Poplawski v. Poplawski, 2016 ONSC 3963

Citation and Court Information

CITATION: Poplawski v. Poplawski, 2016 ONSC 3963

DIVISIONAL COURT FILE NO.: 214/16 DATE: 20160609

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

SACHS, DITOMASO AND STEWART JJ.

BETWEEN:

LEON POPLAWSKI Appellant/Respondent

– and –

KRYSTYNA POPLAWSKI Respondent/Applicant

In Person Joseph J. Sheridan

HEARD at Toronto: June 9, 2016

Oral Reasons for Judgment

SACHS J. (ORALLY)

1This is an appeal from the decision of Chiappetta J. dated October 8, 2015, dismissing the appellant’s motion to vary the final order of Mesbur J. dated September 19, 2009 (“the Mesbur Order”), which was a consent order. The motion judge found that the appellant had not met his onus of establishing a material change in circumstances since the making of the Mesbur Order. On this appeal, the appellant makes three arguments:

(i) he had inadequate legal representation;

(ii) the motion judge erred in finding that Natalia (who is over the age of 18) was a child of the marriage and entitled to ongoing support; and

(iii) the motion judge erred in failing to find that the Mesbur Order should be varied by reason of his medical condition.

Ineffective Legal Representation

2We were presented with no evidence that would justify a finding that this appeal should be allowed on the basis of ineffective legal representation.

Child of the Marriage

3On this issue the motion judge made the following finding:

The respondent further submits that Natalia is 18 years old and “she should work and support herself.” The evidentiary record is such to find that Natalia remains fully dependent. She lives at home with the applicant and is repeating some high school courses to prepare for post-secondary education. I conclude therefore that she remains a child of the marriage, unable to withdraw from her parents’ support.

4With leave, the appellant filed before us further evidence that he argues indicates that the motion judge made a palpable and overriding error when she found that Natalia was taking courses to complete her high school degree and prepare for her post-secondary education. We have reviewed this evidence and find that it does not reach the necessary threshold to establish a palpable and overriding error on the part of the motion judge. While the records are far from clear, they do suggest that Natalia was enrolled as a part-time student at Monsignor Fraser College in the fall of 2015 and that she is still enrolled in a course there. Further, we have no evidence before us that would suggest that Natalia no longer lives with her mother, or that she is now in a position to withdraw from her parents’ support. Thus, we do not give effect to this ground of appeal.

The Appellant’s Medical Condition

5The appellant claims that he has ongoing health issues that prevent him from working, a claim that the respondent states the appellant has been making throughout these proceedings. The appellant was specifically advised and ordered to provide sufficient evidence of his medical claims. Among other things, on March 23, 2015, Stevenson J. made a detailed consent order for the disclosure of the appellant’s medical records. At the motion on October 8, 2015, Chiappetta J. referred to Stevenson J.’s consent order and indicated with respect to the medical disclosure:

Despite Her Honour’s efforts no such evidence is before me. Attached to his factum, and not as an exhibit to an affidavit, is a 3 line letter from a Dr. Mary Slusarczyk-Pietrazek, M.D., who writes on September 2, 2015, “patient is not able to work in his present physical work…” This three-lined letter fails to establish the premise upon which the respondent seeks to change his child support obligations as ordered.

6Further, Chiappetta J. indicates:

The respondent has chosen, in the face of judicial guidance, not to provide the Court with medical evidence sufficient to demonstrate his statement that he is unable to work and earn an income by reason of deteriorating health.

7For these reasons the motion judge found that the appellant had not met his onus of establishing a material change in his medical condition that would justify a variation of the Mesbur Order. We see no error in either the motion judge’s reasoning or in her conclusion on this issue.

Conclusion

8For these reasons the appeal is dismissed.

Costs

9I have endorsed the back of the Record, “This appeal is dismissed for reasons given orally by Sachs J. As the successful party, the respondent is entitled to her partial indemnity costs relating to this appeal, which we fix in the amount of $5,000 all inclusive, including the attendance before the Court of Appeal.”

___________________________ SACHS J.