ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Laurel Anne Werbeski
Applicant
– and –
Brian Werbeski
Respondent
Raymond Sowley, for the Applicant
Maybelline Massey, for the Respondent
HEARD: May 27 & July 15, 20251
REASONS FOR JUDGMENT
THE HONOURABLE JUSTICE a.d. hilliard
Overview
1By the time this Application came to trial, the only remaining issues were property division and child and spousal support. The parties agreed that there was only one remaining dependent child of the marriage. There was no dispute about decision-making or parenting time in relation to the dependent child.
Background
2The parties were married on March 10, 2001. They separated permanently on August 28, 2022.
3There are two children of the marriage: Justin (22) and Hailey (17). Hailey is the only dependent child for support purposes.
4The matrimonial home was destroyed by fire in May 2019. The parties received funds from their insurance company to rebuild the house and to replace all of the personal property that was damaged or destroyed in the fire.
5The matrimonial home was rebuilt and the insurance company made some direct payments to the contractors. The rest of the proceeds were paid to the parties. During the rebuild, the parties resided with the children in a rental property. The insurance company reimbursed the parties for the rent payments.
6The parties received the total sum of $260,974 directly from the insurance company. That money was deposited into an account solely in Mr. Werbeski’s name.
7Prior to the house fire, Mr. Werbeski was employed full time. After the fire, Mr. Werbeski stopped working and was not employed again until after the parties separated.
8Just before the COVID-19 pandemic, the parties started their own business operating an escape room. With the shut-down and physical distancing that resulted from the pandemic, the business closed and was never fully re-opened. The business applied for and was granted pandemic loan funding from the government in the amount of $60,000. That loan has never been repaid. The escape room was closed permanently in July 2022.
9In October 2022, Mr. Werbeski was arrested and charged with assault and uttering threats against Ms. Werbeski and Hailey. After his arrest, Mr. Werbeski was removed from the matrimonial home and taken into custody. He was released on an order that required him to reside with his surety in Sudbury. Mr. Werbeski ultimately entered guilty pleas and was sentenced to a period of probation for three (3) years.
10Mr. Werbeski has never paid any child support. He does not dispute that child support is currently owing by him for Hailey.
11Mr. Werbeski did not work after separation, nor did he attempt to seek employment until 2025. He is now earning $31.50 per hour working approximately 30 hours per week.
12Ms. Werbeski remains residing in the matrimonial home with Justin and Hailey. She is also now gainfully employed. Ms. Werbeski’s annual income in 2024 was $40,485 and her projected income in 2025 at the time of trial was $54,236.
Analysis
Unequal Division
13Equalization of net family property (NFP) is governed by section 5 of the Family Law Act (FLA):
5(1) When a divorce is granted or a marriage is declared a nullity, or when the spouses are separated and there is no reasonable prospect that they will resume cohabitation, the spouse whose net family property is the lesser of the two net family properties is entitled to one-half the difference between them.
5(6) The court may award a spouse an amount that is more or less than half the difference between the net family properties if the court is of the opinion that equalizing the net family properties would be unconscionable, having regard to,
(a) a spouse’s failure to disclose to the other spouse debts or other liabilities existing at the date of the marriage;
(b) the fact that debts or other liabilities claimed in reduction of a spouses’ net family property were incurred recklessly or in bad faith;
(c) the part of the spouse’s net family property that consists of gifts made by the other spouse;
(d) a spouse’s intentional or reckless depletion of his or her net family property;
(e) the fact that the amount a spouse would otherwise receive under section (1), (2), or (3) is disproportionately large in relation to a period of cohabitation that is less