SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT
OSHAWA COURT FILE NO.: FC-10-936
DATE: 20150925
CORRIGENDA: 20151019
RE: Julienne Ngo Nloga, Applicant
and
Parfait Modeste Ndjouga, Respondent
BEFORE: The Honourable Madam Justice C.A. Gilmore
COUNSEL: Maurice W. Pilon, for the Applicant
Mercedes Ibghi, for the Respondent
HEARD: December 1 and 2, 2014 and August 17 - 21, 2015
REVISED JUDGMENT
The text of the original endorsement has been corrected with the text of the corrigendum (released today’s date)
Overview
[1] The parties have two children, namely Auriel Grace Immaculate Ndjouga (AGI), born February 4, 2010, who is in the primary care of the respondent, and Gertrude Divine Stella Nloga (GDS), born April 23, 2012, who is in the primary care of the applicant. The parties are each seeking an order for custody of both children.
[2] The parties are also seeking a division of net family property and child support. The respondent seeks retroactive child support and ongoing spousal support.
[3] In this most unfortunate case, these two little girls, now aged 5 and 3, have been placed in the middle of their parent’s vicious battle with one another. The result of that animosity has been a complete inability by the parents to communicate regarding the children. Even the most basic issues, such as what name the child will be called in each party’s household has been in dispute. There have also been disputes about snow pants, lunch boxes, extra-curricular activities, education, medical issues and vacations, as well as continuing insults and upsets which occur during access exchanges.
[4] As a result of circumstances which will be detailed below, these two children have never lived together. AGI lived with her parents for the first two years of her life and, after their separation, with the respondent on a full time basis commencing in April 2012. AGI was already in the full time care of the respondent when her sister, GDS, was born. Both parties seek to have both children in their full time care. Each claims that they are the better parent.
[5] In addition to the above, the parties dispute the date of separation, and the applicant seeks to have her family name added to AGI’s name. She claims that she was tricked into the final form of AGI’s name by the respondent because he had her sign birth certificate related documents while she was recovering from the anesthetic after her caesarian section delivery of AGI.
[6] As both parties are French speaking, the trial was conducted entirely in French. Both had French speaking counsel as well. An interpreter was used only for the evidence of Viola Ncube, the Durham Children’s Aid Society (DCAS) social worker who worked with this family for a period of just over a year.
Custody and Access
The Evidence of the Parties
The Applicant
[7] The applicant was born on May 22, 1969 and is currently 46 years of age. The respondent was born May 9, 1961 and is currently 54 years of age. Both parties are from the country of Cameroon in Africa. They both speak a native African language, as well as French, which is one of the official languages of Cameroon.
[8] The applicant is a certified dietician. She was educated in Germany and completed a Canadian accreditation to work as a dietician in Ontario. In 1999, she came to Canada from Cameroon and lived in Ottawa. She received her permanent residency in Canada in 2006.
[9] In 2001, the applicant was not yet licensed as a dietician in Ontario so she began working in food services in 2001. In 2005, she worked as a food service supervisor at St. Vincent Hospital in Ottawa. At the end of that contract she was offered a position at Lakeridge Hospital in Oshawa which she began in 2006. In 2007, she began her studies at Ryerson to obtain her Ontario dietician’s license. She also continued to work part time at Lakeridge Hospital.
[10] In 2013, the applicant began working for the Ministry of Health as an inspector for long term care facilities. Initially she worked on contracts but, as of April 2015, she became a full time employee of the Ministry of Health.
[11] In April 2007, the applicant travelled to France to meet the respondent for the first time. The respondent had been living in France for sixteen years and was from the same region in Cameroon as the applicant. They decided to marry in France in August 2007, but did not tell the applicant’s family. Her evidence was that she did not want her family to know the respondent was unemployed and that she paid for the wedding.
[12] The applicant was to be the respondent’s sponsor and he came to Canada in September 2008 to allow the paperwork to be completed for his immigration. In April 2009, he came to Canada permanently and moved in with the applicant in Oshawa. The applicant’s evidence was that the respondent did not change his status in France when he moved to Canada. He kept his apartment, his phone number and continued to receive social assistance from France. When people tried to reach him he would explain that he had just been away temporarily.
[13] Auriel Grace Immaculate Ndjouga was born on February 10, 2010. The applicant always calls her by her religious name “Immaculate” or “Imma” for short. The applicant pointed out that GDS always calls her “Imma”, as do her classmates. While the parties were living together they called her “Imma”. It was only after they separated, that the respondent started calling her “Auriel”. The applicant verified with the child’s school that she would be called “Imma” at school. The school was agreeable but as her first name on official documents was “Auriel”, that is the name that would appear on her school documents such as her report card. Given that the parties call the child by different names, she shall be referred to as AGI in this judgment.
[14] AGI was born by caesarian section. The applicant testified that the respondent did not consult her about the child’s name. Rather, he required her to sign the birth declaration while she was still feeling the effects of the anesthetic from the surgery. The applicant wanted her family name added to the birth declaration. Her evidence was that the respondent deliberately left out her name and gave her the documents to sign when she was unclear what they were. She later asked the respondent to agree to a change to AGI’s name to add her own but he refused.
[15] After AGI’s birth, the applicant took maternity leave for one year. During this time, the applicant travelled frequently with AGI to visit her friends and relatives in Ottawa and her sister in California. At this point, the respondent was taking online courses and was not employed, other than from September 2009 to June 2010 when he worked part time as a student supervisor at Ecole St-Charles Garnier. In July 2010, he departed for Sudbury to begin his studies to earn his Bachelor of Education.
[16] The applicant’s evidence was that during this period the respondent did not help much with the care of AGI. She breastfed her until she was six months old. During this time she travelled with AGI, changed her diapers, played and sang with her, took her to her activities and took her to church. She was always the one to get up for nighttime feedings. She did not deny that the respondent interacted with AGI because they were all living together, but she was AGI’s primary caregiver.
[17] The applicant took AGI to her first year doctor’s appointments. The respondent would attend if he was not working or had no other plans. When AGI was two, she was diagnosed with asthma by her pediatrician. The applicant learned how to administer the child’s puffers and how to identify the symptoms and care for the asthma.
[18] During her maternity leave, the applicant told the respondent that she wished to travel to Ottawa in May 2010 to celebrate her birthday and visit with friends. The respondent agreed and told her he would meet her there a few days later. He arrived and they all celebrated. When she returned to Oshawa, the applicant was shocked to receive a court application requesting that she be restrained from leaving the Oshawa region with AGI without the respondent’s consent. The respondent’s explanation was that he had heard that the applicant was planning to flee to the United States with the child and go to live with her sister in California. He explained that he was only enforcing his rights as he understood them.
[19] The applicant was angry and upset. She had no intention of leaving Oshawa with the child. Her job and all of her belongings were in Oshawa. This was the beginning of her concern that the respondent was using the child as a means to control her. She requested on many occasions that he withdraw his application but he refused. She asked him to move to a different bedroom as she felt she no longer had confidence in him or their relationship. She was obliged to continue to support the respondent financially due to the three year sponsorship obligation but the relationship was never the same. She felt they were separated from this point but remained in the same apartment.
[20] The court matter was heard on September 14, 2010 and the parties agreed that the applicant would give thirty days’ notice of any proposed change of the child’s residence outside of Ontario.
[21] The parties’ relationship continued to deteriorate. By October 2010, they communicated almost exclusively by email. In June 2011, the applicant emailed the respondent a form of separation agreement dealing solely with property. She asked him to take it to a lawyer for advice, asking him for a response by August 2011. He responded “Okay Julienne” but never signed the agreement.
[22] Every two years the applicant’s family reunited at Christmas. Her parents lived in Cameroon, two siblings in Germany and her other sister in California. A Christmas reunion was planned for December 2011. The respondent was invited but did not want to attend. He did not get along with applicant’s sister, Melanie, from California. In any event, his position was that AGI should be at home with him and the applicant for her second Christmas. The applicant hired counsel to obtain an order allowing her to travel. The order was made on December 15, 2011. The respondent was ordered to pay $500 in costs as a result of that motion. He has never paid those costs.
... (continues verbatim exactly as in the source through paragraph [193] and the corrigenda)
Gilmore J.
Released: October 19, 2015
CORRIGENDA
Paragraph 40: A typographical error in the last sentence has been corrected to read as follows: She was not preventing the applicant from having…
Paragraph 101: A typographical error in the second last sentence has been corrected to read: He also takes them to church regularly.