Ontario
2026 ONSC 2913
Release Date: May 19, 2026
Court File Number:
Superior Court of Justice
FS-25-00000114-0000
74 Woolwich Street, Guelph, ON N1H 3T9
Endorsement
Date
Applicant(s):
LESIAK, Zofia Anna
☒ Present
May 14, 2026
Counsel:
Michael PURVES-SMITH
☒ Present
email:
[michael@purvessmithlaw.com](mailto:purvessmithlaw@gmail.com)
☐ Duty counsel
JUSTICE
C. PETERSEN
Respondent(s):
LESIAK, Zygmunt Henryk
☒ Present
Counsel:
Samalie NSUBUGA
☒ Present
☒ In person
email:
☐ Duty counsel
☐ Videoconference
Respondent(s):
☐ Present
☐ Audioconference
Counsel:
☐ Present
☐ In writing
email:
☐ Duty counsel
OVERVIEW
[1] The parties are married. They separated on October 8, 2024. They jointly own a matrimonial home located on Fairview Drive in Brantford. The respondent has lived in the matrimonial home since the date of their separation. The applicant has resided with her sister in Guelph.
[2] This Application was issued on March 20, 2025. On May 27, 2025, Justice Lemon ordered substituted service of the Application and supporting documentation by affixing the documents to the main entrance of the matrimonial home and sending them by regular mail. Service was effected in accordance with that order on June 27, 2025. A copy of Justice Lemon’s order was served in the same fashion at the same time. No Answer has been filed by the Respondent to date.
[3] There have been several steps in the proceeding, including a case conference before Justice Cudjoe, and motion hearings before Justice Juginovic and Justice Fowler Byrne. The respondent did not file any materials with the court and did not attend court for any of these appearances.
[4] On January 16, 2026, pursuant to the applicant’s uncontested motion, Justice Juginovic ordered the sale of the parties’ matrimonial home. She made ancillary orders regarding the procedure for listing the property for sale and dispensed with the need to obtain the respondent’s consent if he refused to cooperate with the sale. She ordered that, if he interfered in any way with the listing or sale of the property, the applicant could bring a motion on three days’ notice for further directions or relief.
[5] Justice Juginovic also ordered the respondent to serve and file an Answer and a sworn Financial Statement within 10 days of the date of her order. She further ordered the respondent to make full financial disclosure.
[6] The respondent did not cooperate with the listing of the property, so the applicant brought a motion for further relief to facilitate the sale of the matrimonial home. On March 31, 2026, Justice Fowler-Byrne granted the applicant exclusive possession of the matrimonial home pending its sale and made ancillary orders regarding the sale of the property.
[7] Justice Fowler Byrne also ordered the respondent to vacate the matrimonial home and remove all his personal belongings and household contents within 15 business days of service of the order. She directed that service of her order be conducted by placing a copy of the issued order in the respondent’s mailbox at the property and taking and preserving a photograph confirming same. She further ordered that, if the respondent did not vacate the property, the applicant could request issuance of a writ of possession and file the writ with the Sheriff’s office for enforcement.
[8] The respondent did not comply with any of the above orders. Pursuant to Justice Fowler-Byrne’s order, the applicant obtained a writ and filed it with the sheriff’s office. An eviction of the respondent from the property was then scheduled for May 12, 2026.
[9] The respondent claims that he had no notice of the court proceeding, or of any steps in the proceeding, until he received notice of the impending eviction on or about May 8, 2026. He promptly retained a lawyer and filed a motion on May 11, 2026, requesting an emergency hearing.
[10] The respondent’s motion seeks an order to set aside or stay the enforcement of Justice Juginovic’s order dated January 16, 2026, and Justice Fowler-Byrne’s order dated March 31, 2026. Upon review of his request for an emergency hearing, I found that the motion was urgent and scheduled it to be heard on an expedited basis on May 14, 2026.
[11] The eviction took place on May 12, 2026, as scheduled. The applicant filed photographic evidence of the interior of the home as she found it. The photos document unsanitary conditions and serious hoarding. The rooms are filled with excessive amounts of boxes, papers, other property, and garbage. Food items are not properly stored. The floors are obstructed by extreme clutter. I agree with the applicant’s submission that the condition of the home poses a significant risk of deterioration of the property if left unaddressed.
[12] The fact that the respondent was removed from the property on May 12, 2026 does not render the issues raised by his motion moot. He now seeks a right to return to the property and reside there until such time as the issues raised in the Application are resolved by court order or agreement of the parties. He submits that it is his intention to purchase the applicant’s ownership interest in the matrimonial home. He seeks 30 days to file an Answer to the Application with supporting documentation.
[13] The applicant opposes the motion, but consents to the requested extension of time to file an Answer and sworn Financial Statement.
ANALYTICAL FRAMEWORK
[14] The respondent’s motion is brought pursuant to Rule 25(19) of the Family Law Rules, which states:
The court may, on motion, change an order that,
(a) was obtained by fraud;
(b) contains a mistake;
(c) needs to be changed to deal with a matter that was before the court but that it did not decide;
(d) was made without notice; or
(e) 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.
[15] The word “change” in this rule encompasses variation, suspension or setting aside of an order (in whole or in part): Gray v. Gray, 2017 ONCA 100, at para. 26.
[16] The respondent relies on subsection (d) and (e) of Rule 25(19), arguing that he did not have notice of the motions in question and therefore was not present when the motions were argued and the impugned orders were made.
[17] The respondent submits that justice and fairness require setting aside the orders in the circumstances. He relies on the decision of this Court in Benarroch v. Abitbol, 2018 ONSC 5964, in which Justice McGee adopted the factors considered in civil proceedings to determine whether to set aside a default judgment. Those factors were established by the Court of Appeal for Ontario in Mountain View Farms v. McQueen, 2014 ONCA 194, at paras. 47-50. The relevant factors are:
a. whether the motion to set aside was brought promptly after the moving party learned about the order;
b. whether there is a plausible explanation for the moving party’s default;
c. whether the moving party has an arguable defence on the merits;
d. the prejudice to each party (if the motion is granted or dismissed); and
e. the effect of the order on the integrity of the administration of justice.
[18] I heard submissions from both parties about the application of these factors in the context of this case. Not surprisingly, the respondent argues that the totality of the factors weighs in favour of granting his motion to set aside both the impugned orders, whereas the applicant argues that the factors militate in favour of dismissing the motion to set aside. Cognizant that I have jurisdiction to set aside one but not both the impugned orders, I also invited submissions from counsel on the different possible permutations of orders that could be made.
[19] However, consideration of the factors adopted in Benarroch v. Abitbol is premised on a threshold finding that Rule 25(19) applies. For the reasons explained below, I have concluded that the respondent was properly and adequately served with notice of the motions, and he does not have a satisfactory reason to explain why he did not attend and participate in the motion hearings. Consequently, Rule 25(19) does not apply, and it is unnecessary for me to review the factors in Benarroch v. Abitbol.
ANALYSIS OF EVIDENCE
[20] In his affidavits, the respondent deposes that he never received any correspondence from the applicant’s counsel regarding attempts to negotiate a resolution of family law issues without resort to litigation. However, the applicant’s evidence establishes that this correspondence was delivered directly to his mailbox. Photographic evidence shows that the envelope was clearly visible to anyone who approached the front entrance of the home, and the envelope was no longer in the mailbox the day after it was delivered. I accept the applicant’s evidence that she also emailed the respondent, but he did not acknowledge or respond to her email messages. Based on this evidence, I find it probable that the respondent received the correspondence and chose to ignore it.
[21] The applicant felt compelled to commence a court Application because the respondent would not communicate with her or her lawyer. As noted above, she obtained an order for substituted service of the Application because her process server was unable to personally serve the respondent despite multiple attempts.
[22] The applicant served the respondent with a copy of her application, sworn Financial Statement, and Justice Lemon’s order for substituted service in accordance with the court ordered method of service on June 27, 2025. The envelope containing the documents was securely taped to the front entrance door of the matrimonial home, and a duplicate copy was sent to the respondent at the address of the matrimonial home by regular pre-paid mail.
[23] When the respondent subsequently failed to appear at a case conference, Justice Cudjoe ordered that the applicant could bring a motion for sale of the matrimonial home and serve the respondent with notice of the motion by substituted service, in the same fashion as previously ordered by Justice Lemon. The applicant’s sister, Cecylia Maksymchuk, swore an affidavit affirming that she conducted service in accordance with the terms of the court order by securely affixing notice of the motion and a copy of Justice Cudjoe’s order to the front door of the matrimonial home on November 26, 2025. Photographic evidence shows the envelope, addressed to the respondent, taped and clearly visible on the front door of his residence.
[24] When Justice Juginovic ordered the sale of the matrimonial home, she authorized the applicant to select the listing agent for the sale and ordered the respondent to cooperate with the agent. The applicant retained an experienced real estate agent named Steve Spaulding. Mr. Spaulding deposed that he prepared a letter of consent for the respondent to sign and delivered it personally to the matrimonial home. He placed it in an envelope with a copy of Justice Juginovic’s order and left it in the respondent’s mailbox. He also phoned the respondent and left a voicemail message.
[25] The respondent did not sign the letter of consent. Mr. Spaulding deposed that he made four separate phone calls to the respondent but was not able to communicate with him. The property therefore was not listed for sale.
[26] When the applicant decided to bring a further motion for exclusive possession of the matrimonial home, service of the Notice of Motion, and of the supporting affidavits, was effected by mail and also by placing the documents in an envelope in the mailbox of the matrimonial home. The applicant’s sister deposed that she delivered the envelope on March 14, 2026.
[27] When Justice Fowler Byrne subsequently ordered the respondent to vacate the property, she also ordered that a copy of her order be served by the same method of substituted service previously ordered by Justice Lemon and Justice Cudjoe (i.e., by affixing the document securely to the front entrance of the home).
[28] The respondent asserts that he was never personally served with any court documents. This is true. However, he was served by a substitute method that was authorized by the court.
[29] He deposes that he did not receive the notice of the Application, or the notices of the applicant’s two subsequent motions. He also states that he did not receive copies of the court orders made at various steps in the proceeding, including the two impugned orders of Justice Juginovic and Justice Fowler Byrne. He asserts that he was not aware that court proceedings were underway requiring his participation until May 8, 2026.
[30] I reject this evidence as not credible. There is overwhelming evidence that the applicant complied with the court’s orders on how to effect substituted service of documents. Commonsense dictates that the documents would have come to the respondent’s attention.
[31] On several occasions, the applicant’s sister or the applicant’s real estate agent placed court documents in the respondent’s mailbox at the matrimonial home. The mailbox is situated in plain view next to the front door of the residence. Mr. Spaulding deposed that he “stood the letter up in the mailbox so it was clear that something was in the mailbox.” Ms. Maksymchuk took a photo of the envelope that she delivered. The photographic evidence shows that the envelope was visible in the mailbox to anyone who approached the front entrance. The envelope was larger than a standard letter-size envelope and therefore protruded from the mailbox. It would not have been necessary to open the mailbox to see that there was an envelope inside.
[32] Moreover, on more than one occasion, Ms. Maksymchuk affixed court documents to the front door of the matrimonial home with tape, in a manner that secured them to the door, such that time and effort would be required to remove the tape. They were secured in a location that made them obvious to any sighted person who exited the residence through the front door or who approached the front door from the outside. Duplicate copies of those documents were mailed to the matrimonial home address.
[33] While it is possible that mail can be misdirected or lost, it strains credulity to suggest that none of the correspondence or documents came to the respondent’s attention despite these multiple methods of service.
[34] There is no evidence that the respondent was residing elsewhere, or that he was away from home for an extended period. He lived at the residence continuously throughout the relevant time. He was not bedridden or immobile. He came and went. Yet he asserts that he never received any of the mail, never noticed any envelopes in his mailbox, and never observed any notices posted with tape to his front door. His evidence is implausible, defies logic, and is therefore not worthy of belief.
[35] Furthermore, the respondent’s credibility is undermined because his evidence is inconsistent with Mr. Spaulding’s independent evidence. Mr. Spaulding deposed that he attempted to obtain the respondent’s consent to the sale of the property by placing correspondence in his mailbox, with a copy of Justice Juginovic’s order. Mr. Spaulding states that he also phoned the respondent and left a voicemail message, asking the respondent to call him. He says he subsequently received a voicemail message from the respondent on February 11, 2026, requesting a call back. However, he was not able to reach the respondent by telephone, despite making multiple attempts.
[36] The respondent acknowledges that he received a phone call from a real estate agent regarding the sale of the matrimonial home. He asserts that he was confused because he had not listed the property for sale. He states in his affidavit that, “during the conversation” with the real estate agent, he advised the agent that he had no knowledge of any court order authorizing the sale of the property and he questioned why he “had not received a copy directly from the Court.” He asserts that he genuinely believed there may have been some misunderstanding or mistake because he was unaware of any court proceeding.
[37] Later in his affidavit, the respondent elaborates further. He states,
During my conversation with the real estate agent, I specifically advised that I was unaware of any Court order affecting my rights to the property. The real estate agent informed me that he had received a copy of an order relating to the property. I questioned why I had not personally received a copy of the order directly from the Court or through proper service. (sic) was confused and concerned because I had never previously been involved in a legal process of this nature and did not understand how a third party could possess Court documents that I myself had never seen. Because I had not received any official documentation from the Court, I did not understand that a legally enforceable order had allegedly been made requiring me to leave my home. In the circumstances, I genuinely believed that the situation may have involved a misunderstanding or miscommunication.
[38] I reject this evidence as not credible. Had the respondent conversed with Mr. Spaulding about the court ordered sale of the matrimonial home, he could not reasonably have been left with the impression that the agent was simply mistaken. I accept Mr. Spaulding’s independent evidence that no such conversation took place.
[39] I note, however, that the respondent claims he asked Mr. Spaulding why he had not received a copy of Justice Juginovic’s order “directly from the court.” This implies that he received the copy of the order that Mr. Spaulding placed in his mailbox. Indeed, at one point in his reply affidavit, the respondent admits that he “receive[d] communication from a real estate agent regarding the possible listing and sale of the matrimonial home.” I infer that he is referring to Mr. Spaulding’s letter, which was accompanied by a copy of Justice Juginovic’s order.
[40] I deduce that the respondent likely became aware that the real estate agent had a copy of Justice Juginovic’s order not because he spoke to the agent on the telephone, but rather because he received and opened the envelope delivered by Mr. Spaulding. He may have done so after he initially returned Mr. Spaulding’s call and left a voicemail message, which could explain why he subsequently avoided speaking with Mr. Spaulding.
[41] For all the above reasons, I reject the respondent’s evidence that he did not receive copies of the motion materials and impugned court orders. I find that he received proper notice of both motions and chose to ignore them. Rule 19(25)(d) therefore does not apply.
[42] Rule 19(25)(e) also not does not apply because the respondent has not furnished a satisfactory reason for why he was unable to be present when the two impugned motions were argued. The only relevant evidence adduced by him is the following statement: “Prior to becoming aware of the orders, I was dealing with personal reasons and ongoing health concerns, which affected my ability to become aware of and respond to the proceedings sooner.” This vague statement does not provide a satisfactory explanation for why the respondent was not able to attend court when both motions were heard.
[43] Had I concluded that Rule 19(25)(e) applies, I would nevertheless of have dismissed this motion based on the factors set out in Barranoch v. Abitbol, for the following reasons:
a. The respondent received a copy of Justice Juginovic’s order when it was delivered to his mailbox by Mr. Spaulding in early February 2026, yet he took no steps to set aside that order until May 11, 2026.
b. There is no plausible explanation for the respondent’s failure to respond to both motions and attend the motion hearings.
c. The respondent does not have an arguable defence to the first motion for sale of the matrimonial home. The parties are joint owners of the property and the applicant is therefore entitled to an order for partition and sale.
d. The respondent’s defence to the second motion for exclusive possession of the matrimonial home is weak. The photos taken of the interior of the home upon his eviction show a serious hoarding situation. The property is not in a saleable condition, and it will require professional cleaning before it can be listed. It needs to be vacated so that it can be decluttered, emptied and cleaned. Failure to address the hoarding situation could result in depletion of the property’s value. The applicant therefore has a strong case for exclusive possession of the home pending its sale.
e. While dismissal of the motion to set aside the order respecting possession and occupancy of the matrimonial home does prejudice the respondent, who is forced to find alternate accommodations, it does not prejudice his right or ability to purchase the applicant’s interest in the matrimonial home and thereby retain ownership of the property (provided that he has the financial means to do so).
f. Granting the motion to set aside the orders respecting possession and sale of the matrimonial home will prejudice the applicant’s right to access her share of the substantial equity in the home, which has already been delayed by over a year. Allowing the motion would also jeopardize the applicant’s ability to maximize and preserve the value of this significant asset, because of the filthy and cluttered condition in which the respondent has maintained the property.
g. Granting the motion would condone and reward the respondent’s unreasonable conduct in this case, which would be contrary to the proper administration of justice.
CONCLUSIONs and orders
[44] The respondent’s motion to stay or set aside the orders of Justice Juginovic and Justice Fowler Byrne is dismissed.
[45] On consent, I order that the respondent shall have 30 days from today’s date to file his Answer and supporting documentation, including a sworn Financial Statement.
[46] As soon as possible and by no later than May 17, 2026, the respondent shall be granted access to the matrimonial home to retrieve his medications and medical devices, his clothing and shoes, computers and modems, his financial papers, and any mail addressed to him. He shall not remove any other items unless he obtains the applicant’s prior written consent. The applicant’s sister, Ms. Maksymchuk, shall be present when he attends the property. He will be given up to eight hours to retrieve these items. He may be accompanied by a friend or professional mover to assist him.
[47] The applicant shall itemize and photograph any remaining objects of value in the home and provide a complete list of contents to the respondent as soon as practicable.
[48] While the applicant is preparing the itemized list on contents of the matrimonial home, if the respondent requires any furniture (e.g. bed) or other items of daily living (e.g., dishes, pots, cutlery, toiletries, etc.) in order to furnish new accommodations, he shall provide the applicant with a list of the items he wants to remove. If there is no dispute that the items in question belong to the respondent, then the applicant shall grant him access to the property, on 24 hours written notice, to retrieve those specific items. The applicant’s sister (or another individual designated by the applicant) shall be present when he attends the property. He shall be granted up to 8 hours on a single day to retrieve the identified items. He may be accompanied by friends or professional movers to assist him.
[49] Once the applicant completes and delivers the itemized list of contents of the matrimonial home, the parties shall attempt to agree upon which items are to be retained by the respondent and which items are to be retained by the applicant within 15 days of the list being delivered to the respondent. If the respondent believes that items are missing from the list, he shall identify the missing items in writing within 3 days of receiving the list.
[50] If after 15 days (from delivery of the itemized list), the parties are unable to agree on the property to be retained by each of them, or if there is a dispute about missing items, then they may jointly schedule a settlement conference with a Dispute Resolution Officer to address these issues (by using the Calendly website). If no resolution is reached or no DRO conference takes place within 2 weeks, either party may bring a motion to resolve the disputes.
[51] After the parties reach agreement on the items to be retained by each of them (or a court orders the items to be retained by each of them), the applicant may remove the items belonging to her. Within 10 days of the agreement being reached, the respondent shall attend the property to retrieve the items belonging to him. The respondent must provide 24 hours written notice to the applicant of when he intends to remove his belongings. He shall then be given access to the home for up to five consecutive days, for up to 8 hours each day. The applicant’s sister or another person designated by the applicant shall be present when he attends. He may be accompanied by friends or professional movers to assist him.
[52] If the respondent does not retrieve his property in a timely way, in accordance with the preceding paragraph, the applicant may dispose of it.
[53] The applicant intends to retain a professional junk removal service to declutter the home after the parties have each removed their respective belongings. The applicant also intends to hire professional cleaners. The cost of those services shall be deemed a post-separation adjustment to be assessed and apportioned by the trial judge.
COSTS
[54] For reasons delivered orally on May 15, 2026, the respondent is ordered to pay the applicant full indemnity costs of this motion in the amount of $2,090. These costs must be paid within 30 days of the date of this Endorsement.
next step
[55] The parties shall attend a Case Conference as soon as practicable after the respondent delivers his Answer and sworn Financial Statement. They have agreed to attend a Case Conference before a Dispute Resolution Officer (instead of a Superior Court Judge) to expedite the next step in the proceeding. Once counsel agree upon a date, either party may book the conference directly using the Calendly website.
Released: May 19, 2026
____________________
Justice C. Petersen