Court of Appeal for Ontario

Citation: Maslic v. Maslic, 2013 ONCA 400 Date: 2013-07-12 Docket: C56379

Before: Feldman, Sharpe & Strathy JJ.A.

Between:

Marina Maslic Applicant / Respondent

and

Vaso Maslic Respondent / Appellant

Counsel: Olena Brusentsova, for the appellant Steven Benmor, for the respondent

Heard and released orally: June 7, 2013

On appeal from the order of Justice Douglas K. Gray of the Superior Court of Justice, dated September 12, 2012.

ENDORSEMENT

[1] Despite the able submissions of counsel for the appellant, we see no merit in this appeal. As the appellant had failed to respond to correspondence from the respondent or to the application for custody and child support, the respondent properly proceeded to an uncontested hearing before Justice Donohue.

[2] The appellant objects to the statement by Justice Gray during his consideration of whether to order a new trial that if the appellant did not meet all three branches of the test for setting aside an order that he had no jurisdiction to do so. In this case the appellant did not meet the second branch of the test as he gave no explanation for his failure to respond to the legal proceedings. While Justice Gray used the term “jurisdiction” it is clear that considered the full test and all of the factors and exercised his discretion not to set aside the order. We agree with his decision.

[3] The appellant also objects that the best interests of the children were not considered by Justice Donohue in the custody and access order. Again, we do not agree. That overriding issue was considered on the evidence in the record. Further, the evidence before Justice Gray was that since the order of Justice Donohue, the children are thriving.

[4] Counsel for the respondent has pointed out that the order of Justice Donohue includes a dispute resolution mechanism that the appellant may use without going to court. When weighing the prejudice criterion, we accept the submissions that this provides the appellant with a way to deal with any concerns regarding access and that there would be significant prejudice to the respondent and the children if the order were to be set aside and the entire matter reopened.

[5] The appeal is therefore dismissed.

[6] We order costs on the partial indemnity scale in the amount of $5000.00 in addition to the $2000.00 ordered by Justice Goudge which was in the cause of the appeal. Both amounts shall be enforceable by the family responsibility office.

“K. Feldman J.A.”

“R. Sharpe J.A.”

“G.R. Strathy J.A.”