COURT FILE NO.: FS-22-0250-001 DATE: 2023-07-06
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Gordon Dale Stewart, Applicant v. Crystal Wheeler-Stewart, Respondent
HEARD: June 29, 2023
BEFORE: Acting Regional Senior Justice T. Nieckarz
COUNSEL: Self-represented Applicant S. Ettinger, for the Respondent
E N D O R S E M E N T
[1] This motion was scheduled to be heard in motions court today, by Zoom. Mr. Ettinger appearing for Ms. Wheeler (who also appeared), and Mr. Stewart appearing for himself. The Director of the Family Responsibility Office was served with the motion but did not appear. Correspondence filed by Mr. Ettinger from Ms. Costa (on behalf of FRO) confirms FRO’s consent to the continuation of the May 25, 2023, order made by me staying enforcement of the support order on an interim/temporary basis. Otherwise, FRO takes no position as to the requested relief of termination of the support order.
[2] Mr. Stewart seeks a further adjournment so that he may obtain legal advice and consider his position. This is the second return date of a motion served in May. This matter was adjourned by me on May 25, 2023, to permit Mr. Stewart an opportunity to seek legal advice and file responding material.
[3] Ms. Wheeler would like to proceed with the motion. It appears that Mr. Stewart did not take any real steps to obtain counsel until this week. Mr. Ettinger notes that his client has been without support for a considerable period of time already, and has been paying support for children in her care since 2021. At a minimum, Ms. Wheeler seeks a continuation of my May 25th order and the payment of child support by Mr. Stewart pending the return date of the motion. Ms. Wheeler is content for any order to be without prejudice to the positions of the parties.
[4] As I explained to the parties, I am prepared to give Mr. Stewart a further opportunity to obtain legal advice. It is my opinion that he would benefit considerably from some advice. He also has a number of issues and concerns of his own, but the court does not have any motion or evidence from him to be able to assess or address these concerns. Mr. Stewart is advised to obtain legal advice as soon as possible, and he should bring a copy of this endorsement to the lawyer advising him, along with the May 25th endorsement and order, Ms. Wheeler’s motion and affidavit. It is crucial that Mr. Stewart do this as soon as possible as no further adjournments will be granted unless it is on consent of both parties. In the event Mr. Stewart is representing himself at the return of the motion on September 7, 2023, I have once again included below some links to information he may find useful about the court process, but this information is not a substitute for proper legal advice. Mr. Stewart also experienced issues with his internet connection and audio during this hearing, which could negatively impact his ability to fully participate in a Zoom proceeding. He may wish to consider calling in by Zoom video on his computer and also calling in by telephone to ensure that his audio is not affected by an unstable internet connection.
[5] At the contested adjournment argument today, Mr. Stewart was content to agree to terminate child support on a final basis, without prejudice to the rights of either party to argue a retroactive effective date at a later date. With respect to his ability to earn income, Mr. Stewart acknowledged that he was working and that there was no information he was aware of that would materially change the income he reported on his 2022 income tax return of $45,258. Mr. Stewart did dispute payment of child support on the basis of the costs associated with his everyday living expenses and the costs associated with exercising parenting time for his children. Mr. Stewart acknowledged that there is no parenting time planned during the summer (he alleges Ms. Wheeler is preventing it) and the court has no evidence to allow a s. 10 Guidelines undue hardship determination. This order is made without prejudice to Mr. Stewart’s ability to argue undue hardship on the basis of a complete evidentiary record, retroactive to the date of commencement of payment of child support by him.
[6] It is ordered that:
a. The motion is adjourned to motions court on September 7, 2023, at 10:00 a.m. to be heard by Zoom. b. This date is peremptory on Mr. Stewart, meaning that no further adjournments shall be granted except with the consent of Ms. Wheeler. c. Payment of child support by Ms. Wheeler, pursuant to paragraph 21 of the Order of the Honourable Mr. Justice Lemon, dated March 31, 2020, is terminated on a final basis effective immediately, without prejudice to Ms. Wheeler’s argument that it should be terminated retroactive to October 1, 2021. d. Pursuant to s. 56(2) of the Family Responsibility Office Support Arrears Enforcement Act, the Director of the Family Responsibility Office is directed to continue to hold any support monies collected from Ms. Wheeler pursuant to the Order of Justice Lemon, and not pay those monies to Mr. Stewart, pending the disposition of this motion. e. Commencing July 1, 2023 and continuing on the 1st day of each month thereafter until varied by a subsequent order, Mr. Stewart shall pay to Ms. Wheeler temporary child support for the children, Lincoln Stewart (born December 20, 2014) and Finley Stewart, born October 26, 2016, in the amount of $661.00 per month based on an estimated annual income of $45,258 for Mr. Stewart and the Child Support Guidelines. f. The commencement date and quantum of Mr. Stewart’s support obligation as ordered by me is without prejudice to the arguments of either party that a different amount of support is more appropriate and/or a different commencement date. g. Mr. Stewart shall serve on Mr. Ettinger by email, and file with the court his responding affidavit to the motion (if any) no later than August 17th, 2023, at 4:00 p.m. h. Ms. Wheeler’s reply materials (if any) shall be delivered no later than August 31, 2023, at 4:00 p.m. i. Both parties shall ensure that their materials are uploaded to Caselines no later than September 5th, 2023, at 4:00 p.m.. If Mr. Stewart is not able to upload his materials, he shall notify the court accordingly prior to September 5th so that the documents may still be brought to my attention for court on September 7th. j. Costs of today shall be determined by the judge hearing the motion. k. Mr. Ettinger shall not be required to obtain Mr. Stewart’s approval as to the form and content of this Order provided the Order is in accordance with this endorsement.
[7] The following resources may be of assistance:
Representing yourself in court (cjc-ccm.ca) Family Law - Steps to Justice.
“Original signed by” The Honourable Justice T.J. Nieckarz, Acting R.S.J.
Released: July 6, 2023