ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-11-0284
DATE: 2012-06-13
B E T W E E N:
MUSOLE BUHENDWA,
Self-represented
Applicant
- and -
RENEE LYNE GIRARD,
Self-represented
Respondent
HEARD: June 11, 2012, at Thunder Bay, Ontario
Mr. Justice J.S. Fregeau
Reasons On Appeal
INTRODUCTION
[ 1 ] The appellant appeals from the Final Order of the Honourable Justice M. Bode of the Ontario Court of Justice, Thunder Bay, Ontario dated August 9, 2011. This order requires the appellant to pay to the respondent child support for the child Magali Ismaelle Marie-Angelique Girard, born […], 2008. The order also contains various ancillary provisions normally present in a Final Order for child support.
[ 2 ] The appellant asks that the order be set aside and a new trial ordered. The appellant also asks for an order, should the appeal be allowed, compelling the respondent to provide to him “genotype blood group types” of her and the child, presumably for some type of paternity testing to be performed.
[ 3 ] The grounds of appeal raised by the appellant in his Notice of Appeal, and clarified in oral argument, are two-fold:
The respondent filed certain documentation at trial that the appellant did not receive prior notice of. The appellant submits that he was prejudiced as a result of having to analyze this documentation without adequate time to do so;
The respondent submits that the learned trial judge did not have jurisdiction to deal with the issues before him because the case involved fraud on the part of the respondent. The appellant submits that the matter should properly have been before a criminal court, not a family court.
BACKGROUND
[ 4 ] The applicant and respondent met through an internet dating site. The appellant submits that the purpose of all meetings between he and the respondent was for “hookup on weekends” when both were in town and free. I take judicial notice of the fact that this term was being used to describe a strictly physical, as opposed to emotional relationship. The respondent did not dispute the suggested nature of the relationship.
[ 5 ] The appellant submits that in March 2007, the respondent suggested that she move to Toronto for the purpose of residing with the appellant and starting a family. The appellant submits that he categorically rejected this suggestion.
[ 6 ] The appellant submits that the respondent was comfortable with his position. The two continued to meet and, presumably, enjoy sexual relations. On June 3, 2007, the appellant submits that he was contacted by the respondent by telephone. The respondent advised the appellant that she was pregnant with his child and that she intended to carry the child to term. The child was born on […], 2008.
Discussion
[ 7 ] Pursuant to Rule 38(4)(a) of the Family Law Rules , the appellant’s appeal of the Final Order of the learned trial judge is properly brought to this court. Pursuant to Rule 38(17) 4 and 5, the appellant’s appeal record shall contain a transcript of the oral evidence from trial and any other material that was before the court appealed from and that is necessary for the appeal. Neither the transcript of the oral evidence from trial nor any exhibits were before this court on the hearing of the appeal. For reasons that follow, I do not feel that either is necessary to dispose of the appeal.
[ 8 ] During oral argument of this appeal, the appellant submitted that documents filed by the respondent at trial were not provided to him in advance of the trial. The appellant submitted that he did not have an opportunity to analyze this documentation in order to effectively cross examine the respondent on the contents of it.
[ 9 ] The documents in question were copies airline receipts and hotel receipts which the respondent filed to help establish that she and the appellant were together at the approximate time of conception.
[ 10 ] The appellant, at the hearing of the appeal, was specifically asked if he had requested an adjournment of the trial in order to review this documentation and to prepare for cross- examination. The appellant conceded that he had not asked for such an adjournment at trial.
[ 11 ] I dismiss this ground of appeal. The documentation referred to by the appellant was not complex. If he sincerely wished to cross-examine the respondent on it at trial, he could have, and did not, ask for a short adjournment in order to prepare. I am not prepared to grant an appeal and order a new trial when the appellant did not object to the admission of this material at trial or request an adjournment to properly prepare.
[ 12 ] The appellant also acknowledged that he had, prior to trial, declined to proceed with D.N.A. paternity testing, despite the respondent offering to do so on three separate occasions.
[ 13 ] The second ground of appeal is also without merit. The essence of the appellant’s submission was that the respondent, after having accepted the appellant’s position that he did not want to have children with her, engaged in sexual activity with him and allowed herself to become pregnant.
[ 14 ] The appellant submits that, given these facts, the Ontario Court of Justice was without jurisdiction to hear the respondent’s application for child support. Rather, the appellant suggested that the learned trial judge should have stayed proceedings in family court and referred the matter to a court of criminal jurisdiction to determine if some form of criminal fraud or criminal entrapment had occurred.
[ 15 ] The learned trial judge correctly declined to do so. The learned trial judge was satisfied that paternity had been established. The learned trial judge was then acting within his jurisdiction in ordering child support and in making the ancillary orders he did. He was without jurisdiction to stay proceedings and/or to transfer proceedings to a criminal court to review the circumstances surrounding the respondent’s conception of the appellant’s child.
Conclusion
[ 16 ] The appeal is dismissed. In the circumstances, I find that the respondent is entitled to her costs of the appeal which I fix at $500.00, payable by the appellant to the respondent forthwith.
_______ ”original signed by”_ ___
The Hon. Mr. Justice J.S. Fregeau
Released: June 13, 2012
COURT FILE NO.: FS-11-0284
DATE: 2012-06-13
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: MUSOLE BUHENDWA Applicant - and – RENEE LYNE GIRARD Respondent REASONS ON APPEAL Fregeau J.
Released: June 13, 2012
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