Court File and Parties

Court File No.: FS-18-295 Date: 2025-12-02 Superior Court of Justice - Ontario

Re: Iryna Ivaniv, Applicant And: Volodymyr Kokhanovskyy, Respondent

Before: Justice Ranjan K. Agarwal

Counsel: Iryna Ivaniv, acting in person Alex Sutton, for the respondent

Heard: November 17, 2025

ENDORSEMENT

I. INTRODUCTION

[1] The parties were married for almost 12 years. They have four children, two of whom are adults now. After their separation, the court made final orders at an uncontested trial regarding child support, equalization, post-separation adjustments, and changing title to the matrimonial home.

[2] The respondent Volodymyr Kokhanovskyy moves for an order setting aside the orders. He submits that notice of these proceedings was inadequate. The applicant Iryna Ivaniv responds that Volodymyr was served properly and, even if not, it would be unjust to set aside the orders now.

[3] Even though it has been five years, I endorse an order setting aside the orders. Volodymyr didn't get notice of this proceeding. He has an arguable case on the merits. It would be unjust to deny him his day in court.

II. BACKGROUND

A. Facts

[4] The parties were married in September 2006. They separated in 2018. They have four children: Julian (age 21), Oleksandr (age 18), Yaroslav (age 15), and Myroslav (age 15).

[5] In September 2018, Volodymyr went to Ukraine for medical treatment. Iryna started this proceeding two months later. She claimed for, among other things, a parenting order, child support, spousal support, equalization, and a vesting order over the matrimonial home. Iryna tried, unsuccessfully, to serve Volodymyr. In January 2019, Van Melle J ordered that Iryna could serve Volodymyr by email (luxcenter7@gmail.com).

[6] Volodymyr returned from Ukraine in June 2019. He was arrested for assaulting Iryna back in June 2018, and released on his own recognizance.

[7] As I discuss in greater detail below, Volodymyr started a family law case for only a parenting order in the Ontario Court of Justice. But Volodymyr didn't answer this case. In March 2020, Trimble J made several orders at an uncontested trial:

(a) child support based on imputing Volodymyr's income to be $51,380;

(b) a declaration that Iryna is the beneficial owner of the matrimonial home; and

(c) equalization from Iryna of $46,776.30, which is set off against post-separation adjustments from Volodymyr of $43,885.

[8] In May 2020, Trimble J made two further orders: (a) prejudgment interest; and (b) costs of $25,000.

[9] Iryna's claim for a parenting order were withdrawn. These issues were settled at an OCJ case conference in June 2021.

[10] Volodymyr moved to set aside these orders in November 2020.

B. Procedural Background

[11] The motion was initially scheduled for January 2021. Price J adjourned the hearing, in part because Iryna sought to remove Volodymyr's lawyer for conflict of interest. He also made an interim order barring Iryna from further encumbering the matrimonial home until the hearing of the motion. In April 2021, McGee J dismissed Iryna's motion, and ordered her to pay $7500 in costs.

[12] In order to stop FRO from further enforcement (and at FRO's insistence), Volodymyr started a motion to change in May 2021, which was effectively combined with his set-aside motion.

[13] At a case conference in December 2021, Fragomeni J scheduled Volodymyr's motion for November 2022. He also made a timetable order for the steps in the motion. Until then, both parties were represented by lawyers.

[14] In October 2022, Volodymyr became self-represented. The motion never proceeded. Volodymyr didn't meet the timetable order, so the motion was deemed to be abandoned.

[15] Almost two-and-a-half years later, there was a DRO conference. The clerk had served a notice of approaching dismissal in October 2024, which spurred Volodymyr to arrange a case conference to avoid statutory dismissal of his case. The DRO directed that this matter be conferenced by a judge to organize it for a hearing.

[16] The case conference was scheduled for May 30, 2025. But Iryna didn't file any materials or attend the conference. So Justice Mandhane adjourned it to July 11, 2025.

[17] At the July conference, I directed that this motion be heard by me as a one-day focused hearing on whether the orders should be set aside for fraud or lack of notice. I set time limits for the parties' evidence, and directed that they could rely on their most recent affidavits (which consolidated or repeated their prior evidence).

C. Law

[18] The court may, on a motion, change an order that was obtained by fraud, or was made with notice, if an affected party was not present when the order was made because the notice was inadequate or the party was unable, for a reason satisfactory to the court, to be present. See Family Law Rules, r 25(19).

[19] The court's ultimate task on a motion to set aside a default judgment is to determine whether the interests of justice favour granting the order. The following factors are considered:

(a) whether the moving party moved promptly, after learning of the order, to have it set aside;

(b) whether the moving party has provided an adequate explanation for the failure to respond to the proceeding in accordance with the Family Law Rules;

(c) whether the moving party has established an arguable case on the merits;

(d) whether the moving party is acting in good faith and with "clean hands"; and

(e) the prejudice that may be suffered by the moving party if the motion is dismissed and to the responding party if the motion is allowed.

See Zia v Ahmad, 2021 ONCA 495, at para 4; Mountain View Farms Ltd. v McQueen, 2014 ONCA 194, at paras 48-49.

[20] These factors are not to be treated as rigid rules—the court must consider the particular circumstances of each case to decide whether it is just to relieve the respondent from the consequences of their default. See Mountain View, at para 50.

III. ANALYSIS AND DISPOSITION

A. Did Volodymyr move promptly, after learning of the orders, to set them aside?

[21] I find that Volodymyr moved promptly. In oral evidence, he says he learned about this case in September 2020, when FRO sent him a Statement of Arrears. He started this motion in November 2020. He says any delay was caused by pandemic lockdowns and the challenges of finding a lawyer fluent in Ukrainian.

[22] Iryna responds that Volodymyr isn't credible. In Volodymyr's affidavit for this motion, he says he learned about the final orders in August 2020. Then, in cross-examination, he said he received a letter from FRO in July 2020. Iryna adduced the Statement of Arrears, which she swore on August 13, 2020.

[23] Volodymyr has satisfactorily explained this inconsistency: FRO told him it had opened an account in July 2020, and he received the statement in August or September 2020. That's a believable explanation.

[24] Even if Volodymyr learned about the final orders in July 2020, a delay of four months to find, retain, and instruct a lawyer isn't tardy, especially against the backdrop of the pandemic.

B. Has Volodymyr provided an adequate explanation for the failure to answer the case?

[25] I find that Volodymyr has provided a satisfactory explanation. The evidence shows that Volodymyr never received notice of this case.

[26] Volodymyr's theory is that Iryna changed his email password so he couldn't access the account. Iryna strenuously objects to this accusation. I don't need to decide this issue. The evidence shows that even if Volodymyr had access to the email, he didn't get the suitpapers. The most reasonable explanation is that Volodymyr stopped accessing the luxcenter7 account after August 2018, and Iryna was incorrect to think that emailing that account would bring the documents to his attention.

[27] First, the last email from Volodymyr using the luxcenter7 address was in August 2018. Between then and January 2020, Iryna didn't receive any emails from Volodymyr using that address.

[28] Second, Volodymyr testified that he was locked out of his luxcenter7 address, and the password recovery contact was his Canadian telephone number, which his son, Julian, started using after Volodymyr went to Ukraine. Volodymyr has adduced a screenshot of the recovery contact—the last two digits match Volodymyr's old Canadian telephone number. I accept Volodymyr's evidence on this point.

[29] Third, Volodymyr started the OCJ proceeding after Iryna obtained the substituted service order but before the uncontested trial. Given that Iryna was seeking a parenting order in the SCJ proceeding, it would have made no sense for Volodymyr to start an OCJ proceeding for a parenting order if he knew about the SCJ case.

[30] Fourth, Volodymyr used a different email address (volodymyrkokhanovskyy@gmail.com) in his OCJ proceeding.

[31] Finally, Iryna admits that she never told Volodymyr about the pending SCJ proceeding after he returned to Canada, even though they were in contact through the OCJ proceeding. There was a case conference in December 2019. She says that because Volodymyr was under a bail condition to abstain from communicating with her, there was no opportunity to tell him about the SCJ case. I don't find this explanation reasonable—Iryna could've communicated this information to Volodymyr through a lawyer, which was expressly allowed, or even through the court.

[32] As a result, I conclude that the notice of this case was inadequate. In making this decision, I'm not setting aside Van Melle J's order. I accept that Iryna had reasonable grounds to believe that emailing Volodymyr at his luxcenter7 address would bring the documents to his attention. But between his non-response to the emails, his new email address, and the OCJ proceeding, she should've realized that something was amiss. At that point, it was incumbent on her to notify him about the SCJ proceeding. Though she emailed him the uncontested trial materials in March 2019, she should've sent them to his new email address once she had that information, or notified him orally during the OCJ proceeding.

[33] As an aside, Volodymyr sought to adduce evidence from Jaroslaw Brodziuk and Iryna Lutska at the focused hearing. Mr. Brodziuk's affidavit was served a few days before the hearing. Ms. Lutska's affidavit was served a few years ago, but she wasn't available for cross-examination. I refused to admit either affidavit because doing so would be unfair to Iryna. In any event, the affidavits aren't probative. At their highest, they establish that Iryna had information that Volodymyr was in Ukraine in November 2019. Even if that is correct, the evidence doesn't help determine whether Volodymyr received Iryna's emails.

C. Has Volodymyr established an arguable case on the merits?

[34] Volodymyr's evidence shows that he has an arguable defence to Iryna's claims for transfer of the matrimonial home and child support. I don't need to consider his defences to the equalization payment, post-separation expenses, or the separation date.

[35] First, at the uncontested trial, Iryna argued that her parents gifted her the money for the down payment to buy the matrimonial home, and she paid all of the mortgage, taxes, and utilities. On that basis, Trimble J ordered that she was the beneficial owner of the home, and transferred title to her. Volodymyr disputes Iryna's narrative—he says that he paid part of the down payment, and him and Iryna jointly paid the maintenance costs. Iryna hasn't adduced any evidence about why the property was titled in Volodymyr's name.

[36] The respondent need not show that the defence will inevitably succeed. They must show that their defence has an air of reality. See Mountain View, at para 51. Volodymyr's defence has a reasonable prospect of success. If he's successful in rebutting Iryna's claim that he didn't financially contribute to the house, there's no basis to transfer title to her.

[37] Second, Iryna submitted to Trimble J that Volodymyr earned more than $50,000 based on Volodymyr's assertions to her during their marriage. Volodymyr's notices of assessment show that his reported income is far less than his imputed income:

Year	Line 15000 Income
2019	$7,405
2020	$25,502
2021	$25,146

[38] It could be that Volodymyr has unreported income. But there's an air of reality to his defence that, in fact, his income for child support purposes is far less than imputed to him.

[39] On these two issues alone, Volodymyr has an arguable defence.

D. Is Volodymyr acting in good faith and with "clean hands"?

[40] Iryna argues that Volodymyr has acted in bad faith. She points to two examples. First, the delay in litigating this motion. I accept that Volodymyr delayed the motion from November 2022 to February 2025. But his delay is because he was self-represented, and this case has a unique and challenging procedural posture. It's framed as a motion to change, even though it's a motion to set aside an order. After he missed the filing deadlines in November 2022, it would have been challenging to schedule this motion again (as shown by the three case conferences it took to get it scheduled now).

[41] Second, Iryna argues that Volodymyr placed a Designation of Matrimonial Home on the property, which frustrated her ability to refinance the mortgage when it became due. She has since borrowed money from her parents to pay off the mortgage. Iryna argues that Volodymyr acted in bad faith in frustrating the refinancing. I can't find that Volodymyr took this step with malice. He claims the house is a matrimonial home, so the designation is bona fide. There was no evidence before me about what happened when the mortgage came due.

[42] As a result, I find that Volodymyr did not act in bad faith or with unclean hands.

E. What prejudice may be suffered by Volodymyr if the motion is dismissed and by Iryna if the motion is allowed?

[43] The equities weigh in favour of setting aside the orders. If I deny Volodymyr's motion, he will be robbed of his day in court. Though he has moved to change the child support orders, he will still owe significant retroactive child support based on, arguably, inflated income attributed to him. More importantly, he will have lost his equity in the family home.

[44] In contrast, there is some prejudice to Iryna that arises from the uncertainty created by these orders being unwound. But some of the fault lies at her feet—she should've notified Volodymyr about this proceeding when he came back to Canada, and she caused some of the delay between 2020 and now (e.g., her conflict motion and at least one aborted case conference because she didn't upload materials). Further, if the court finds that Volodymyr has an interest in the matrimonial home, he may also be liable for the corresponding debt. On child support, he's been paying table child support based on his reported income, so Iryna is not going to be asked to reimburse him if he's successful.

[45] As a result, the interests of justice favour granting an order setting aside the final orders of Trimble J, dated March 2, 2020, and May 12, 2020.

IV. COSTS

[46] Though Volodymyr is presumptively entitled to his costs of this motion because he's the successful party, he is asking this court for an indulgence. As a result, it's an appropriate case to order that there shall be no costs of the motion or the focused hearing.

[47] As the costs orders against Volodymyr have been set aside, the only unpaid costs order is McGee J's order against Iryna. In the circumstances, I am endorsing an order staying the payment of that costs order until final disposition of this case. Iryna is still liable for those costs, but they shall be paid as part of the final resolution of the parties' claims.

V. CONCLUSION

[48] It is self-evident that this case has been going on too long. The result of my order is that the parties are at the pleading stage of Iryna's initial application. As she has filed an amended application, the next step is for Volodymyr to serve and file his answer, which he shall do by December 12, 2025. Iryna's reply, if any, shall be served and filed by December 23, 2025.

[49] As the parties have had several case conferences and a mediation, I am directing that they shall schedule a settlement conference with a DRO (using Calendly). The settlement conference shall be held on a mutually available date but on or before January 30, 2026.

[50] If the parties can't settle the case at the settlement conference, they shall get a Family Assignment Court date from the DRO or the trial office. At the Family Assignment Court date, they should assume that the court will schedule a trial management conference and a trial date.

[51] To ensure that the parties have the financial disclosure they need for the settlement conference, I am directing them to serve and file a financial statement (Form 13.1) by January 2, 2026. Attached as Appendix A to this endorsement are the documents that the parties must also serve.

Agarwal J

Date: December 2, 2025

APPENDIX A

1. personal income tax returns for 2018 to 2024

2. notices of assessment and reassessment for 2018 to 2024

3. if the parties are employees, a statement of earnings showing the total earnings paid in 2025 or a letter from their employer showing the party's salary

4. statements showing any income from employment insurance, social assistance, a pension, workers compensation, disability payments or any other source for 2025

5. the financial statements of the party's businesses or corporations for 2018 to 2024

6. statements showing a breakdown of all salaries, wages, management fees or other payments or benefits paid to, or on behalf of, persons or corporations with whom the spouse does not deal at arm's length

7. proof of the amount of any special or extraordinary expenses, within the meaning of section 7 of the child support guidelines, being claimed by any party

8. documents related to the matrimonial home, from 2018 to present, including any valuations, and mortgage or other encumbrance documents