Court of Appeal for Ontario

Citation: Jasinska v. Jasinski, 2016 ONCA 993 Date: 2016-12-30 Docket: C62001

Before: Sharpe, Lauwers and Miller JJ.A.

Between:

Mariola Jasinska Applicant (Respondent)

and

Piotr Jasinski Respondent (Appellant)

Counsel: M.Z. Tufman, for the appellant Andrew Kania, for the respondent

Heard and released orally: December 21, 2016

On appeal from the judgment of Justice Meredith Donahue of the Superior Court of Justice, dated April 12, 2016.

ENDORSEMENT

[1] The appellant appeals an order dismissing his motion to set aside a default order that the matrimonial home be sold and that $400,000 be paid to the respondent by way of equalization.

[2] The appellant had failed to file an answer or a financial statement. The history of these proceedings is summarized at paragraph 4 of the respondent’s factum. That history shows a persistent, indeed, deliberate failure on the part of the appellant to respond to these proceedings.

[3] The central submission made by the appellant on this appeal is that the default order was in fact a temporary or interim order and that the judge hearing the set aside motion misunderstood and mischaracterized it as a final order. He relies on the fact that the box “temporary” at the top of the order is checked and that the order provides that the payment is to be “on account of the equalization payment owing to the applicant”. He argues that properly construed the order was for an advance on equalization and that further proceedings were contemplated. He asks that he now be permitted to file an answer and financial statement.

[4] We disagree with that submission. All parties appearing at the set aside motion treated the order as a final order as did the motion judge. We are satisfied that when the materials filed by the respondent in support of her motion for an order for equalization are considered, the request she made was in substance for a final determination of her equalization entitlement. Ticking the temporary box was inconsistent with the substance of this order. The words “on account of” were perhaps inapt, but in our view they cannot convert what was in substance a final order into a temporary or interim order.

[5] We note as well that the order did not use the more conventional words “advance on equalization” used to indicate that the order was intended to be interim in nature.

[6] The appellant also alleges ineffective assistance of counsel. That ground is rarely made out in civil cases and it is not made out here. The evidence, including that of the appellant’s allegedly ineffective counsel, demonstrates that the appellant failed to give appropriate or timely instructions to move to set aside the default order. Whatever the shortcomings of the appellant’s counsel, they should not be visited upon the respondent at this stage of these proceedings.

[7] Accordingly, the appeal is dismissed. The respondent is entitled to her costs of the appeal fixed at $30,000, inclusive of disbursements and taxes to be paid to her by the Sheriff from the proceeds being held by the sale of the matrimonial home. If there are no remaining funds being held by the Sheriff, the costs should be paid by the appellant.

“Robert J. Sharpe J.A.”

“P. Lauwers J.A.”

“B.W. Miller J.A.”