DATE: 20040316

DOCKET: C40581

COURT OF APPEAL FOR ONTARIO

RE: OKSANA MIKOULIAK, Petitioner (Wife) Respondent in Appeal – and – MYKKOLA MYKULAK, Respondent (Husband) Appellant in Appeal

BEFORE: McMURTRY C.J.O., MOLDAVER and CRONK JJ.A.

COUNSEL: Glenn R. Solomon and Mark S. Shapiro, for the appellant in appeal Jerald W. MacKenzie, for the respondent in appeal

HEARD: March 11, 2004

RELEASED ORALLY: March 11, 2004

On appeal from the judgment of Justice L. Snowie of the Superior Court of Justice dated August 6, 2003.

E N D O R S E M E N T

[1] In our view, the motions judge’s finding that counsel and the parties always understood that the husband would keep his business, the wife would keep the condominium and the proceeds of sale of the former matrimonial home would be equally divided between the parties in satisfaction of their respective property entitlements, including the husband’s entitlement to an equalization payment, is not supported by the evidence. Indeed, the evidence of the wife’s former solicitor, who represented her throughout the settlement discussions, is to the contrary.

[2] Accordingly, the motions judge’s judgment cannot stand. The parties have been unable to agree that there are any parts of the judgment that can stand.

[3] The appeal is allowed and the judgment dated August 6, 2003 is set aside in its entirety, including the matter of the costs of the proceedings before the motions judge. In our view, the parties should bear their own costs of the motions below and of this appeal.

“R. McMurtry C.J.O.”

“M. J. Moldaver J.A.”

“E.A. Cronk J.A.”