Fraser v. Lewandowski, (1999) 93 O.T.C. 325 (GDM)

• Court: Ontario Court of Justice General Division (Canada)
• Case Date: April 14, 1999
• Jurisdiction: Ontario
• Citations: (1999), 93 O.T.C. 325 (GDM)

Fraser v. Lewandowski (1999), 93 O.T.C. 325 (GDM)

MLB headnote and full text

Temp. Cite: [1999] O.T.C. TBEd. MY.017

Carl Alexander Fraser (applicant) v. Sheryl Anne Lewandowski (respondent)

(File No. 99-GD-45888)

Indexed As: Fraser v. Lewandowski

Ontario Court of Justice

General Division

Nolan, Master

April 23, 1999.

Summary:

A father brought a motion under s. 28(2) of the Family Responsibility and Support Arrears Enforcement Act to suspend the operation of a support deduction order deemed to have been made under s. 21(1)(a) of the Act. The motion was made pending the father's application for a declaration that his son was no longer a "child of the marriage" under the Divorce Act and an order terminating support. Section 28(3) of the Act empowered the court to suspend a support deduction order only if requiring support payments would be unconscionable. Section 28(5) provided that the fact that there existed grounds to vary a support order did not constitute unconscionability for the purposes of s. 28(3). The father submitted that the court had jurisdiction to suspend the order where he did not seek variation, but termination of support.

A Master of the Ontario Court (General Division) held that a suspension was not warranted absent a finding of unconscionability. It was not clear that the father would be successful in having support terminated. It would not be unconscionable for the father to continue paying support pending the determination of his application.

Family Law - Topic 4051

Divorce - Corollary relief - Maintenance - Enforcement - Suspension of enforcement - See paragraphs 1 to 22.

Cases Noticed:

Johnston v. Johnston (1997), 86 O.T.C. 18 (Gen. Div. Master), refd to. [para. 10].

Martell v. Height (1994), 130 N.S.R.(2d) 318; 367 A.P.R. 318 (C.A.), refd to. [para. 12].

McAdam v. McAdam (1994), 98 Man.R.(2d) 109 (Q.B.), refd to. [para. 13].

Lackie v. Lackie, [1998] O.T.C. Uned. 204 (Gen. Div.), refd to. [para. 14].

Barbeau v. Barbeau (1998), 75 O.T.C. 335 (Gen. Div.), refd to. [para. 15].

Statutes Noticed:

Family Responsibility and Support Arrears Enforcement Act, S.O. 1996, c. 31, sect. 28(3)(a), sect. 28(5) [para. 8].

Counsel:

Ian R. Fisher, for the applicant;

Tamara Stomp, for the respondent;

Wayne J. Beneteau, for the Director, Family Responsibility.

This motion was heard on April 14, 1999, at Windsor, Ontario, before Nolan, Master, of the Ontario Court (General Division), who delivered the following judgment on April 23, 1999.