Court File and Parties
CITATION: Schwilgin v. Szivy, 2011 ONSC 5918
DIVISIONAL COURT FILE NO.: 10-DV-1630
DATE: 2011/10/13
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
VALIN, BELCH and RADY J.J.
BETWEEN:
LASZLO SCHWILGIN Applicant (Appellant in Appeal)
– and –
LORI ANNE SZIVY Respondent (Respondent in Appeal)
Allan T. Hirsch, for the Appellant
Robie S. Loomer, for the Respondent
HEARD: October 3, 2011
REASONS FOR JUDGMENT
RADY J.
[1] The applicant appeals from the decision of Métivier J. dated May 20, 2010 dismissing his motion to vary the consent order of Toscano-Roccamo J. of May 18, 2006. The respondent asks that the appeal be quashed or stayed. After three days of trial, and during a mid-trial settlement conference, the parties had settled the issues between them. Mr. Schwilgin consented to child support, based on an imputed income of $77,000, resulting in child support payable of $1,215. He also agreed to pay spousal support of $500 per month, which was reviewable after two years.
[2] Mr. Schwilgin first moved to vary that order in 2008 and his motion was dismissed by Roy J. During this first variation application, he proposed to pay $400 per month in total support.
[3] He then brought this motion in June 2009. Between that date and the date of hearing, he made an agreement with the Family Responsibility Office (“FRO”), which was attempting to enforce the final order, that he would pay $430 per month for child support. A refraining order was made.
[4] Before the date for hearing of the latest variation motion, Mr. Schwilgin retained counsel who sought an adjournment. This was granted by Métivier J., who also ordered that no new material could be filed by the applicant. The applicant had failed to meet an earlier court ordered disclosure deadline. She also ordered that he continue to pay the child support he had negotiated with FRO.
[5] After a hearing on the merits, the motion was dismissed with written reasons dated May 20, 2010.
[6] The applicant must demonstrate that the motions judge made a palpable and overriding error in her findings of fact or that she incorrectly applied the law: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235.
[7] We see no basis to interfere with Métivier J.’s decision. Her findings of fact regarding whether there was a material change of circumstance are amply supported by the record before her. Her application of the law to those facts is correct.
[8] At the time of the final order, Mr. Schwilgin said he had little or no income. He claimed that he was continually looking for employment. He had represented to the Canada Revenue Agency that he had no income. Yet he warranted to a mortgage lender in 2005 that he earned in excess of $130,000. In 2008, when renewing the mortgage on his home, he represented to a mortgage lender that his income exceeded $150,000. As the motions judge observed, nothing had changed.
[9] Métivier J. observed that Mr. Schwilgin was able to maintain a relatively comfortable lifestyle. She concluded that he has skills and training but is deliberately underemployed. She noted that he is engaged in a shell game in respect of his use of credit to finance his lifestyle. All of these conclusions are grounded in the evidence.
[10] On the issue of spousal support, while it is true that the motions judge did not refer to the respondent’s increase in earnings in her reasons, there was evidence before her, which was obviously accepted, that Ms. Szivy was obliged to work more hours once Mr. Schwilgin unilaterally decreased support payments to $400 per month. Her relative economic position was unchanged.
[11] The appeal is therefore dismissed with costs to the respondent of $5,000. It is unnecessary to deal with the respondent’s cross-motion.
Madam Justice H. Rady
I agree _____________________________
Mr. Justice G. Valin
I agree _____________________________
Mr. Justice D. Belch
Released: October 13, 2011
CITATION: Schwilgin v. Szivy, 2011 ONSC 5918
DIVISIONAL COURT FILE NO.: 10-DV-1630
DATE: 2011/10/13
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
VALIN, BELCH and RADY J.J.
BETWEEN:
LASZLO SCHWILGIN Applicant (Appellant in Appeal)
– and –
LORI ANNE SZIVY Respondent (Respondent in Appeal)
REASONS FOR JUDGMENT
Rady J.
Released: October 13, 2011