Binczak V Binczak (1992)

44 R.F.L. (3d) 122

Binczak v. Binczak STANISLAW BINCZAK v. DIAN BEVERLEY HEATHER BINCZAK Ontario Court of Justice (General Division) E. Macdonald J. Heard: October 20 and November 23, 1992 Judgment: December 22, 1992 Docket: Doc. ND-169694/89 Counsel: Sandra Demson, for Petitioner David Sanders, for Respondent Cases considered: Hoyer v. Hoyer (1981), 24 R.F.L. (2d) 444, 32 B.C.L.R. 41 (S.C.) [reversed (1982), 30 R.F.L. (2d) 261, 41 B.C.L.R. 27 (C.A.)] -- considered Jazenko v. Jazenko (1985), 46 R.F.L. (2d) 351 (Ont. Dist. Ct.) -- referred to Statutes considered: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.). Petition for divorce and corollary relief under the Divorce Act, and for division of matrimonial property under the Family Law Act (Ont.). E. Macdonald J.: 1 The husband and the wife were married on November 18, 1972. They separated October 25, 1988, at which time the wife moved out of the matrimonial home and went to live in Montreal, where she now resides. 2 The husband commenced his petition for divorce in November 1989. Since separation the three children have always lived with him in the matrimonial home located at 3430 Kingston Road. It is jointly owned by the parties. 3 The husband is employed on a full-time basis with CN Rail. His base salary is approximately $38,000 and with overtime he earns in the range of $45,000. He takes every available opportunity to work overtime because the extra income is essential for meeting the expensesof the family. 4 A recent letter of opinion suggests that the market value of the matrimonial home today is $127,000. It is mortgaged for $43,600. 5 There is no issue as to custody or access although it is to be observed that since the mother has moved to Montreal, she has had minimal contact with the children.

6 The father looks after all expenses related to the children and prepared a child care expenses budget wherein he estimated that his expenses for the children were $1,750 a month. He apportioned 40% of his accommodation costs to his children. This is, in my view, a most reasonable budget for expenses for the three children, who are now ages 19, 17, and 15. All three children are expected to attend university or other postsecondary education. 7 Mrs. Binczak, from 1990 to 1991, was receiving welfare benefits in Montreal. She now works at Canada Post on weekends in Montreal delivering circulars or flyers. At the time that she gave her evidence in October 1992, she had another job in a factory, but was advised that she would be laid off. Counsel advised me at the time of legal argument that, in fact, she had been laid off from this position. Her financial statements filed in these proceedings demonstrate that she lives below the poverty line, and except for her interest in the home and her entitlement to an equalization payment, she is destitute. 8 The mother has had the misfortune of becoming addicted to alcohol. Her addiction was very apparent prior to the time of the separation. The mother lost her licence on one occasion by reason of driving with alcohol blood levels in excess of amounts permitted. With the assistance and support of her husband she sought and obtained treatment for her alcohol addiction, both in Toronto and, for an extended period of time, in Buffalo, New York. Notwithstanding her efforts to rehabilitate herself, she continues to have this problem. She has made no direct contribution to the children's expenses since she has left for Montreal, and the husband now alleges that title to the matrimonial home should be vested in him, with the portion of the equity of the matrimonial home which would normally be the mother's being effectively transferred to the father by way of a lump sum for child support. 9 The husband's position is that the mother has no current ability to pay periodic support for the children and, accordingly, the court should award a lump sum in the manner suggested above. Since separation the only contribution that the mother has been able to make to the children's support is an indirect one in that she has not pursued an order for sale of the matrimonial home, thereby providing accommodation for the children and her husband. Notably, she did not at trial ask for a sale of the property. 10 It was argued that I should take into account that the wife is diminishing her own one-half interest by reason of liens which are registered against her share of the property. There are legal aid liens totalling approximately $7,500, and, in addition, there is a judgment against the mother by the Canadian Imperial Bank of Commerce as a result of the non-payment of a Visa account. The judgment is for $1,403.04 and has interest accruing on the same at the rate of 21.25%. In addition, she is repaying a U.I.C. overpayment of $1,638. It is unclear whether this debt is secured against her interest in the home. 11 Mathematical calculations were presented to me by counsel, who are in agreement that the rough calculations of the net equity in the matrimonial home to the credit of either party at the present time is slightly less than $38,000. The wife's share of this equity is reduced, due to her debts, to approximately $24,275. 12 Both parties had pensions, and it is agreed that the husband's pension is, for the purposes of calculating an equalization payment, valued at $21,680. The wife's pension is valued at $2,700, and on account of the equalization of the pension, the husband would owe to the wife the sum of $9,490, this payment notionally equalizing their respective interests in their pensions. 13 Ms Demson, on behalf of Mr. Binczak, suggests that the wife's net equity at $24,275, when combined with the payment that she would receive to equalize the

pensions of $9,490, gives a net result of $33,765 (roughly), and this is the amount that should be the lump sum for child support, paid by vesting the home in the name of the husband. 14 I heard evidence from Mr. Dibben, an actuary called as an expert for the husband, to indicate what the present value of child support payments at the rate of $300 per month per child would be from the date of separation to the time that the children are normally no longer eligible for contributions for child support. These figures demonstrate that if the child support were paid by the mother at $900 per month in total, the mother's equity in the matrimonial home, combined with the payment required to equalize the pensions, is less than what Mr. Dibben suggests is the present value of the child support in his calculations. The difficulty is that the mother does not have ability to pay at the levels used by Mr. Dibben as the basis for his projections. 15 There is no issue but that these children are in need; but for very unfortunate reasons, this mother does not have ability to pay periodic support. Her health tragedy is the tragedy of her family and the court then must consider whether or not, given the acknowledgment that there is no present ability to pay child support (which is not disputed), is it axiomatic that there should be an award of a lump sum on these facts and circumstances? 16 An order for a lump sum of child support would effectively deprive the mother of her entire asset base and would leave her even more destitute than she now is. 17 Several authorities were cited to me on the issue of a lump sum of child support and the first principle is that lump sums for child support are extremely rare. See, for example, Jazenko v. Jazenko, 46 R.F.L. (2d) 351. In many of the cases, lump sums of child support are considered because of a history of non-payment or non-compliance of existing court ordered child support. This is not the situation in this case. 18 The wife, by not seeking an order for sale of the matrimonial home, has signalled to the court that she is prepared to forgo access to her capital for an indefinite period of time to ensure that the children have a place to reside with their father. In my view, this concession on her part is the very most that she can do having regard to her unfortunate condition. The facts of this case are somewhat similar to Hoyer v. Hoyer, 24 R.F.L. (2d) 444. At trial the matrimonial home in that case was vested in the husband by way of a lump sum maintenance for the child of the marriage. On appeal on this point, the appeal was allowed, it being the objective of the court to protect the wife's interest in the property. The mother was unemployed and also had a history of alcoholism, which was not under control. 19 Mrs. Binczak did not, in her pleadings, claim support for herself. At the opening of this trial, she sought to amend her pleadings to claim for support for herself and to claim for occupation rent in respect of the matrimonial home. Having considered the authorities respecting the amendment of pleadings and the history of the litigation, I declined the motion. The wife had not, up to the opening of trial, sought support although there had been extensive opportunities for her to do so prior to that time. 20 The current need for support of the children is clear and undisputed. Current ability to pay is conceded as being non-existent; it is not, in my view, appropriate to effect a transfer of the wife's property, which, in any event, would not provide the husband with any immediate relief in terms of meeting the children's expenses. 21 The husband shall have long term exclusive possession of the home until the youngest of the three children is no longer a child within the meaning of the Divorce Act or until the husband, if he chooses to, decides to sell the home earlier. Upon sale there

will be an equal division between the husband and wife of the net proceeds of sale, except that from the wife's share will be paid any executions, with accrued interest, now registered against the wife's share. The wife shall not be at liberty to further encumber her share of the property and she shall not pledge her interest in the property as security for future debt obligation. The wife will also forgive the payment of $9,490, plus any interest thereon, being the amount now due to her for equalization of their pensions. This is the only mechanism that Mrs. Binczak has to make a current, albeit further indirect, contribution to the children's expenses. 22 Accordingly, there shall be divorce judgment with custody of the children to the husband, access to the children to be reasonable and in accordance with the discretion of the husband and the children. Subject to my comments above, the husband shall have long term exclusivepossession of the matrimonial home. 23

There shall be no costs.

Order accordingly.