Court File and Parties

Court File No.: FC1172/21 Date: January 23, 2024

Ontario Superior Court of Justice

Family Court

Between: Ewelina Biber, Applicant Leanna J.T. Simpson and Rebecca Coyne, for the Applicant

- and -

Seweryn Dominik Biber, Respondent Selin Hankali, for the Respondent

Heard: January 18 and 19, 2024

Before: SAH J.

Reasons for Decision

Overview

1When this matter was called to trial, child support, spousal support, and equalization of net family property were at issue.

2At various points after the commencement of trial, the parties resolved child support and spousal support. They also resolved various other elements of their claim for equalization of net family property.

3The only issue for the court to determine is the treatment of a date of marriage deduction claimed by the respondent in the amount of $65,000, and whether a $6,000 settlement received by the applicant should be included on her side of the ledger.

4The applicant’s net family property statement indicates the respondent owes her $41,711.99.

5The respondent’s net family property statement indicates he owes the applicant $6,211.99.

Brief Background

6The parties separated in 2021 after 14.5 years of marriage. They met in Poland.

7Though the respondent and his parents had immigrated to Canada earlier, the parties resided in Poland together for a brief period.

8They have two children. In 2006, the applicant immigrated to Canada. The parties began residing together in Canada.

9At first, the parties resided with the respondent’s parents at Unit 52, 9 Ailsa Place, London, Ontario (“Ailsa property”).

10When the respondent’s parents separated, the respondent’s father vacated the Ailsa property, and the parties continued living with the respondent’s mother until she moved out.

11The Ailsa property was eventually sold, and the parties purchased what they both describe to be the matrimonial home located at 1018 Shelborne Place, London, Ontario (“Shelborne property”).

12The claimed date of marriage asset is the Ailsa property.

13The parties agree that the date of separation is July 12, 2021. They married on December 2, 2006.

Analysis

14Under s.5(1) of the Family Law Act, R.S.O., c. F.3 (“FLA”), the spouse whose net family property is the lesser of the two net family properties in entitled to one half the difference between them.

15It is the onus of each party to prove their date of marriage deduction: s.5(3) of the FLA.

Date of Marriage Assets Claimed by Respondent

16The chronology of events as it relates to the Ailsa property is not in dispute.

17The property was purchased on November 10, 2003. The respondent’s parents are listed on title and they took out a mortgage of $114,390.00.

18The respondent and his parents lived in the Ailsa property.

19After the parties married, and after the applicant immigrated from Poland, they lived at the Ailsa property with the respondent’s parents.

20After the parties began residing at the Ailsa property, the respondent’s parents separated.

21The respondent’s father moved out, and the parties and the respondent’s mother continued to reside there.

22In or around December 16, 2008, two years after the date of marriage, the respondent’s parents transferred title in the Ailsa property into the name of the respondent and his mother. At that time, a charge was put on the property by First National Finance GP Corporation in the amount of $151,079.85.

23In or around December 17, 2015, the respondent’s mother and the respondent transferred title in the Ailsa property into the names of the parties. The transfer document reflects that consideration paid was $67,450.

24The parties sold the Ailsa property in or around August 2016. They both received net proceeds of sale in the amount of $34,245.47. These funds went towards the downpayment on the matrimonial home, the Shelborne property.

25The respondent claims that the Ailsa property was always intended to be for him. He claims his parents went on title so that he would have “a clear record” when buying his own home. He claims to have contributed money for the purchase of the Ailsa property. He further testified that he paid the mortgage and property tax.

26The respondent did not provide any documentary evidence or proof of these claims.

27Further, the respondent did not plead a trust claim. The record reveals that the respondent’s Answer states:

The Respondent's parents gave the parties a property located at 9 Ailsa Place and the sale of that property provided the down payment for the matrimonial home.

28His amended Answer states:

The Respondent's parents gave the parties a property located at 9 Ailsa Place and the sale of that property provided the down payment for the matrimonial home. The Respondent and his mother Jadwiga Biber jointly owned property located at 9 Ailsa Place, unit 52. On December 17, 2015, Respondent’s mother, Jadwiga Biber gifted her ½ share of the property to the Applicant and Respondent by way of a transfer where Jadwiga Biber was removed from title and the Applicant was added on title in her place as Joint Tenants with the Respondent.

29The respondent did not produce a trust agreement between himself and his parents.

30Neither parent testified at trial to support his position.

31He did not produce their acknowledgement of him being a beneficial owner in the Ailsa property as of the date of marriage, as alleged.

32He led no evidence as to the value of the Ailsa property at the date of marriage.

33The evidence before me supports a finding that the respondent’s parents were on title, and therefore owners of the Ailsa property, as of the date of marriage.

34The respondent has failed to discharge his onus of claiming the pre-marital property deduction by failing to offer any reliable evidence.

35His failure to substantiate his claim results in my rejection of his claim and acceptance of the applicant’s proposal.

Settlement money received by Applicant

36In October 2019, the applicant started an aesthetic business with Ms. Acosta, called Younique Centre of Beauty (the “business”). The company was only up and running for a few months prior to the commencement of the COVID-19 pandemic.

37Given the nature of the business, the services were considered non-essential and the business ceased operation.

38At some point, the applicant and Ms. Acosta fell into a dispute. The dispute resulted in the applicant receiving settlement funds in the amount of $6,125.41 (“settlement funds).

39At trial, the applicant tendered as evidence a letter from the lawyer she retained to assist her with the dispute she had with her business partner. The letter is dated May 19, 2021 and indicates that it enclosed a trust cheque representing the net settlement funds left of the settlement funds provided by the solicitor for Ms. Acosta.

40The applicant testified that she deposited the settlement funds in a chequing account in her sole name, then withdrew the money and paid her parents back.

41She testified that her parents lent her approximately $15,000 as she started her business. She claims to have repaid her parents more of what was owed in October 2021.

42The respondent disputes that the applicant's parents ever lent her money. He claims the applicant is lying about having to repay her parents.

43He further testified that he was unaware whether the applicant deposited the settlement funds during the marriage or after their separation. He did not offer any evidence to support his position that the applicant still had those funds on the date of separation.

44Though the applicant did not produce any bank records in support of her position, there is no dispute that the applicant’s business started during the marriage, ended during the marriage, and the funds were received two months before the parties separated.

45I believe that she borrowed money from her parents as there is no dispute that the applicant had no assets and very little else when she came to Canada. On balance, I prefer the applicant’s evidence to the respondent’s.

46The settlement funds were received approximately two months before the parties separated. The applicant’s explanation of what she did with the funds rings more truthful than the respondent’s blanket denial.

47Therefore, the settlement funds will not be included on the applicant’s side of the ledger as a date of marriage asset.

Conclusion and Orders

48Mid-trial, the court requested that counsel submit a jointly prepared Form 13C: Comparison of Net Family Property Statement, which is attached as ‘Schedule A’ to this decision.

49For reasons set out above, I accept the applicant’s position and order that the respondent pay the applicant an equalization payment of $41,711.99.

50In the applicant’s draft order, she seeks that the respondent’s equalization payment be paid from his one-half share of the matrimonial home net proceeds currently held in trust. She requests that any remaining balance be paid directly her. She did not provide details of how much was being held in trust.

51In her closing submissions, the applicant did not address this request or explain why it is appropriate for the court to make this order.

52In the respondent’s draft order, he seeks that net proceeds of the matrimonial home be divided equally, with his equalization payment to be made separately. The draft order sets out that $50,000 is being held in trust.

53In his closing submissions, the respondent did not address this request or explain why it is appropriate for the court to make this order.

54In Price J.’s order of June 27, 2022, he ordered the net sale proceeds of the sale of the matrimonial home less $50,000.00 be divided equally. I am satisfied that approximately $50,000 remains in trust.

55Given the amount held in trust and the amount payable to the applicant, it is appropriate to order, from the net proceeds of sale, that the applicant shall receive $25,000, representing her half share, and $25,000 from the respondent’s half share for partial payment of the equalization payment he owes her.

56If there are any remaining net proceeds of sale (for example, as the result of accrued interest), those shall be divided equally as between the parties.

57The balance of the respondent’s equalization payment owed to the applicant, in the sum of $16,711.99, shall be paid to the applicant within 30 days.

Costs

58The parties have been able to settle nearly every issue in dispute but for the issues subject to this decision.

59I am confident that they will be able to settle the issue of costs.

60If they are unable to do so, and if the applicant seeks costs, she may submit written submissions, no more than three pages, typed in double space, excluding offers to settle and a cost outline, on or before February 2, 2024.

61The respondent shall have up to February 9, 2024 to file his response to the applicant’s costs submissions. His submissions shall not exceed two pages, typed in double space, excluding offers to settle and a cost outline.

62There shall be no right of reply unless requested by the court.

63If no submissions are received in accordance with the timelines set out above, it will be presumed that costs have been settled.