SUPERIOR COURT OF JUSTICE - ONTARIO

DATE: 20120528
DOCKET: FS-00-FA008868-FISA

RE: Cheryl Ann Jordan, Applicant

AND:

James Rupert Stewart, Respondent

BEFORE: Czutrin J.

COUNSEL:
John Legge , for the Applicant
Patrick Schmidt , for the Respondent

HEARD: May 24, 2012

ENDORSEMENT

[ 1 ] The narrow issue today relates to funds currently held by Respondent’s counsel representing disputed entitlement to Section 7 expenses for the child Jesse. The amount held is $11,328.11.

[ 2 ] This case is scheduled for trial to commence June 4, 2012 where the issue is the Respondent’s request to terminate child support for Jesse. If he is successful, there would be the possibility of a finding that he has overpaid child support well in excess of $11,328.11. It would appear that the Applicant is not in a position to repay the Respondent any overpayment based on her questioning.

[ 3 ] The Applicant’s counsel informed the Respondent’s counsel that at the commencement of the hearing, he will request, on behalf of the Applicant, that the Respondent’s motion to change be struck, stayed or dismissed for non-compliance with Paisley J.’s order of April 7, 2008, paragraph 4. The breach of the order was also referenced in the Applicant’s December 14, 2010 motion, brought after the Respondent’s motion to change that is now to be heard.

[ 4 ] The first affidavit of the Respondent, commencing this motion was dated October 28, 2010.

[ 5 ] Paisley J.’s order of April 7, 2008 provided, (on consent), pursuant to paragraph 4, “that in the event of a dispute regarding the payment of monthly child support or post-secondary costs, the Respondent shall nonetheless continue to pay the monthly child support and post-secondary costs until further order of the Court or written agreement of the parties …”

[ 6 ] Default of the payment of post-secondary costs was enforceable through the Family Responsibility Office (“FRO”).

[ 7 ] Paragraph 2 dealt with the extent of post-secondary education.

[ 8 ] The Respondent is seeking to terminate child support effective July 1, 2010, but has continued to pay the $5,000 per month, thus, if successful, he may have overpaid in excess of $100,000.

[ 9 ] The Respondent claims that even if he continues to have a child support obligation pursuant to his “guideline income” his expert evidence, will be that at minimum he has overpaid $56,850.

[ 10 ] On January 27, 2011, Applicant’s counsel wrote to the FRO “… I do not believe (arrears claimed by Applicant) ... should be reasonably subject to enforcement proceedings while the matter is before the … court on a Variation Proceeding.”

[ 11 ] The Respondent’s counsel offered to pay the $11,127.35 into the Applicant’s trust account pending a determination of the issues at trial, pay the said amount into court or continue to hold the funds in their trust account.

[ 12 ] The hearing needs to proceed as scheduled and I see no prejudice to the Applicant by the alternative proposals. I do see prejudice to the Respondent if he succeeds and cannot recover any overpayment.

[ 13 ] This motion could have been avoided.

[ 14 ] I find the Respondent’s position reasonable and fair.

[ 15 ] The funds may be held in trust by Respondent’s counsel pending outcome of the hearing.

[ 16 ] The Respondent is entitled to costs of $3,500, but it is not payable until the judgment given after the hearing.

[ 17 ] Therefore, the preliminary final issue re: the $11,328.11 is dealt with and the motion intended to be brought by the Applicant is dealt with by this endorsement.

Czutrin J.

Released: May 28, 2012