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ONTARIO

SUPERIOR COURT OF JUSTICE


BETWEEN:
Mary Ann Borutski

and
Basil Joseph Borutski

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Applicant )
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Respondent
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Duncan A. R. Crosby, counsel for the


Applicant

HEARD: November 18th, 21st , 22nd, 23rd


and 25th, 2011

LEROY, J.
REASONS FOR JUDGMENT

[1]

The applicant, Mary Ann Borutski, (Mary Ann) seeks relief arising from the breakdown
of her marriage to Basil Joseph Borutski (Basil). All legal issues were resolved by
agreement save for the equalization of their net family property. The child care and child
support issues are settled. The parties agreed to exclude Mary Anns WSIB pension fund
and the hunt camp property registered to Basil from the equalization process. Mary Ann
retains the pension free of any claim by Basil. Basil retains the hunt camp lands and
premises free of any claim by Mary Ann. Although Basil advanced a claim for spousal
support through the trial he, correctly, withdrew during argument. The issue for trial
involved the applicants claim for an equalization of the net family property of the
parties.

2011 ONSC 7099 (CanLII)

CITATION: Borutski v. Borutski, 2011 ONSC 7099


COURT FILE NO.: 08/D1051 Pembroke
DATE: 2011/12/08

[2]

The equalization claim is complicated by Basils reliance on handwritten documents from


1994. He advances the position that these documents immunize him from the
equalization claim. The first document is titled marriage contract. It was handwritten
by and signed by Mary Ann on July 25, 1994. The second is a court order made by Mr.
Justice E. R. Millette on September 7th, 1994 pursuant to minutes of settlement printed by
Basil and signed by both.

[3]

Neither document withstands scrutiny. My analysis looks at:


i.
ii.

Interpretation of the marriage contract and the Minutes; and


The process that parties used to achieve the agreements alleged.

[4]

Beyond that issue, the equalization calculation is relatively straightforward. Although the
parties devoted significant testimony to the ownership and value of various chattels
retained by Basil after separation, the values are not significant. The only significant
asset of the parties is the matrimonial home and they agreed to its valuation date value.

[5]

From what the witnesses said at trial, this was a wretched marital relationship. I am
unable to discern whether the parties are victims of unfortunate circumstances, of their
own foibles, or a combination of both.

Background
[6]

As the documents were compiled in 1994 the circumstances of the parites at the time and
today pertain.

[7]

Mary Ann is 49 years of age. Basil is 54. They raised two children and the third, Sahra
is 16. Sahra resides with her mother. Candace, age 30 is a child of another union;
however, Basil engaged in a care giving role beginning when she was one or two years of
age. Amanda is 25 and independent. Basil called Candace and Amanda as witnesses in
his cause.

[8]

Mary Ann alleges a steady regimen of domestic violence. Basil denies and points to the
fact that he has never been convicted of such charges in relation to Mary Ann. Basils
lament is that he was falsely accused by Mary Ann on three occasions. He lived in
constant fear of false allegation. Curiously, Basil advances the same lament in respect to
charges arising in circumstances unrelated to Mary Ann.

[9]

The relationship began in 1982. Although both parties are native to this area, Basil was
working in Kitchener at the time, later training as a millwright. They lived there for eight
or ten years. Amanda was born in Kitchener on September 17, 1986.

[10]

Mary Ann alleged domestic assault in 1985. Basil incurred legal fees in the amount of
$20,000.00 successfully defending the charges. He suffered a serious work related injury
and was unable to work for some time. He states that he was forced to liquidate
ownership of another lot in Round Lake to pay the legal fees. Save for the first trial, the

2011 ONSC 7099 (CanLII)

Page: 2

Page: 3

[11]

Basil purchased 2177 Round Lake Road on July 11, 1989. They constructed a home on
the land by salvaging a log cabin from a nearby property and moved in 1989.

[12]

Events in their lives escalated in 1993.

[13]

They separated in December 1993 and Basil was charged with assaulting Mary Ann in
February 1994. Mary Ann brought an action against Basil seeking family law relief at
the time. Basil suffered significant personal injuries in a car accident in May 1994. The
parties reconciled in June 1994. They married on June 29, 1994. They conceived Sahra
in July 1994. Mary Ann signed the document titled Marriage Contract on July 25,
1994. Basil was acquitted of the assault charges on August 4, 1994. The consent order
was issued September 7, 1994. They separated in December 1994 for three or four years.

[14]

Basil received compensation arising from the injuries and residual disabilities resulting
from the MVA. The disability insurer advanced $60,000 to construct a shop on the home
lands so Basil could work at home at his own pace. The third party insurer advanced the
sum of $90,000.00 in damages in 1998 and 1999. He used that money to buy a Harley
Davidson motorcycle for $28,000 and a used Dodge truck for $60,000. Amanda received
$10,000 for loss of companionship under the FLA. He says that the balance of the
insurance proceeds was invested in the matrimonial home. As the result of the disability
from the accident, the mortgage payments on the home were paid by an insurance
company. Both parties were awarded retroactive WSIB and CPP benefits, the proceeds
of which went into living expenses or legal fees along the way.

[15]

The parties resumed cohabitation in 1999. Basil acquired title to a twenty acre parcel
(hunt camp) nearby the matrimonial home land on December 17, 1999 for $3,500.00.
They separated for the last time on August 27, 2008.

[16]

The parties settled the issues of custody and child support. Mary Ann has an order for
custody of the child, Sahra by order dated June 28, 2010. Basil pays guideline child
support to Mary Ann for Sahras support in the amount of $137.00 per month based on
total annual income of $15,854.00 per year. Basils income derives from WSIB and CPP
disability benefits and amounts to $16,568 per year. Mary Anns income is derived from
WSIB, CPP, child tax benefits and child support and amounts to $25,433 per year.

[17]

Both parties are disabled from gainful employment.

[18]

Mary Ann experienced carpal tunnel symptoms in both wrists arising from repetitive
employment tasks in Kitchener. Surgical intervention did not provide relief. She
contracted breast cancer in 2001, leading to immediate intervention that included a
mastectomy, radiation and chemotherapy. She is symptom free in respect to breast
cancer for 10 years. She reports that a tumour attached to her pituitary gland was
diagnosed in 2003 but that she remains asymptomatic. Cancer medication caused uterine
cancer symptoms in 2006 resolved by a full hysterectomy. She has fibromyalgia.

2011 ONSC 7099 (CanLII)

pattern that repeated itself over the years is that after reporting an assault (true or not)
they would patch things up and Mary Ann recanted, either before trial or at trial.

Page: 4

[19]

Basil suffered at least two major physical injuries that leave permanent residual
impairment. His right hand was detached and re-attached following a job-site injury in
Kitchener. The fine and gross motor skills in respect to the right hand are affected. He
states that he can print but not write. It was after that he returned to school to qualify as a
millwright. As noted, he was injured in an MVA in 1994, resulting in permanent residual
disability. His back is compromised. That said, he is very good with equipment and has,
over the years, purchased used, sometimes ancient chattels, for purposes of refurbishment
and resale.

[20]

The parties bring disparate narratives forward.

[21]

Basil vehemently denies having ever assaulted Mary Ann. He asserts that she is
vindictive and manipulates the justice system by making false charges. He believes she
suffers from mental health issues that disable her from effective parenting, from
responsible financial management and that distort her reality. He states that the
marriage contract and Minutes were Mary Anns initiative. He stated that he knew
nothing of the marriage contract until they attended court on September 7, 1994. He
recalls that Mary Ann dictated the Minutes and he transcribed with minimal input. The
Will was her idea.

[22]

Mary Ann states that Basil destroyed her spirit by relentless threats and abuse. She
explained the sequence after the December 1993 charges. She states that he stalked her,
constantly pestered her to recant, insisted that it did not happen, told her that no one
would believe her in court having regard to the acquittal in Kitchener, that he would take
the girls from her and she would never see them again. She says she believed he would
succeed and capitulated.

[23]

She states that the marriage and Sahras conception were Basils strategies to manipulate
the court. His mission was to marry and conceive another child thinking that no judge
would send a married expectant father to jail, particularly when the expectant wife was in
support. Mary Anns mantra throughout her testimony was that she did what she was
told because the underlying message was that no one would believe her and the threat
that if she disappointed he would take the children. Resistance was futile.

[24]

Mary Ann states that by the time she wrote the marriage contract, the Minutes and the
Will her spirit was inert to the extent that she complied with Basils bidding without
question. She recalls that Basil wrote the marriage contract and will out for her to copy,
which she did.

[25]

She recalls that the will document, written in 1995 giving custody of the children to
Basil, was imposed in the circumstance of the breast cancer and the real concern that her

2011 ONSC 7099 (CanLII)

Symptoms include chronic pain and fatigue. A stroke caused permanent left side hearing
impairment and loss of sensation. She takes prescribed medications that include
Demorol, Tylenol #3 and Lyrica. She confirmed that pain management clinic palliative
method involves daily pain medication as an essential component.

Page: 5

Credibility
[26]

In every family file each partys assumptions, conclusions and recollections are tainted
by the patina of their own virtue and the ugliness of the marriage breakdown. The parties
dedicated significant trial time to establishing that their version to be the right one. The
analysis that I applied to the validity of the impugned documents, for the most part,
eliminates the credibility or reliability of the parties from prominence in my decision.

[27]

Although Basil called Candace and Amanda, their testimony was unfavourable to his
cause. Until a witness credibility is made an issue by the opposing party, witnesses are
assumed to be trustworthy and of good character. Their credibility is untarnished. They
verified their mothers version of the dysfunction in the marriage and confirmed that
Basil was violent, easily agitated and tyrannical toward his family members. Amanda
confirmed that the equipment depicted in the photographs TR tab 8 belonged to the
family. Candace testified to having vivid memory of Basils violence toward Mary Ann
dating back to the early years in the vehicle that included hair pulling, slapping and an
attempt to push Mary Ann from the moving vehicle. She recalls that she was horrified, as
was Amanda who was a baby age 3 at the time. Candace confirmed the assault in 1993
and that she called 911. Amanda confirmed the observation that her mother was bloodied
and dirty on her arrival at the home in August 2008 when the parties finally separated.
Basil states those injuries were self-inflicted.

[28]

The inconsistencies in Basils evidence were ubiquitous to the extent that it seemed to be
conjured for best effect at any given point in the trial and deserves comment. Where there
is a material difference in recollection, Mary Anns recall is preferred. I do not intend to
highlight every incongruity in Basils evidence. That would be fruitless and I would
overlook others. A few will suffice to make the point:
i.

Respondent witness, Amanda recalls the mooning incident, the repeated threats to
burn the home should Mary Ann secure exclusive possession, Basils marijuana
cultivation, possession and dealing and ownership of the yard chattels. Basil
denies all of those incidents. In terms of evidentiary effect, respondents
testimony tend to cancel one another out on those issues.

ii.

Respondent witness, Candace confirms the assaults in the Bronco and December
1993. Basil asserts victimization and wrongful allegation. In terms of evidentiary
effect, respondents testimony tends to cancel one another out on those issues.

iii.

Mary Ann asserts that the three daughters were in her care throughout the period
of separation between 1994 and 1998 and that she drove Amanda to the school
bus pick up every day. Basil at one point in testimony stated that Amanda
remained in his care through that period. Later, on two occasions, when trying to

2011 ONSC 7099 (CanLII)

family would intervene after her decease, knowing how incompetent, volatile and abusive
they thought Basil to be.

explain the grounds for reconciliation in 1999 he said that he missed the children
and wanted them back in the home. I have no doubt that Amanda lived with
Mary Ann throughout. Basil needed evidence of Amanda in the home to
complete the FLA derivative damages claim awarded to Amandas account in the
amount of $10,000 so the school bus records needed to confirm her home address
as his;
iv.

Basil consistently took the position that the $20,000 referred to in paragraph 7 of
the Minutes pertained to accumulated legal fees he incurred arising from the
domestic assault trial in Kitchener and possibly for money he was out of pocket to
replace furniture Mary Ann removed from the house coincident with the 1993
separation. When he realized that paragraph 7 is not an indemnification clause
and that paragraph does not achieve that purpose, he backpedalled and took the
position that he had no idea what the paragraph or the $20,000 pertained to.

v.

At trial Basil, repeatedly declared that he was unaware of the marriage contract
until September 7, 1994 and that he was an innocent bystander to the Minutes
when they were compiled. In his Answer he emphasizes that the marriage
contract and Minutes were the price of reconciliation paragraphs 8, 9. His
evidence was that the lawyer misunderstood.

vi.

Basil dismissed the significance of his oath in relation to the sworn financial
statement dated December 10, 2010. He denied a review of the financial
statement at the time of deposition and that it constituted an accurate financial
statement at the time.

Immunity from Equalization


[29]

Basil relies on two documents as follows:


Marriage contract
I Mary Ann Borutski being of sound mind and body give my husband Basil J. Borutski
full control of any assets that courts may say I have the right to. I also give full custody of
both girls Candace Anna Rose Mask and Amanda Dawn Borutski to Basil J. Borutski. I
am doing this because of a mental disorder which in the past on many occasions because
of another personality that comes out in me. Ive tried to take the children from him not
allowing any access whatsoever. I have made false statements about him to convince
authorities he should not have custody. I have destroyed the children's lives unknowingly.
This has gone on for 12 years. I am now facing reality. I am seeing many counsellors,
doctors and using self-help techniques to fight my dissociation problem but until I have
completed this healing process and while I am in a state of mind where I recognize what
I've done I want to make sure my husband has the right to take care of the children and
all financial decisions. I believe he's the only person that I can trust to do what is right
and fair for everyone concerned. I am doing this on my own free will and I am not being

2011 ONSC 7099 (CanLII)

Page: 6

Page: 7

The minutes of settlement relied on by Basil were incorporated into a consent order
endorsed by Mr. Justice Millette on September 7, 1994. The order states that This court
orders that this matter is settled in accordance with the Minutes of Settlement
attached.
The Minutes are as follows:
1.

2.

3.
4.
5.

6.

7.

8.
9.

10.

11.

We agree that Basil J. Borutski will have full custody of Amanda Dawn Borutski
and that Candace Anna Rose Mask because of age can decide for herself which
parent she wants to have custody.
As far as division of assets we both agree that because this was a common-law
relationship there was no constructive trust and that all assets left belong to Basil
J. Borutski fully and entirely and that Mary Ann Mask has no claim to any assets
in the name of Basil J. Borutski.
The 1987 Ford Bronco which was transferred to Mary Ann Mask will be returned
to Basil J. Borutski at her expense, if any.
As far as visitation rights Mary Ann Mask gives the right to Basil J. Borutski to
deal fairly so that the children have as much time with their mother as possible.
It is agreed that there will be no support payments unless communication breaks
down or either party's financial situation changes. And then only through mutual
agreement or court order.
It is mutually agreed that all debts incurred by either party because of court
proceedings or problems arising from disagreements will be the responsibility of
the party who creates such debts.
It is understood that Mary Ann Mask has incurred debts in the approximate
amount of $20,000 and that is agreed mutually that Mary Ann Mask will be
responsible for those debts solely.
And any other fair settlement that the courts may feel would apply after reading
these minutes and that the parties mutually agree on.
And that a copy of marriage contract made up and signed by Mary Ann Burutski
and Basil J. Burutski be attached to these minutes to explain how we came to this
agreement.
It is also mutually agreed that the home on lot 15, concession 13, Hagarty
Township is owned solely by Basil J. Borutski as per deed and that he obtained the
home from funds previous to the relationship with Mary Ann Mask and that she
has no claim on it other than if she from this day forward can show documentation
that she is now contributing towards it.
It is agreed that all interim agreements court orders are now null and void that
were procured by either party for this document.

2011 ONSC 7099 (CanLII)

coerced or threatened. This is my choice. We have already lost one home and heavily
indebted our present home because of my irrational choices. This is my way of not
allowing myself and my destructive ways from destroying what's left. Signed: Mary Ann
Borutski Witnessed by a Justice of the Peace. (Emphasis added by writer)

Page: 8
Minutes signed by the parties the document referred to by the parties as a marriage
contract was attached to the order. (emphasis and strikeout added by writer)

[30]

The contents of the marriage contract document do not address the rights or obligations
of the parties in respect to the ownership in or division of property. On its face the
document declares that Mary Ann suffered from mental disorder dissociation and
multiple personalities. In a lucid moment, pending recovery, she entrusted management
and care of her children and assets to the one person she trusted, Basil. The implication
is that if Basil chose to act in the capacity of his wifes attorney, he would be obliged to
protect her interests in a fashion comparable to a fiduciary. The parties had recently
reconciled and married. The document indicates, on its face, that Mary Ann trusted Basil
to maximize their collective best interest when she could not.

[31]

The Minutes of Settlement (Minutes) were intended to further the purport or purpose of
the marriage contract. Paragraph 9 explicitly incorporates the marriage contract into
the Minutes as a foundational document. The parties were recently married and were
cohabiting as spouses at the time. The tenor of the marriage contract requires that the
Minutes accommodate the objective of protecting the net family properties of both
parties. Paragraph 10 protects the Borutski family assets from third party creditors of
Mary Ann. In all the circumstances, it is my view that the substance of paragraph 10
does not foreclose Mary Anns beneficial interest in the presumptive legal right to
equalization of the net family property of the parties contemplated by the Family Law
Act.

Rick/Brandsema Review
[32]

If that analysis is not dispositive, the process and outcome analysis leads to the same
disposition. For the reasons that follow the Minutes cannot stand.

[33]

The Minutes are subject to review. The consent order made by Mr. Justice Millette did
not involve a determination of factual and legal issues on merit. Minutes were filed and
the endorsement followed. It is impossible to know what information was imparted to
Justice Millette at the time. Transcripts are unavailable.

[34]

A core principal in the practice of family law is that the best way to ensure the finality of
any negotiated agreement is to ensure both its procedural and substantive integrity in
accordance with the scheme of the FLA. Rick v. Brandsema, [2009] S.C.J. No. 10.

[35]

The review involves a two stage process circumstances and substance at the time of
formation of the agreement and if that appears to be satisfactory then the review moves to
current circumstances.

2011 ONSC 7099 (CanLII)

Interpretation of the marriage contract and minutes of settlement

Page: 9

[36]

The process employed by the parties leading to the Minutes was flawed. For different
reasons, both parties agree that the Minutes were not the result of a negotiation. In all the
circumstances, I do not need to select one version over the other. Mary Ann recalls that
Basil imposed all terms in the context that if she did not sign she would be ousted from
the home and isolated from the children. Basil recalls that while Mary Ann was enjoying
a temporary moment of lucidity emerging after periods of psychosis involving delusion,
dissociation and different personality she determined to right all past wrongs and she
dictated the terms of the Minutes.

[37]

If Mary Anns recall is accurate, the power imbalance vitiated the bargaining process
such that the Minutes should not be read as an expression of the parties notion of
equitable sharing in their circumstances and is accorded little weight.

[38]

If Basils recall is accurate, Mary Ann lacked requisite capacity. The fact of the
acknowledgements contained in the marriage contract is decisive. The excerpts of the
letters attributed to Mary Ann in that time period, that Basil insisted on reading into the
trial record, reveal Mary Ann to be in the throes of profound depression.

[39]

In either state of affairs the bargaining process was compromised to such an extent that
the Minutes should not be read as an expression of the parties notion of equitable sharing
in their circumstances. Mary Ann was extremely vulnerable whether as the result of
abuse or organic mental illness, much more so than the degree contemplated by the
Supreme Court of Canada in Miglin.

[40]

Neither adverted to the value of financial disclosure. Basil argues that it is of no


consequence. I disagree. The process of compiling and reading financial statements
allows the parties opportunity to assess. The party needs to know what asset base might
potentially grow, in order to determine what he or she is being asked to give up in the
agreement.

[41]

Mary Ann did not have the benefit of independent legal advice.

[42]

Fundamental to a choice to opt out of the legislative scheme is a clear understanding of


what one's rights and obligations might be if there was no contract. Coupled with
financial disclosure is the notion of understanding legal rights and obligations under the
legislative scheme. The second carries with it the concept of independent legal advice.
The party must know what assets and liabilities exist at the date of the contract, and must
understand the general legislative scheme in order to know what he or she is giving up in
the proposed agreement. Dubin v. Dubin (2002), 34 R.F.L. (5th) 227.

2011 ONSC 7099 (CanLII)

Circumstances of execution (signing)

Page: 10

[43]

The terms of the Minutes fail to address the requisite factors and objectives of the FLA.
The entitlement of spouses to equalization under the FLA is a substantive right
independent from right of ownership. For a contract to oust the legislated legal remedy it
must deal explicitly or by necessary implication with a matter akin to the equalization
provisions of the FLA. An agreement as to ownership of property without more is
insufficient. For the marriage contract to prevail over the equalization provisions of the
Act, the contract must contain provisions which address in their intent if not in their
explicit language the relative economic position of the parties upon dissolution of the
marriage through the distribution of assets between them on the basis of ownership or
otherwise. Bosch v. Bosch (1991), 36 R.F.L. (3d) 302 (ONCA).

[44]

Basil misapprehended reasonable expectations. He acknowledged that his duty under the
marriage contract was to be fair in his dealings. His stated understanding of fairness
was egocentric. He blames Mary Ann for reporting domestic assaults. Fairness, from
Basils perspective, dictates that Mary Ann exhausted the presumptive benefits of the
equal partnership inherent in a marital relationship to the extent that she forfeited her
presumptive marital FLA property entitlement.

[45]

Basils perspective does not stand scrutiny. If he felt that way, why did he marry Mary
Ann in June 1994? The very significance of marriage is the public display of the marital
commitment. The Minutes fail to come close to substantial compliance with the purpose,
spirit and objectives of the FLA.

[46]

If the Minutes amount to a release of an equalization interest, they fail because the parties
neglected the constellation of considerations that drive valid family law agreements.

Current Circumstances
[47]

If the flaws in the negotiation process do not denude the Minutes of efficacy, then the
partys circumstances today and over the last ten years represent a significant departure
from reasonable outcomes anticipated by the parties collectively.

[48]

One premise for the FLA property division scheme is that contributions to the costs of the
household in one area by one party frees up funds from the other to dedicate to household
improvement. Basil stood in the position of fiduciary under the marriage contract
obliged to further their collective best interests. Basil did not pay child support at any
time during the three or four year separation beginning at the end of 1994. The evidence
is that the Borutskis receive comparable income after netting out the child tax credit.
They contributed all of their respective incomes the household for the ten years before
August 2008. They improved the matrimonial home over that time.

[49]

A result that denies one party any benefit to equalization after ten years of equal
contribution to the family finances is an unacceptable outcome in these circumstances.
The overall objectives of the FLA include certainty, finality and autonomy. When the

2011 ONSC 7099 (CanLII)

Substance of the Minutes

Page: 11

Excluded Property
[50]

Benefits that are invested in the matrimonial home are not protected. Basil argues that
the mortgage was paid by the matrimonial home mortgage disability insurer and that the
garage was paid for by another disability insurer. The FLA protects property other than
the matrimonial home into which personal injury damages can be traced. Accordingly
the truck and motor cycle are excluded from the equalization accounting.

Conclusion
[51]

The Minutes cannot stand. Mary Ann is entitled to the equalization remedies contained
in the FLA.

Net Family Property Values and Calculation


[52]

NFP

Applicant

Respondent

Assets
Land
$193,500
Home contents
$2,000
4,000
Personal Tools
1,000
Chip truck
15,000
Harley Davidson and truck
19,000
By date of separation, the Harley Davidson declined in value to $8161 and the truck was
in disrepair.
Baler and tractor Craig wife states $11,500, Husband states $6,000 no reliable
valuations split difference
8,500
Other yard equipment ownership and valuations is unclear wife assesses at
$33,000 husband assesses at $670 any number is arbitrary. The onus is on respondent
to establish value of his assets - Homsi v. Zaya, [2009] 0NCA 322. Respondent denies
ownership of most of the equipment in the yard His witness, Amanda testified that he
owned all of it the photographs show the Hi-hoe, motorcycle, snow blower, trailers,
snow mobiles, wood pile, rototiller, International tractor, horse trailer, 4 wheeler, argo,
other snow mobiles Value is less than $33,000. In default of a reliable opinion I rely on
the photographs and assign a value of $10,000 to the yard equipment.

2011 ONSC 7099 (CanLII)

circumstances and vulnerabilities surrounding execution of the minutes are compensated


by independent legal advice or other professionals or both there is a stronger basis for
considering the agreement as a genuine mutual desire to finalize the marriage terms and
indicative of their substantive intentions. In these circumstances the imbalance vitiated
the bargaining process and they trump the objectives of certainty, finality and autonomy.

Page: 12

Grand Am

500
$2,500
Bank Accounts/Saving
39
$2,539

Debts
Chip Wagon Loan
Tax arrears
Scotia bank Visa
HBC MC
Legal aid lien
Sears
Walmart
The Source

_______
$251,000
455
$251,455

$17,420
2,340
14,750
4,000
6,000
2,100
800
1,000
$3,900

$44,510

Assets and Liabilities on date of marriage


Vehicles
Debt Legal aid lien
Net deduction

$8,000
(6,000)
$2000

Excluded property traced to assets other than matrimonial home


Motorcycle and truck

$19,000

Net Family properties


Applicant - $2,539-$3,900=$00.00
Respondent - $251,455-$44,510-$2,000-$19,000=$185,945
Payment owing - $92,972

Unconscionability of an equal division


[53]

The matrimonial home burned to the ground on January 21, 2011. It was vacant, the
utilities were disconnected and the propane tank had been removed. Basil cancelled the
insurance effective July 15, 2010. The fair mark value of the matrimonial home is
significantly less without the house and the necessary outstanding clean up expenses.

2011 ONSC 7099 (CanLII)

10,000

[54]

The respondent relies upon paragraph FLA 5(6)(h). He says that the marked postseparation date decline in value of the matrimonial home relates to its disposition,
preservation and maintenance. He argues that in these circumstances, it would be
unconscionable to order an equalization of net family properties based upon a
separation-date valuation of his interest in the matrimonial home; to do so would be to
require him to make an equalization payment equal to his current net worth.

[55]

The limited exception to the general equalization rule is a situation that leads to an
unconscionable result, whether that result flows from fault-based conduct or not.

[56]

The first step is to ascertain the net family property of each spouse, by determining and
valuing the property each owned on the valuation date (subject to the deductions and
exemptions set out in s. 4). Next, the court applies s. 5(1) and determines the
equalization payment. Finally and before making an order under s. 5(1) the court
must decide whether the equalization of net family properties would be unconscionable
under s. 5(6), having regard to the factors listed in paragraphs 5(6)(a) through (h) - Serra
v. Serra 2009 ONCA 105.

[57]

A court may take into account a post-separation date change in the value of a spouses
assets, and the circumstances surrounding such a change, for purposes of determining
under s. 5(6) of the Family Law Act whether equalizing net family properties would be
unconscionable. An order for an unequal division of net family properties is exceptional,
however, and may only be made on such a basis (i) where the circumstances giving rise
to the change in value relate (directly or indirectly) to the acquisition, disposition,
preservation, maintenance or improvement of property (s. 5(6)(h)), and (ii) where
equalizing the net family property would be unconscionable, having regard to those
circumstances (taken alone or in conjunction with other factors mentioned in s. 5(6)).

[58]

In this regard, 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 Serra v. Serra
2009 ONCA 105.

[59]

The true target of the limited exception to the general rule is a situation that leads to an
unconscionable result, whether that result flows from fault-based conduct or not.

[60]

In Serra the equalization of net family property required Mr. Serra to pay more than his
total net worth because of a marked decline in the value of his major asset postseparation over which he had no control and in spite of his best efforts to save the
business in the face of Ms. Serras trust claims, the preservation order and the need to
comply with his support obligations was considered unconscionable. The court observed
that Ms. Serra was not a woman without means. The trial judge found she left the
marriage with assets worth a considerable amount. She had net family property of
about $1 million in addition to her interest in the Florida property. She lived, and
continued to live, a life of relative luxury, 6 months in Canada and 6 months in Florida.

2011 ONSC 7099 (CanLII)

Page: 13

Page: 14

[61]

Basil decided to self-insure the matrimonial home. The Borutski facts are similar in
terms of reduction in value after separation. The comparison ends there. The litigation
process severely restricted Mr. Serras ability to react to changing market circumstances.
He did everything he could to protect his business and lost to market forces beyond his
control. Here, Basil unilaterally and without notice to Mary Ann terminated the fire
insurance and vacated the property while resisting every initiative Mary Ann took to reoccupy and protect the premises.

[62]

While it was reasonable and just that the Serras ought to share somewhat in the market
forced value reductions there is little merit in imposing a reduction on Mary Ann. The
loss was occasioned by the risk Basil assumed by his own actions. The result does not
have the effect of shocking the conscience of the court.

Vesting Order
[63]

How does Mary Ann collect on this award? Mary Ann is entitled to judgment against
Basil for payment in the amount $92,972 together with prejudgment interest commencing
September 2008 in accordance with the Courts of Justice Act. The only exigible asset is
the matrimonial home and its current value could be less than the judgment.

[64]

It is the interest of the parties to realize the highest return on the sale of the matrimonial
home. Mr. Crosbie seeks an order placing management of the sale of the matrimonial
home in Mary Anns care. He argues that enforcement under the Execution Act will
result in a significantly discounted sale price.

[65]

The FLA contemplates issues of enforcement efficiency in section 9. The rationale for a
vesting order is to permit the court to direct the parties to deal with the property in
accordance with the judgment in situations where the one is necessary to ensure
compliance with the obligation. Mary Ann would take title subject to outstanding
encumbrances.

[66]

I agree that a sheriffs sale would lead to a compromised sale price. Round Lake is a
small, insular community. An order vesting legal title to the matrimonial home in Mary
Anns name significantly increases the opportunity of realizing as much as possible on
the liquidation. Accordingly, an order is to issue vesting title to the matrimonial home in
Mary Anns name. Mary Ann shall deliver an accounting in respect to the sale and
disposition of sale proceeds. Any surplus realized is properly payable to Basil.

Costs

2011 ONSC 7099 (CanLII)

The trial judge found she had been very well compensated for her contributions to the
business during the course of the marriage.

[67]

The parties exchanged offers to settle which were provided to the court in sealed
envelopes at the end of submissions. Their contents reveal that the applicant offered
significantly less than achieved at trial. The respondent offered significantly less than the
applicant achieved at trial. The applicant is the successful party. In terms of setting the
amount of costs I invite the parties submissions. The Applicant shall have costs against
the Respondent on a partial indemnity basis. The parties are to deliver their costs
submissions within fifteen days of release.

[68]

Accordingly order to issue:

1. The respondent shall pay an equalization payment to the applicant in the amount of
$92,972;
2. The applicant shall have prejudgment interest in accordance with the Courts of Justice
Act from September 1, 2008 to December 1, 2011. Post judgment interest to accrue from
December 1, 2011 pursuant to the Courts of Justice Act.
3. Pursuant to subsection 9(1)(d) of the FLA title to 2177 Round Lake Road, Hagarty
Township, Renfrew County, being part lot 15, Concession 13 as in R306425 PIN 57525003 (LT) subject to executions is vested in Mary Ann Borutski and Basil Borutskis
consent to alienation pursuant to s, 21 of the FLA is dispensed with;
4. Mary Ann Barutski shall have exclusive possession of the aforesaid lands and premises
effective December 1, 2011;
5. The applicants WSIB pension accumulation is exempted from the equalization process;
6. The hunt camp lands and premises are exempted from the equalization process. When
Basil Borutski applies to alienate title, any outstanding writs of execution in respect to
this proceeding are to be lifted to accommodate the transfer;
7. The applicant shall have costs against the respondent on a partial indemnity basis. The
parties are to make submissions on quantification within fifteen days of release.

Justice Rick Leroy


Released: December 8th, 2011

2011 ONSC 7099 (CanLII)

Page: 15

ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Mary Ann Borutski
Applicant
and
Basil Joseph Borutski

Respondent

REASONS FOR JUDGMENT

Justice Rick Leroy


Released: December 8th, 2011

2011 ONSC 7099 (CanLII)

CITATION: Borutski v. Borutski, 2011 ONSC 7099


COURT FILE NO.: 08/D1051 Pembroke
DATE: 2011/12/08