



COURT OF APPEAL FOR ONTARIO

CITATION: Jasinska v. Jasinski, 2016 ONCA
    993

DATE: 20161230

DOCKET: C62001

Sharpe, Lauwers and Miller JJ.A.

BETWEEN

Mariola Jasinska

Applicant (Respondent)

and

Piotr Jasinski

Respondent (Appellant)

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 respondents
    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 appellants 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 appellants 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.


