173] Despite this new listing agreement, Dariusz and Lilia refused to release anything more than 3.5% to Mr. Ahmed. In order to pay the purchaser’s agent his commission immediately, Mr. Ahmed accepted the 3.5% but continues to seek the additional 1.5% owing to him. Dariusz and Lilia’s refusal to even honour their initial agreement to pay 4%, let alone 5%, is but another indication of their efforts to obstruct any effort by Emilia to move forward in this litigation.

[174] Mr. Ahmed is entitled to his additional 1.5% commission plus H.S.T., which should be paid from the proceeds of sale.

iii. Decreased Sale Price of Matrimonial Home

[175] Emilia also argues that but for the unreasonable conduct of Dariusz and Lilia, the parties would have received more for the Matrimonial Home. Emilia points to an offer to purchase for $875,000, made on January 6, 2018, wherein the potential purchasers waived their only condition, which related to financing. The offer contains no other condition with respect to an inspection. Paragraph 13 explicitly states that the purchaser had an opportunity to request an inspection but did not. Lilia refused to accept it and counter-offered an unreasonable amount. Accordingly, I find on the balance of probabilities that but for the disruptive conduct of Dariusz and Lilia, the parties would have had a firm contract wherein they would have received $875,000 for the Matrimonial Home. In addition, had they accepted that offer (which was in accordance with the recommendations of Mr. Ahmed), they would have only been obligated to pay 4% real estate commission.

[176] The actual damages suffered by Emilia are not difficult to calculate:

$875,000 less 4% commission plus HST = $835,450

$858,000 less 5% commission plus HST = $809,523

Difference: $25,927

[177] Given that Emilia only owns 50% interest in the home, her loss is $12,963.50. That loss should be paid to her from Lilia’s share of the proceeds of the Matrimonial Home.

iv. Small Claims Court Action

[178] After the sale of the Matrimonial Home closed, the purchasers undertook some renovations. In the course of these renovations, they discovered a mouse infestation. As a result, they sued both owners, Lilia and Emilia, for the sum of $15,000, being the amount they claim was required to remediate the issues.

[179] Lilia did not respond to the claim; only Emilia defended it. She retained a paralegal to assist her. In the end, Emilia decided to settle the claim and paid the sum of $7,000 in full satisfaction of the claim. To date, she has also paid the sum of $621.50 to her paralegal. She claims a further invoice is ongoing, but she had not yet received it as of the date of trial. She is claiming half of the settlement and her paralegal fees from Lilia. Lilia claims the mouse infestation is not her problem, as she did not live in the home. Also, she is critical of Emilia’s decision to settle and the amount for which she settled.

[180] Lilia’s position is untenable. Lilia chose not to respond to the claim. Had Emilia also chosen not to respond, there would be a default judgment against both of them for $15,000 plus costs. Emilia’s efforts to retain counsel, defend the claim and settle for only half of the claim saved Lilia at least $7,000. Lilia could have elected to defend the claim. She may have been successful in throwing the claim out. She may have been successful in having the claim thrown out as against her alone. Instead she chose to do nothing and left it with Emilia to defend and then to pay. She claimed she owns half of the Matrimonial Home, and I have concluded that she does. She should therefore accept half of this responsibility associated with the Matrimonial Home. Lilia should pay for one-half of Emilia’s legal fees that have been proven and one-half of the settlement. Lilia’s share of these expenses has already been paid from the proceeds of sale, so no further adjustment is required.

v. Miscellaneous Amounts

[181] A costs order was made against Dariusz for $600 by Trimble J. on June 18, 2019, which was not paid. That should come from Dariusz’s share of the proceeds of sale.

[182] A new furnace was required to sell the house, at a cost of $2,599. That is a fixture and the cost should be split between the owners Emilia and Lilia.

[183] Emilia was required to rent several disposal bins to remove what she said was Dariusz’s garbage to ready the Matrimonial Home for sale. The disposal bins cost $746.48 in total and are a proper expense to be shared equally by the occupants Emilia and Dariusz.

[184] On April 5, 2019, Stribopoulos J. ordered that the removal of items from the Matrimonial Home be supervised by an individual selected by the real estate agent. Emilia had to pay that supervisor the sum of $1,491.60. This expense should be shared equally by Emilia and Dariusz. Both parties complained about the other’s dishonesty with respect to the contents of the Matrimonial Home and both benefited from an independent observer.

J. Conclusion

[185] Counsel provided Mr. Deep’s Statement of Adjustments and Trust Ledger, which shows the proceeds of sale of the matrimonial home, the amounts paid out to date and the amount remaining in trust. There will be insufficient funds from Dariusz’s share of the proceeds to satisfy all his obligations to Emilia. Accordingly, Dariusz’s share of the proceeds will be transferred to Emilia, and Dariusz will be subject to a payment order and the appropriate security will be ordered for the remainder owing.

[186] For the reasons set forth herein, I make the following orders:

a) As of January 31, 2020, the child support arrears owed to Emilia by Dariusz for the support of the child Oscar Studzinski, born March 25, 2004, are fixed in the amount of $11,118;

b) As of January 31, 2020, the arrears of section 7 expenses owed to Emilia by Dariusz for the support of the child Oscar Studzinski, born March 25, 2004, are fixed in the amount of $8,370.27;

c) Dariusz shall pay to Emilia for the prospective child support of the child Oscar Studzinski, born March 25, 2004, for the period of February 1, 2020 to June 30, 2022, a fixed lump sum of $18,966;

d) Either Dariusz or Emilia may seek the continuation of child support payments for the benefit of the child following June 30, 2022, if said child continues to be a child of the marriage;

e) Commencing February 1, 2020, Dariusz shall reimburse to Emilia 70% of all section 7 expenses incurred by Emilia for the benefit of the child, within 14 days of her providing proof of the expense and proof of payment;

f) The child’s cell phone, school uniforms, hockey registration fees and safety equipment for any sport in which the child participates shall be considered extraordinary expenses; Emilia shall not be entitled to Dariusz’s contribution to any other extraordinary expenses unless Dariusz consents to such expense, in advance and in writing, his consent to not be unreasonably withheld;

g) Any communication with respect to the reimbursement of section 7 expenses or the seeking of consent to same shall be in accordance with any restraining order in place, or variations thereto;

h) Dariusz shall pay to Emilia his prospective share of his contributions to the child’s RESP, held by the Global Educational Trust Foundation, fixed in the lump sum of $2,990.32;

i) If the child pursues post-secondary education, the funds accumulated in the Global Educational Trust Foundation RESP fund should be expended first to cover post-secondary costs prior to either party being required to contribute further; if funds are not completely expended when the child’s post-secondary education is complete, or the child elects not to pursue post-secondary education, the funds contained in said RESP shall be dispersed equally to the parties;

j) Dariusz shall pay to Emilia a lump sum payment of $65,000 in full satisfaction of her claim for spousal support;

k) Dariusz’s claim for spousal support is dismissed;

l) Dariusz and Emilia shall sign whatever documentation is required to ensure that Emilia has no entitlement or access to the funds contained in account number 00014929811 held by the Bank of Nova Scotia, in the name of Oscar Studzinski, or both shall cooperate in closing or transferring these funds as Dariusz so directs;

m) Lilia is the owner of 50% of the Matrimonial Home; Dariusz and Emilia each are the owner of 25% of the Matrimonial Home;

n) Dariusz is the beneficial owner of 50% of the Dundas Property, which ownership interest is valued at $387,500 as of the date of separation;

o) Dariusz is the beneficial owner of 24% of the 745 Lakeshore Property, which ownership interest is valued at $72,000 as of the date of separation;

p) Dariusz is the beneficial owner of 21% of the 3351 Lake Shore Property, which ownership interest is valued at $136,500 as of the date of separation;

q) Dariusz shall pay to Emilia the sum of $286,884.54 to equalize their net family property values;

r) Lilia shall pay to Emilia post-separation adjustments for the decreased sale price in the sum of $12,963.50 and for the new furnace for the Matrimonial Home in the sum of $1,299.50;

s) Dariusz shall pay to Emilia post-separation adjustments for the cost of the disposal bins in the sum of $373.24, for the security costs in the sum of $745.80 and for the unpaid costs order in the sum of $600.00;

t) The sum of $12,870 plus H.S.T. of $1,673.10, for a total of $14,543.10, shall be paid forthwith to Century 21 New Age Realty Inc., from the proceeds of sale of 5622 Ruby Walk Way, Mississauga;

u) In full satisfaction of the obligations of Lilia to Emilia set forth in subparagraphs 186(r) herein, in full satisfaction of the obligations of Dariusz to Emilia set forth in subparagraphs 186(a)(b)(c)(h)(j) and (s) herein and in partial satisfaction of Dariusz’s obligation to Emilia set forth in subparagraph 186(q), the proceeds of sale from the Matrimonial Home will be dispersed as follows:

1. To Lilia, or how she directs, the sum of $357,622.85;

2. To Dariusz, nil;

3. To Emilia, or how she directs, the sum of $311,148.90;

(Calculations Attached as Revised Schedule D)

v) If there are any remaining proceeds from the sale of the Matrimonial Home, they shall be distributed on the following basis: 25% to Emilia, 25% to Dariusz and 50% to Lilia.

w) The payment set forth in subparagraph 186(u) does not fully satisfy Dariusz’s obligation to equalize the net family property. Accordingly, Dariusz will pay to Emilia the sum of $221,605.22 as the remainder of his obligation to equalize net family property values, within 21 days from the release of this decision. If he fails to do so, and as security for this obligation, Emilia is entitled to a mortgage against title to the Dundas Property, 3351 Lake Shore and 745 Lakeshore, for the amount not paid, at an interest rate in accordance with the Courts of Justice Act, and with a maturity date of six months from the date of this Judgment. A term of the mortgage will be that Dariusz is responsible for the cost of registering the mortgage and any costs of collection, payable on a full indemnity basis.

x) Either party may move for a divorce, in writing, unopposed and without costs, when the Court reopens after the current COVID-19 crisis.

y) The parties are encouraged to resolve the issue of costs themselves. If they are unable to do so, Emilia shall serve and file her written submissions, restricted to two pages, single sided and double-spaced, exclusive of costs outline and offers to settle, no later than 4:30 p.m. on June 5, 2020; Dariusz and Lilia shall serve and file their responding submissions, with the same restrictions, no later than 4:30 p.m. on June 19, 2020; any reply submissions by Emilia, with the same size restrictions, shall be served and filed no later than 4:30 p.m. on June 26, 2020; if no submissions are received by June 5, 2020, there shall be no costs. All costs submissions shall be e-mailed to scjtrialofficebrampton@ontario.ca, directed to my attention. No submissions may exceed 10MB.

Fowler Byrne J.

Released: May 22, 2020

SCHEDULE “A”

Schedule "B"

Date of Separation to November 2019

Date

Expense

Full Cost

E's share (40%)

D's share (60%)

10-Oct-18

FVB Psychologists

$220.00

$88.00

$132.00

26-Nov-18

FVB Psychologists

$220.00

$88.00

$132.00

08-Jan-19

FVB Psychologists

$220.00

$88.00

$132.00

10-Apr-19

FVB Psychologists

$220.00

$88.00

$132.00

28-May-19

FVB Psychologists

$220.00

$88.00

$132.00

25-Aug-18

Global Education

$160.77

$64.31

$96.46

25-Sep-18

Global Education

$160.77

$64.31

$96.46

25-Oct-18

Global Education

$160.77

$64.31

$96.46

25-Nov-18

Global Education

$160.77

$64.31

$96.46

25-Dec-18

Global Education

$160.77

$64.31

$96.46

2019

Global Education (Jan. to Nov.)

$1,768.47

$707.39

$1,061.08

2020

Global Education (January only)

$160.77

$64.31

$96.46

01-Aug-18

child's cell phone

$56.50

$22.60

$33.90

01-Sep-18

child's cell phone

$56.50

$22.60

$33.90

01-Oct-18

child's cell phone

$56.50

$22.60

$33.90

01-Nov-18

child's cell phone

$56.50

$22.60

$33.90

01-Dec-18

child's cell phone

$56.50

$22.60

$33.90

2019

child's cell phone (one year)

$452.00

$180.80

$271.20

2019

child's cell phone (January only)

$56.50

$22.60

$33.90

26-Feb-19

Lorne Park Dentistry

$61.75

$24.70

$37.05

22-Apr-19

Lorne Park Dentistry

$43.50

$17.40

$26.10

24-Aug-19

Village Orthodontics

$5,500.00

$2,200.00

$3,300.00

01-Mar-19

McCarthy School Uniforms

$45.19

$18.08

$27.11

01-Apr-19

McCarthy School Uniforms

$219.15

$87.66

$131.49

11-Apr-19

MOHA

$384.20

$153.68

$230.52

03-May-19

May Madness Hockey

$125.00

$50.00

$75.00

22-Jul-19

Applewood Hockey Association

$730.00

$292.00

$438.00

20-Sep-19

Applewood Hockey Association

$595.00

$238.00

$357.00

20-Sep-19

Applewood Hockey Association

$50.00

$20.00

$30.00

20-Sep-19

away tournament expenses

$495.00

$198.00

$297.00

30-Apr-19

West Star Hockey Shop

$33.90

$13.56

$20.34

31-Aug-19

Pro Hockey Life

$96.00

$38.40

$57.60

31-Aug-19

Pro Hockey Life

$440.70

$176.28

$264.42

As of December 2019

E's share (30%)

D's share (70%)

2019-20

Global Education (Dec.'19 & Jan. '20)

$321.54

$96.46

$225.08

2019-21

child's cell phone (Dec.'19 & Jan. '20)

$113.00

$33.90

$79.10

Total Owed by Dariusz:

$8,370.27

ONTARIO

Court File Number

Superior Court of Justice, Family Court

FS-18-0217-00

(Name of Court)

at

7755 Hurontario Street, Brampton, Ontario

SCHEDULE “C”: Revised

Net Family

Property Statement

(Court office address)

(1) Applicant(s)

(2)

Full legal name & address for service — street & number, municipality, postal code, telephone & fax numbers and e‑mail address (if any).

Lawyer’s name & address — street & number, municipality, postal code, telephone & fax numbers and e‑mail address (if any).

Emilia Studzinski

(3) Respondent(s)

Full legal name & address for service — street & number, municipality, postal code, telephone & fax numbers and e‑mail address (if any).

Lawyer’s name & address — street & number, municipality, postal code, telephone & fax numbers and e‑mail address (if any).

Dariusz Studzinski

Lila Studzinski

My name is (full legal name)

(1)

The valuation date for the following material is (date)

August 21, 2018

(2)

The date of marriage is (date)

July 13, 2002

(Complete the tables by filling in the columns for both parties, showing your assets, debts, etc. and those of your spouse)

Table 1: Value Of Assets Owned on Valuation Date (List in the order of the categories in the financial statement)

PART 4(a): LAND

Nature & Type of Ownership

(State percentage interest)

Address of Property

WIFE

HUSBAND

Matrimonial Home – 25% Ownership by Emilia, 25% Ownership by Derek; 50% ownership by Lilia

5622 Ruby Walk - Proceeds of sale: $855,340.46 prior to advance to Emilia

$213,835.12

$213,835.12

50% ownership by resulting trust

75 Dundas Street West, Mississauga – full value as of August 2018 at $775,000

$387,500.00

21% ownership by resulting trust

3351 Lake Shore Blvd West., Etobicoke

Based on Respondent’s estimate of value of $650,000

$136,500.00

24% ownership by resulting trust

745 Lakeshore Road East, Mississauga

$72,000.00

Based on Respondent’s estimate of value of $300,000

15. Totals: Value of Land

$213,835.12

$809,835.12

PART 4(b): GENERAL HOUSEHOLD ITEMS AND VEHICLES

Item

Description

WIFE

HUSBAND

Household goods

No values proven

& furniture

Cars, boats,

Mitsubishi Lancer

$5,995.00

vehicles

2008 Toyota Rav 4

$5,000.00

Jewellery, art,

(no financial disclosure of valuation provided, Wife’s value utilized)

electronics, tools,

sports & hobby,

equipment

Other special

items

No valuations provided

16. Totals: Value of General Household Items and Vehicles

$5,995.00

$5,000.00

PART 4(c): BANK ACCOUNTS AND SAVINGS, SECURITIES AND PENSIONS

Category

(Savings, Checking, GIC,

RRSP, Pensions, etc.)

Institution

Account Number

WIFE

HUSBAND

Bank Account – Joint

Scotiabank – total balance as of August 21, 2018 - $416.90

4761 88

$208.45

$208.45

Pension

Supremex Inc. (Defined Contribution)

198553 826

$99,507.90

Pension

Loss of Retirement Income Benefit – WSIB (as of Dec. 31, 2017)

17245317

$18,441.79

Investment – TFSA

Scotiabank (as of July 12, 2018)

64215524

$30,845.54

Investment – Non-registered

Scotiabank (USD but Cdn equivalent from statement stated (as of July 12, 2018)

420137

$4,128.52

Investment (GIC)

Scotiabank (in name of Oscar Studzinski) as of July 3, 2018

14929811

$96,893.62

Bank Account – joint with L and Josef

Scotiabank – total balance of $7,300.11 (for 745 Lakeshore East, Mississauga) – one-third stated

2859 86

$2,433.37

Bank Account – joint with L and Josef

Scotiabank – total balance of $13,079.65 (for 3351 Lake Shore Blvd. W., Etobicoke) – one-third stated

2853 82

$4,359.88

Bank Account – Joint with L and Josef

Scotiabank – was of May 9, 2018 (no further disclosure provided) – one-third stated

13342 00652 26

$3,379.92

Bank Account – Joint with L and Josef

Scotiabank – evidence of existence established in 2016

97832 0288187

Not disclosed

Bank Account – Joint with L and J

Scotiabank – evidence of existence in 2017

97832 0029173

Not disclosed

Global Education Fund (RESP)

Jointly owned, for benefit of child: $31,680.37 as of Dec. 31, 2017.

17. Totals: Value of Accounts and Savings

$99,716.35

$160,691.09

PART 4(d): LIFE AND DISABILITY INSURANCE

Company, Type &

Policy No.

Owner

Beneficiary

Face

Amount ($)

WIFE

HUSBAND

American Income Life Insurance Company

Emilia Studzinski

Cash surrender value as of June 2020 is 5,420.85; DoS valued estimated

Oscar Studzinski

65,000

$4,000.00

18. Totals: Cash Surrender Value Of Insurance Policies

$4,000.00

$0.00

PART 4(e): BUSINESS INTERESTS

Name of Firm

or Company

Interests

WIFE

HUSBAND

19. Totals: Value Of Business Interests

$0.00

$0.00

PART 4(f): MONEY OWED TO YOU

Details

WIFE

HUSBAND

20. Totals: Money Owed To You

$0.00

$0.00

PART 4(g): OTHER PROPERTY

Category

Details

WIFE

HUSBAND

21. Totals: Value Of Other Property

$0.00

$0.00

22. VALUE OF PROPERTY OWNED ON THE VALUATION DATE, (TOTAL 1)

(Add: items [15] to [21])

$323,546.47

$975,526.21

(3)

Table 2: Value Of Debts and Liabilities on Valuation Date

PART 5: DEBTS AND OTHER LIABILITIES

Category

Details

WIFE

HUSBAND

Credit Card

American Express, as of March 24, 2018 (no further disclosure provided)

$673.86

Line of Credit

Scotiabank, acquired May 2007 – joint with Lilia Studzinski

$0.00

Contingent Tax Payable

Emilia’s Pension (20%) of $99,507.90

$19,901.58

Contingent Tax Payable

Dariusz’ WSIB Pension (20%) of $18,441.79

$3,688.39

23. Totals: Debts And Other Liabilities, (TOTAL 2)

$19,901.58

$4,362.25

Table 3: Net value on date of marriage of property (other than a matrimonial home) after

deducting debts or other liabilities on date of marriage (other than those relating directly

to the purchase or significant improvement of a matrimonial home)

PART 6: PROPERTY, DEBTS AND OTHER LIABILITIES ON DATE OF MARRIAGE

Category and Details

WIFE

HUSBAND

Land (exclude matrimonial home owned on the date of marriage, unless sold before date of separation). 75 Dundas Street West, Mississauga

$300,000.00

General household items and vehicles

Bank accounts and savings

Life and disability insurance

Business interests

Money owed to you

Other property

3(a) TOTAL OF PROPERTY ITEMS

$0.00

$300,000.00

Debts and other liabilities (Specify) 75 Dundas Street West, Mississauga – Studzinski Mortgage

$206,250.00

3(b) TOTAL OF DEBTS ITEMS

$0.00

$206,250.00

24. NET VALUE OF PROPERTY OWNED ON DATE OF MARRIAGE, (NET TOTAL 3)

$0.00

$93,750.00

Table 4: PART 7: VALUE OF PROPERTY EXCLUDED UNDER SUBS. 4(2) OF “FAMILY LAW ACT”

Item

WIFE

HUSBAND

Gift or inheritance from third person

Income from property expressly excluded by donor/testator

Damages and settlements for personal injuries, etc.

Life insurance proceeds

Traced property

Excluded property by spousal agreement

Other Excluded Property

26. TOTALS: VALUE OF EXCLUDED PROPERTY, (TOTAL 4)

$0.00

$0.00

TOTAL 2: Debts and Other Liabilities (item 23)

$19,901.58

$4,362.25

TOTAL 3: Value of Property Owned on the Date of Marriage (item 24)

$0.00

$93,750.00

TOTAL 4: Value of Excluded Property (item 26)

$0.00

$0.00

TOTAL 5: (TOTAL 2 + TOTAL 3 + TOTAL 4)

$19,901.58

$98,112.25

WIFE

HUSBAND

TOTAL 1: Value of Property Owned on Valuation Date (item 22)

$323,546.47

$975,526.21

TOTAL 5: (from above)

$19,901.58

$98,112.25

TOTAL 6: NET FAMILY PROPERTY (Subtract: TOTAL 1 minus TOTAL 5)

$303,644.89

$877,413.96

(4)

EQUALIZATION PAYMENTS

Wife Pays Husband

Husband Pays Wife

$0.00

$286,884.54

Signature

Date of signature

REVISED SCHEDULE "D"

Matrimonial Home

Emilia (25%)

Dariusz (25%)

Lilia (50%)

Received $836,460.60 on sale:

$209,115.15

$209,115.15

$418,230.30

Discharge first mortgage $326.55

-$81.64

-$81.64

-$163.27

Property Taxes $3,412.19

-$853.05

-$853.05

-$1,706.09

Real Estate Commission $13,933.90

-$3,483.47

-$3,483.47

-$6,966.96

James Deep Legal Fees $2,230.11

-$557.53

-$557.53

-$1,115.05

Small Claim Legal Fees

-$155.37

-$155.37

-$310.76

Small Claims Settlement

-$1,750.00

-$1,750.00

-$3,500.00

James Deep Legal Fees $621.50

-$155.37

-$155.37

-$310.76

Subtotal:

$202,078.72

$202,078.72

$404,157.41

Less pymt to Century 21:

-$3,635.77

-$3,635.77

-$7,271.56

Less Advances:

-$75,000.00

-$25,000.00

-$25,000.00

Initial Distribtuion of Proceeds:

$123,442.95

$173,442.95

$371,885.85

Post-Separation Adjustments:

Retroactive Child Support

$11,118.00

-$11,118.00

Prospective Child Support

$18,966.00

-$18,966.00

Prospective RESP contributions

$2,990.32

-$2,990.32

Retroactive s.7 expenses

$8,370.27

-$8,370.27

Lump Sum Spousal Support

$65,000.00

-$65,000.00

Equalization Payment

$286,884.54

-$286,884.54

Disposal Bins

$373.24

-$373.24

Security Costs

$745.80

-$745.80

Costs Order

$600.00

-$600.00

Decreased Sale Price

$12,963.50

-$12,963.50

New Furnace

$1,299.50

-$1,299.50

Subtotal of Adjustments:

$409,311.17

-$395,048.17

-$14,263.00

Division of Proceeds:

Emilia

her initial proceeds:

$123,442.95

Dariusz's share net of advance:

$173,442.95

in partial satisfaction of total owed

Owed by Lilia:

$14,263.00

in full satisfaction of total owed

$311,148.90

Lilia

her initial proceeds:

$371,885.85

Owed to Emilia:

-$14,263.00

$357,622.85

*Shortfall: Remaining Amt owing by Dariusz to Emilia:

$221,605.22

see para. 186(w)

(adjustments owed to E less what has been received from D and L)

of Reasons

COURT FILE NO.: FS-19-0217-00

DATE: 2020 05 22

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

EMILIA STANISLAWA STUDZINSKI

Applicant

• and -

DARIUSZ MAREK STUDZINSKI and LILA STUDZINSKI

Respondents

REVISED REASONS FOR JUDGMENT

Fowler Byrne J.

Released: May 22, 2020