Kosewski v. Kosewski, 2025 ONSC 3398

COURT FILE NO.: FS-18-00000045
DATE: 2025-06-06
ONTARIO
SUPERIOR COURT OF JUSTICE

B E T W E E N:
Wioleta Kosewski
Self-Represented
Applicant

• and -

Mariusz Kosewski
Self-Represented
Respondent

HEARD: September 11, 12, 13, 17, 18, 19, 20, 23, 24, 27, 2024

Table of Contents

I. Overview
II. Issues
III. Witnesses
IV. Credibility
V. The Separation Agreement Should Be Set Aside as It Pertains to Child Support
VI. What Was Mr. Kosewski’s Annual Income?
A. Expert Qualification
B. Income of Mr. Kosewski
C. Conclusions of Mr. Davies
D. Position of Ms. Kosewski
E. Position of Mr. Kosewski
F. Child Support Amounts
VII. Section 7 Expenses
VIII. Medical and Dental Expenses
IX. The Separation Agreement Is Not Set Aside as It Pertains to Spousal Support
A. Positions of the Parties
B. Section 56(4) Generally
C. Section 56(4)(a): Sufficiency of Disclosure
D. Section 56(4)(b): Understanding Nature or Consequences of Domestic Contract
E. Section 56(4)(c): The Applicant’s Allegation of Duress Is Not Made Out
F. The Respondent’s Defence of Laches Does Not Succeed
X. Mr. Kosewski’s Claim for Equitable Relief Is Not Made Out
XI. Fees for Jointly Retained Valuator
XII. Outstanding Costs Orders
XIII. Costs
XIV. Orders Made
XV. Conclusion

I. Overview

[1] The applicant, Wioleta Kosewski (born 1985), and the respondent, Mariusz Kosewski (born 1981), married on November 23, 2003 and separated on April 6, 2012. There is one child of the marriage, N., born in 2010.

[2] In May 2012, the parties signed a separation agreement. N. would be primarily resident with her mother and have significant parenting time with her father. The parties agreed to be joint decision makers. The separation agreement required Mr. Kosewski to pay monthly child support of $669, based on an annual income of approximately $73,000 per year, which was his 2011 income. Section 7 expenses would be split equally between the parties. Health and dental expenses which were not covered by Mr. Kosewski’s benefits would be split proportionate to income. In the agreement, Ms. Kosewski released any claim to spousal support.

[3] In the years after the separation agreement was signed, there were two developments:

a. Mr. Kosewski did not comply with the agreement in various ways, including not paying the required amount of child support. Sometimes, Mr. Kosewski paid more than the required amount, but the unevenness of the payments (both timing and amount) led to a stressful lack of predictability for Ms. Kosewski, and, by extension, N.; and

b. Ms. Kosewski began to suspect that Mr. Kosewski was earning more than $73,000 per year.

[4] Ms. Kosewski started this application in 2018, seeking to set aside (or in the alternative, vary) the separation agreement.

[5] While both parties were represented by counsel at points during this litigation, they were both self-represented at trial.

II. Issues

[6] The application originally raised the topic of parenting time. This issue was settled in 2023.

[7] The following issues were argued at trial:

a. Should the separation agreement be set aside or varied as it pertains to child support?
b. If yes, what was Mr. Kosewski’s income from 2012 to present?
c. What is appropriate child support (arrears and ongoing)?
d. What are the section 7 expenses (arrears and ongoing)?
e. Should the separation agreement be set aside as it pertains to spousal support?
f. If yes, what is appropriate spousal support (amount and duration)?
g. Does the respondent have a claim for damages arising from the applicant’s alleged misuse of her in-laws' line of credit and credit card?

III. Witnesses

[8] The court heard from the following witnesses at trial:

• Wioleta Kosewski (Applicant; N’s mother)
• Witkor Lapko (Applicant’s current partner)
• Sergey Kutsuk (Respondent’s former accountant)
• Rick Davies (Jointly retained expert income valuator)
• Mariusz Kosewski (Respondent; N’s father)
• Ryan Desa (Respondent’s friend and business associate)
• Theresa Kosewska (Respondent’s mother)

IV. Credibility

[9] Ms. Kosewski gave her evidence in a straightforward, factual manner. She conceded when she did not know or did not recall something. The court found her to be credible.

[10] Mr. Lapko is Ms. Kosewski’s current partner. They had a child together in 2015. Mr. Lapko helped Ms. Kosewski in gathering the information for this litigation. His evidence demonstrated strong negative opinions about Mr. Kosewski. The court would have been wary about placing much weight on Mr. Lapko’s evidence given his partisan views. However, the practical reality was that Mr. Lapko had little direct information about this litigation.

[11] Mr. Kutsuk is the accountant who prepared Mr. Kosewski’s corporate and personal tax returns. He was precise and factual in his evidence. He clarified that he was not Mr. Kosewski’s bookkeeper, but rather he relied on QuickBooks spreadsheets prepared by the respondent.

[12] Mr. Kosewski presented an interesting contrast for the court as between his pre-trial and trial conduct. As detailed in these reasons, his behaviour throughout this litigation was outrageous. This litigation angered him. He clearly thought that if he lobbed enough insults at Ms. Kosewski and refused to disclose income information, the litigation would be dropped. His pre-trial conduct lacked all credibility. In his trial evidence, he admitted to breaching two court orders, swearing false affidavits, and providing inaccurate financial statements. In 2022, when Mr. Kosewski was unhappy with the jointly retained expert’s conclusions and invoices, he threatened to report the expert to the police and the expert’s professional regulator (he later recanted these allegations). However, when the trial finally started (after a failed attempt by Mr. Kosewski to adjourn), the gravity of the situation seemed to (finally) dawn on Mr. Kosewski. His trial evidence was not coloured by personal insults. He was not boastful. He admitted fault. He appeared candid about his business and personal history.

[13] Mr. Desa is a regulated legal professional (he did not tell the court if he is a lawyer or paralegal) and described himself as the owner and director of a personal injury law firm. Despite this, he had little regard for disclosure requests, and felt his court appearance to be an inconvenience. The court referred to his evidence on narrow and limited topics (the business ventures with the respondent).

[14] Mrs. Theresa Kosewska is the respondent’s mother. She kindly appeared while travelling and testified with a Polish interpreter. Her evidence was clear and candid.

V. The Separation Agreement Should Be Set Aside as It Pertains to Child Support

[15] Ms. Kosewski argues that the separation agreement should be set aside as it pertains to child support. In the alternative, she argues that there has been a material change which warrants revisiting the terms of child support.

[16] Mr. Kosewski did not overtly consent to this relief, but did so impliedly; specifically, he did not argue that the child support provisions in the separation agreement should continue in force; rather, he argued about what increased income should be attributed to him for the new child support amounts.

[17] Section 56(1.1) of the Family Law Act permits the court to disregard any provision of a domestic contract which is unreasonable having regard to child support guidelines.

[18] Generally, courts are reluctant to alter private agreements between parties. The onus is on the party seeking to change the agreement. The court will consider whether the provision in question meets the needs of the child and will consider the best interests of the child.

[19] There was no evidence, from either party, about how the child support clause (clause 11 in the signed agreement) was arrived at. The first draft of the agreement contained a lower child support amount based on a lower income. Mr. Kosewski testified that his annual income in the first draft ($32,700) was not correct, and he believed that it was an error by his lawyer using an old precedent agreement.

[20] The second, signed draft of the agreement contained Mr. Kosewski’s accurate annual income for 2011: $73,997.30, as well as the monthly child support amount of $669. There was no evidence on this point at trial, but the court notes that the $669 figure is a few dollars lower than table support using the 2011 Federal Child Support Guidelines.

[21] Given that the separation agreement was signed in May 2012, it was a reasonable choice to set child support based on Mr. Kosewski’s 2011 income (even if this amount was, in retrospect, slightly inaccurate).

[22] What is unreasonable about the agreement is the absence of any requirement for Mr. Kosewski to disclose his updated income on an annual basis and an absence of any requirement to adjust child support based on that updated income. The absence of such provisions effectively disregards the child support guidelines. Given that Mr. Kosewski’s income increased in the following years, N. was deprived of child support.

[23] During his in-chief evidence, Mr. Kosewski stated that he would have provided his income tax returns to Ms. Kosewski if she had asked for them. The court rejects this evidence. Given the context and history of this litigation (in which Mr. Kosewski spent six years actively avoiding giving his income information), this statement is untrue. At best, it represents wishful, retrospective thinking on Mr. Kosewski’s part.

[24] Pursuant to section 56(1.1) of the Family Law Act, the court therefore disregards the child support clause of the separation agreement and relies on sections 33(11) and 34(1) of the Family Law Act to set the appropriate child support for N. for 2012 to trial.

VI. What Was Mr. Kosewski’s Annual Income?

[25] To set child support for N., the court must determine Mr. Kosewski’s income.

A. Expert Qualification

[26] The parties jointly retained RSM Canada Consulting LP to draft a report on Mr. Kosewski’s income. RSM was represented by Mr. Rick Davies, who testified at trial.

[27] Mr. Davies has an undergraduate degree in accounting and obtained his chartered accountant designation. He is also a chartered business valuator, certified forensic financial examiner and certified fraud examiner. He has been in private practice for 14 years, joining RSM three years prior to trial.

[28] During the trial, the court made an oral ruling, qualifying Mr. Davies as an expert witness on the topic of income valuation in matrimonial disputes.

[29] The role of an expert witness is to assist the court. Mr. Davies fulfilled that role admirably: his evidence was fair, objective, straightforward and helpful. Mr. Davies’ efforts were especially appreciated by the court given that he testified despite not having completed his report. The incomplete report was due to incomplete documentation from the respondent. Despite this, Mr. Davies reviewed the file carefully, took into account additional documents given by the respondent just days prior to trial and updated his calculations for trial.

B. Income of Mr. Kosewski

[30] Mr. Kosewski testified that he started working in a plastic factory, alongside his father, when he was in high school. He focused on his education to get a better job doing something he liked.

[31] Mr. Kosewski became a software developer and IT architect. At the end of 2011, he was a salaried employee at Shaw Media, making $73,997 per year.

[32] In 2012, Mr. Kosewski incorporated AllStar Software Inc. He moved to another salaried position (at a company called Rugged.com which was then purchased by Siemens) and worked there in early 2012 for 1.5 months, at an annual salary of $92,000 per year. His T4 from Siemens was not issued until after the separation.

[33] While at Siemens, AllStar Software obtained a contract with Toronto Police Service. The contract was obtained through a recruiter called ARC (Advanced Recruitment Consultants). In cross-examination, Mr. Kosewski testified that he did not provide the contracts at the time the separation agreement was signed because Ms. Kosewski did not ask. At the time of separation, Mr. Kosewski was working 35 hours per week at $70 per hour. Assuming a 48-week work-year, that would annualize to $117,600. From that amount, Mr. Kosewski was responsible for remitting HST, which would have reduced his income to $102,390. None of this was disclosed to Ms. Kosewski at the time of separation.

[34] Mr. Kosewski continued to do contract work for Toronto Police Services and began an association with a software company called Edsembli.

[35] Other business ventures: there was evidence of other business ventures by Mr. Kosewski:

a. He is one of three owners in Blaze Systems, an app launched in 2018. The project was wound down at a loss as it was eclipsed by other rideshare apps.

b. Task Rex: Task Rex was another application conceived by Mr. Desa. Mr. Kosewski helped Mr. Desa launch the app. It was abandoned when Task Rabbit (a competitor company) launched in Canada. Mr. Kosewski had no ownership interest in this project.

c. LawFile/MyFile: this is a business which belongs to Mr. Desa. Mr. Kosewski testified that he did not invest, nor did he receive compensation. Mr. Desa was working with an app development team and Mr. Kosewski assisted from time to time.

[36] Build with Care: this was a corporation owned by Mr. Desa. The evidence was that Mr. Kosewski never worked as a laborer for this company; rather, he spent some time observing on job sites in order to assist with the Task Rex app design. He received some compensation for this. However, Mr. Desa’s company issued a T4 slip to Mr. Kosewski stating that he was a general labourer earning a weekly salary. Mr. Kosewski and Mr. Desa conceded that this information was entirely incorrect.

[37] Other litigation: Mr. Kosewski disclosed that he was the respondent in litigation started by another common law partner, Ms. Kisten. Mr. Kosewski was successful in that litigation.

[38] Criminal charges: Mr. Kosewski testified that Ms. Kisten made a criminal complaint, and he was later convicted of criminal charges (there was no evidence as to the specific charges). At the time of this trial, Ms. Kosewski said he was in the midst of an appeal. There were no documents from the criminal case put into evidence.

[39] Mr. Kosewski testified that, because of the criminal conviction, his contract with Edsembli was terminated and his last day of work was June 10, 2023. The contract could not continue because of the criminal conviction (the required criminal record check was not passed and could not be passed on future procurement processes).

[40] Another company called Sparkrock later acquired Edsembli. Ms. Kosewski believes that Mr. Kosewski still works at Sparkrock, but other than Mr. Kosewski having an email address, there is no evidence that he works at Sparkrock. Mr. Kosewski testified that he no longer works for those companies, although they may have kept his email address to capture any correspondence coming to the corporation from external parties.

[41] At trial, Mr. Kosewski provided evidence of job applications, but testified that he had not obtained employment and was earning $50,000 per year as a general labourer or painter.

[42] Real estate: Mr. Kosewski also detailed his real estate transactions post separation, involving the following properties:

a. 637 Lakeshore Boulevard West, Toronto
b. 87 Durham Road, Stoney Creek
c. 24 Stirton Street, Hamilton
d. 179 Orchard Drive, Ancaster

[43] At the time of trial, the first three properties had been sold and Mr. Kosewski and his family were living in the fourth.

[44] Mr. Kosewski did not declare any capital gains associated with the sales of these properties.

C. Conclusions of Mr. Davies

[45] Mr. Davies collected information in the form of documents and information from both parties. He reviewed his draft findings with the parties and fielded questions and concerns from them. Some materials were not provided; for instance, at the time of trial, Mr. Kosewski had not prepared his 2023 tax returns or financial statements. There was also other missing information, such as underlying support for personal expenses. Had Mr. Davies completed his formal report, he would have estimated reasonable expenses, taking into account the fact that Mr. Kosewski was operating a personal service business.

[46] Mr. Davies considered Mr. Kosewski’s personal and corporate income, including expenses claimed and general ledgers (although some general ledgers were missing). He considered the real estate transactions, any rental income from the real estate and the capital gains implications.

[47] Mr. Davies also applied an income tax gross up to account for instances where Mr. Kosewski received a tax benefit such as unreported income.

[48] Mr. Davies’ opinion was that Mr. Kosewski’s income was in the range of $200,000 to $250,000 per year between 2012 and 2020. This includes a gross up for tax and includes the HST component for unreported income. Mr. Davies advised that this represented an average income which he had smoothed out to arrive at the same income each year (rather than have peaks and valleys in each individual year). The parties did not ask him to provide calculations for each individual year.

[49] For the years 2021 to 2023, given there were no capital gains, Mr. Davies concluded that Mr. Kosewski’s income was in the range of $170,000 to $220,000 per year.

D. Position of Ms. Kosewski

[50] While Ms. Kosewski did not dispute the calculations of Mr. Davies, she expressed her ongoing belief that Mr. Kosewski was hiding income and/or corporations and/or further disclosure.

[51] Given the number of times Mr. Kosewski did not abide by the original separation agreement, the years Ms. Kosewski spent fighting this litigation, the insults and disdain she endured from Mr. Kosewski during the litigation [3] and the number of times that Mr. Kosewski failed to produce sufficient disclosure, the court does not doubt the depth of Ms. Kosewski’s belief.

[52] However, belief is not sufficient to succeed at trial. Evidence is required. There is no evidence of income (personal or corporate) beyond what was considered by Mr. Davies.

[53] Ms. Kosewski’s belief is fueled, in part, by the online photos posted by Mr. Kosewski, which showed a lavish lifestyle, replete with glamorous locations and expensive cars. Indeed, Mr. Kosewski used to leave his luxury vehicle a short distance from Ms. Kosewski’s house and use an Uber to pick up N. for parenting time so that Ms. Kosewski did not see the car he owned.

[54] Photos can be staged. Vehicles can be financed. In this case, that is not a sufficient evidentiary basis on which to find additional assets and income.

E. Position of Mr. Kosewski

[55] Mr. Kosewski does not dispute the calculations of Mr. Davies.

[56] He submitted that the court should take the mid-point of any range but did not provide any rationale for doing so.

[57] Mr. Kosewski also argued that any calculation must remove HST, but he provided no rationale, no calculations to the court, and no evidence that he had remitted the HST to the Canada Revenue Agency.

[58] If there are any imperfections in the calculations of the jointly retained expert, they are solely due to Mr. Kosewski’s failure to provide prompt and fulsome disclosure. The court therefore uses the high end of the expert ranges to arrive at income to calculate child support, specifically:

a. 2012 to 2020: $250,000 per year
b. 2021 to 2023: $220,000 per year

F. Child Support Amounts

[59] Based on these annual incomes and the child support guidelines, the monthly child support amounts are:

a. May 2012 to November 2017: $2003
b. December 2017 [4] to 2020: $2019
c. 2021 to 2023: $1803

[60] During trial, Mr. Kosewski testified that he did not disagree with Ms. Kosewski’s calculation of child support arrears owing (which was approximately $6,000 based on $669 per month, which was later increased to $1068 per month).

[61] If this has not occurred already, Mr. Kosewski shall produce all information regarding his 2024 income, including all personal and corporate income, expenses and capital gains information.

[62] Mr. Kosewski shall produce comprehensive evidence of his income (including corporate income) for every year that N. is a child of the marriage, by July 1, to permit child support adjustments.

[63] If the parties do not agree what the child support arrears are by July 4, 2025, they shall book a 9 a.m. appearance before me to determine this issue.

VII. Section 7 Expenses

[64] In addition to child support, section 11 of the separation agreement also deals with section 7 expenses and provides that the parties will split these equally.

[65] The parties agreed that Mr. Kosewski paid 50% of the section expenses in 2012 and 2013 but did not pay any section 7 expenses after that.

[66] Ms. Kosewski’s evidence was that, as a result, N. had access to fewer activities and opportunities because Ms. Kosewski could not afford them.

[67] Mr. Kosewski did not disagree but testified that he provided items such as clothes and vacations which he paid for alone. There was no evidence of particulars.

[68] If the parties do not agree on the section 7 arrears by July 4, 2025, they shall book a 9 a.m. appearance before me through the Brampton Trial Coordinator to determine this issue.

VIII. Medical and Dental Expenses

[69] Medical and dental expenses are treated separately from section 7 expenses. Clause 12 of the separation agreements provides that Mr. Kosewski will maintain a benefits plan through group insurance at his employment, and the parties will split any medical and dental benefits not covered by insurance in proportion to their incomes.

[70] Mr. Kosewski rarely, if ever, had a benefits plan as he worked as an independent contractor.

[71] Over the years, N. had dental expenses such as braces which Mr. Kosewski did not contribute to. N. also had expenses such as prescription glasses and dermatology appointments not covered by OHIP.

[72] During the trial, Ms. Kosewski’s income tax returns were not put into evidence (the first page of the 2013 to 2018 returns were put in as exhibits, but this was to establish her marital status and did not set out her income). The parties shall determine Ms. Kosewski’s line 150 income for 2012 to present (excluding the income of her new partner) to determine the amounts owing by Mr. Kosewski for the medical and dental expenses.

[73] If the parties do not agree on medical and dental arrears by July 4, 2025, they shall book a 9 a.m. appearance before me through the Brampton Trial Coordinator.

IX. The Separation Agreement Is Not Set Aside as It Pertains to Spousal Support

[74] The separation agreement waives spousal support. Ms. Kosewski asks that this be set aside pursuant to section 56(4) of the Family Law Act.

[75] Ms. Kosewski was born and raised in Poland. She came to Canada in 2002 at the age of seventeen to visit relatives. She met Mr. Kosewski that summer and they dated. She returned to Poland to finish school, then returned to Canada, sponsored by Mr. Kosewski. The parties married November 23, 2003.

[76] Neither party described an especially happy relationship. As detailed above, Mr. Kosewski pursued his education and career. Ms. Kosewski completed a high school equivalency in Canada and worked in a Polish grocery. She also attended Humber College in a bookkeeping program but left after a semester or two. Ms. Kosewski also worked as a cleaner. She later obtained employment as a bookkeeper at a transportation business run by Polish-speaking owners.

[77] The parties separated on April 6, 2012. Ms. Kosewski moved into her own apartment with N. and Mr. Kosewski remained in the matrimonial home.

[78] Mr. Kosewski retained legal counsel (a lawyer who was fluent in Polish) and provided a draft separation agreement. Ms. Kosewski stated that she was pushing for the agreement as she had financial pressures (her rent and N.’s daycare).

[79] Ms. Kosewski did not retain counsel. She agreed that she did not ask Mr. Kosewski’s lawyer any questions, in English or Polish. She signed the agreement, and her signature was witnessed by her brother, Mr. Kuk.

A. Positions of the Parties

[80] Ms. Kosewski argues that the separation agreement should be set aside as it pertains to spousal support. She argues all three sections of s.56(4) of the Family Law Act:

a. Mr. Kosewski failed to disclose significant assets, existing when the domestic contract was made;
b. Ms. Kosewski did not understand the nature or consequences of the domestic contract; or
c. Otherwise in accordance with the law of contract: in this case, Ms. Kosewski argues that she signed the separation agreement under duress.

[81] Mr. Kosewski argues the spousal support provisions should not be set aside and if not, the claim should be dismissed on account of the defence of laches.

B. Section 56(4) Generally

[82] Section 56(4) analysis involves a two-step process. A finding that a party has breached one (or more) of the subsections in s. 56(4) does not automatically render the contract a nullity. The court must then determine if it is appropriate, in the circumstances, to set the contract aside (Le Van v. LeVan, 2008 ONCA 388, para 33).

[83] The applicant has the onus of establishing that one of the criteria exist and, if so, convincing the court to exercise its discretion to set aside the agreement.

C. Section 56(4)(a): Sufficiency of Disclosure

[84] Mr. Kosewski did not provide full disclosure at the time of the separation agreement. He led Ms. Kosewski to believe that his income was $73,000 when it was, in fact, $102,000.

[85] I find that this was a significant non-disclosure in terms of percentage of income.

[86] However, the court declines to set aside the agreement on that basis. There was no trial evidence that Ms. Kosewski released spousal support because of the amount of support at play. Therefore, there is no connection between the lack of disclosure and the contractual decision.

D. Section 56(4)(b): Understanding Nature or Consequences of Domestic Contract

[87] Ms. Kosewski argued, in her closing, that her understanding of English was poor and she did not understand the separation agreement. She did not testify about this issue in her evidence. Both parties were self-represented at trial and the court made every effort not to take an overly formalistic approach to evidentiary issues. However, the court notes that Ms. Kosewski’s evidence in chief was thorough and organized. No time limits were imposed on any witness.

[88] In contrast to her closing argument, the court notes that all of Ms. Kosewski’s text communications with Mr. Kosewski were in English. Ms. Kosewski completed high school in Poland and completed her high school equivalency in Ontario. She completed a semester or two of college. She worked as a bookkeeper. She knew Mr. Kosewski had hired a lawyer. She elected not to do so. She knew Mr. Kosewski’s lawyer was fluent in Polish. She did not ask the lawyer (who drafted the agreement) any questions, in either language.

[89] There is no evidence that Ms. Kosewski did not possess agency at the time of signing the agreement. The court does not find that there was a lack of understanding sufficient to set aside the separation agreement.

E. Section 56(4)(c): The Applicant’s Allegation of Duress Is Not Made Out

[90] Ms. Kosewski argues that the separation agreement should be set aside as it was made under duress.

[91] I find that the applicant did not lead sufficient evidence to make out this claim.

[92] In her own evidence, Ms. Kosewski conceded that she was pushing for the agreement because she had moved into her own apartment and had the financial pressures of her rent and N.’s daycare.

[93] Duress is not all pressure, economic or otherwise. It must be a pressure that the law does not regard as legitimate and must be applied to such a degree as to amount a coercion of the will or it must place the party in a position where she has no realistic alternative to submit to it (Stott v. Merit Investment Corp., para 48; see also A.(S.) v. A.(A.), 2017 ONCA 243, para 27).

[94] There is a fundamental difference between a person feeling trapped and pressured by circumstance into signing an agreement and a situation in which that person was subjected to undue pressure or duress by another. Duress requires extreme circumstances. Antagonism and stress do not meet that threshold (Taplin v. Walsh, 2016 ONSC 2998, paras 66–68).

[95] Further, even if the court were inclined to find duress, the claim could not succeed because of delay. When a party claiming duress waits a significant amount of time between taking steps to set aside a contract for duress, this tends to suggest that there was either no duress or that, if there was duress, the contract has been affirmed and is no longer voidable (Francis v. Baker, aff’d).

F. The Respondent’s Defence of Laches Does Not Succeed

[96] Having determined that the applicant’s claim to set aside the spousal support provisions of the separation agreement does not succeed, the defence of laches is moot. Even if the court set aside the spousal support provisions, the court would have rejected the defence of laches.

[97] Laches is an equitable defence which provides that a claimant may be barred from bringing an equitable claim because of a delay in asserting her rights and the defendant has changed his position because of the delay.

[98] Mr. Kosewski claims that he was prejudiced by this delay in two respects:

a. The application started February 26, 2018 deprived him of the ability to marshal evidence from years past; and
b. He relied on the release of spousal support provisions when he made later decisions impacting his finances. As an example, he said in closing (but not in evidence) that he would not have increased debt to acquire real property.

[99] The court rejects both arguments.

[100] First, Mr. Kosewski led no evidence of records that were no longer available as of February 2018. The court accepts that it is difficult to obtain records after substantial time passes, but the question is not what Mr. Kosewski wanted in 2024, but what efforts he made to obtain records in 2018 when he received the application. Further, in at least one instance, Mr. Kosewski failed to lead available evidence. In closing, Mr. Kosewski argued that he was prejudiced because he no longer had the emails from the lawyer who drafted the separation agreement and had to rely on the emails produced by the applicant, which may be incomplete. However, Mr. Kosewski led no evidence of any attempt to contact that legal counsel and/or obtain his file and/or lead evidence from that lawyer.

[101] Second, it would be a perverse and unfair result to find that the respondent relied on the separation agreement when the respondent did not, in fact, abide by the agreement himself. Some examples:

a. Mr. Kosewski did not maintain medical, dental, drug, and long-term disability coverage when it was available under a group insurance policy through his employment, as per clause 12 of the agreement;
b. Mr. Kosewski did not share N.’s medical and dental non-insured expenses in proportion to the parties’ incomes, as per clause 12 of the agreement;
c. Mr. Kosewski failed to consistently maintain a life insurance policy in the amount of $100,000 for the benefit of the applicant and N., something he is required to do as long as he is obligated to pay child support, as per clause 13 of the agreement;
d. The agreement required Mr. Kosewski to pay $669 per month in child support. From time to time, he would pay more, but there were many months in which Mr. Kosewski paid less (and occasionally nothing at all). In his cross-examination, Mr. Kosewski admitted that, at one point, he simply decided to reduce his monthly payments to $500 in breach of the separation agreement. Although he informed Ms. Kosewski of his intention, there was no agreement to the reduction.

X. Mr. Kosewski’s Claim for Equitable Relief Is Not Made Out

[102] Mr. Kosewski made a claim for $28,322 for equitable compensation, claiming that he paid this amount for Ms. Kosewski’s fraudulent use of Theresa’s credit card and line of credit. Mr. Kosewski said that he paid this amount back to his parents as part of the separation agreement in which Ms. Kosewski gave up spousal support.

[103] Ms. Kosewski denied fraudulent use of her mother-in-law’s credit card and/or line of credit.

[104] This claim evolved over the course of the trial in three main respects:

a. Mr. Kosewski advised that he was only pursuing this claim if the court granted spousal support to Ms. Kosewski;
b. In cross-examination, Mr. Kosewski admitted that the debt of $23,000 was paid from the proceeds of the sale of the matrimonial home, so conceded that Ms. Kosewski had already paid half that amount and confirmed that he only seeks 50% of that amount; and
c. His draft order sought only $21,000, which was lower than his pleading. Given the concession in point (b), this claim would be reduced to $11,000.

[105] This claim is moot given that the spousal support sections of the separation agreement remain in place. However, even if the spousal support release had been set aside, the court would have rejected this claim.

[106] There is no doubt that Mr. Kosewski’s parents helped the parties early in their marriage. The parties lived with Mr. Kosewski’s parents before purchasing their own home. Theresa Kosewska purchased a bedroom set for the couple using her low interest line of credit on the understanding that the couple would pay it off.

[107] Mr. Kosewski alleges that Ms. Kosewski fraudulently used the line of credit and a credit card, running up these credit facilities and negatively impacting her in-laws' credit rating.

[108] Ms. Kosewski’s evidence was that the parties used these credit facilities with the knowledge of Mr. Kosewski’s parents, testifying that any credit card was handed to “us” [the parties] by the respondent’s parents.

[109] The respondent called his mother to speak about her bank statements. She proved that Ms. Kosewski was making payments, but then conceded in cross-examination that Mr. Kosewski knew that she and her husband (the respondent’s parents) gave the parties a credit card to use during the marriage.

[110] Even if the court accepted that Ms. Kosewski wrongfully used these credit facilities (which it does not), the claim would fail because Mr. Kosewski did not put into evidence any amounts other than $5,000 for the bedroom set which was used to the benefit of both parties.

XI. Fees for Jointly Retained Valuator

[111] The parties agreed to retain RSM to value Mr. Kosewski’s income. It was agreed that Mr. Kosewski would pay the fees, subject to the court modifying that arrangement at trial.

[112] I find that Mr. Kosewski should be responsible for all of the fees charged by RSM for the following reasons:

a. The need for the valuation in the first instance was due entirely to Mr. Kosewski’s failure to provide disclosure pursuant to the separation agreement and in this litigation.
b. The parties recall that the original cost estimate for the valuation report was $6,000. The final cost of the report ballooned to tens of thousands of dollars. The increased cost was due to Mr. Kosewski’s delay in providing relevant documents (and, in some cases, never providing certain information). What should have been a straightforward task became a forensic sleuthing exercise. Mr. Kosewski is solely responsible for the substantial increase in valuation fees.

XII. Outstanding Costs Orders

[113] Mr. Kosewski agreed that he has not yet paid the following costs awards:

a. $500: on November 25, 2022, Justice Agarwal awarded $26,500 in costs. Mr. Kosewski paid this costs award over many months, the last payment being made on May 8, 2023. At trial, he agreed that there was $500 outstanding.
b. $2,500: on September 22, 2023, Justice Doi awarded Ms. Kosewski $2,500 in costs, payable within 30 days.

[114] Mr. Kosewski is ordered to pay the $500 arising from the November 25, 2022 order plus 4% post judgment annual interest (see Courts of Justice Act, R.S.O. 1990, c. C.43), which runs from December 25, 2022 until the date the outstanding amount is paid.

[115] Mr. Kosewski is ordered to pay the $2,500 arising from the May 22, 2023 order plus 6% post judgment annual interest, which runs from October 22, 2023 until the date the outstanding amount is paid.

[116] If there is any dispute about the calculations, the parties may come back before me.

XIII. Costs

[117] Costs were not addressed during oral closing arguments.

[118] The applicant, Ms. Kosewski, is the more successful party on this motion and is presumptively entitled to costs.

[119] The parties are encouraged to agree on costs. If they will not, written costs submissions will be served, filed, and uploaded to Case Centre on the following schedule:

a. Applicant, by July 7, 2025 at 4 p.m.;
b. Respondent, by July 28, 2025 at 4 p.m.

[120] There is no reply.

[121] These deadlines cannot be varied unless by court order. If submissions are not received by these deadlines, the court will proceed on the basis that costs are not being sought.

[122] Costs submissions will be double spaced, in 12-point font, and five pages, maximum (exclusive of authorities and bills of costs).

[123] The submissions and bills of costs will identify any step in the proceeding (including trial) which requires costs to be assessed. The submissions and bills of costs will exclude any step for which costs have already been awarded.

[124] Costs submissions should also include submissions as to whether full recovery costs should be awarded for bad faith behaviour.

XIV. Orders Made

[125] In addition to the orders made throughout these trial reasons, I also make the following orders:

a) A support deduction order will issue and be applicable to arrears as well as ongoing child support obligations.
b) The orders of Bloom, J. and McGee, J. (requiring funds from real estate transactions to be held in trust and to encumber the 197 Orchard Property) remain in place until the court orders otherwise or the parties consent to the release of funds to Ms. Kosewski.

XV. Conclusion

[126] Thank you to both parties for their significant efforts. Although each party was self-represented, their cases were presented clearly.

L.B. Stewart
Released: June 6, 2025

Endnotes

[1] Family Law Act, R.S.O. 1990, c. F.3.
[2] Federal Child Support Guidelines, SOR/97-175.
[3] Both parties put numerous text messages into evidence during trial. The text chains are replete with bickering and insults by both parties. Mr. Kosewski, in particular, texted several demeaning and graphic insults when faced with the 2018 application. Two stood out to the court. First, Mr. Kosewski repeatedly insisted upon referring to Ms. Kosewski’s new partner as a pedophile. The second insult requires context: the trial evidence was that Ms. Kosewski’s brother was an acknowledged violent alcoholic who was deported from Canada. He lived with Ms. Kosewski for a time after the separation in 2012. In 2019, Mr. Kosewski texted: “I should’ve let your brother beat you to death instead of helping you”.
[4] The Federal Child Support Guidelines increased on November 30, 2017.
[5] Le Van v. LeVan, 2008 ONCA 388, at para. 33, leave to appeal refused [2008] S.C.C.A. No. 331.
[6] Stott v. Merit Investment Corp., at para. 48. See also A.(S.) v. A.(A.), 2017 ONCA 243, at para. 27.
[7] Taplin v. Walsh, 2016 ONSC 2998, at paras. 66–68.
[8] Francis v. Baker, aff’d in, and.
[9] Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 127, 129; 4% is the post judgment interest rate for the fourth quarter of 2022.
[10] Courts of Justice Act, ss. 127, 129; 6% is the post judgment interest rate for the third quarter of 2023.