Court File and Parties

COURT FILE NO.: FC-12-912-5 DATE: 2019/07/05 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Kimberly Stewart, Applicant AND: William Ndze Fuhgeh, Respondent

COURT FILE NO.: FC-17-361 DATE: 2019/07/05

RE: Marie Marielle Edith Bernard, Applicant AND: William Ndze Fuhgeh, Respondent

BEFORE: J. Mackinnon J.

COUNSEL: Applicant Self-Represented Respondent Self-Represented

HEARD: July 2, 2019

Endorsement

[1] Mr. Fuhgeh is the moving party, seeking an order for without prejudice access in each case, to his sons, Joshua and William, on an unsupervised basis with exchanges to take place at their school or mutually agreed location but with no contact between the parents, and video communication three times per week. For reasons that follow both motions are dismissed, with costs payable to each responding party.

Procedural History: Joshua

[2] Joshua was born February 14, 2012 to Mr. Fuhgeh and Ms. Stewart. He is now seven years old. He has always resided with his mother.

[3] Litigation between the parents commenced in 2012. There were many appearances and orders made before Robertson J. made a final order on consent on May 8, 2013. She awarded sole custody to the mother and alternate weekend access to the father, together with Wednesday evening visits. Despite the final order, various motions for temporary orders continued to be brought until a Motion to Change her order was heard on January 20, 2014. That resulted in a consent final order by Kershman J. This order permitted Mr. Fuhgeh to have Joshua with him for three weekends each month and for the Sunday of the fourth weekend.

[4] In August 2017, Mr. Fuhgeh commenced a Motion to Change the Kershman order. He withdrew this Motion in November prior to a case conference that was scheduled for November 27, 2017. On that date Audet J. noted that given Ms. Stewart’s wish to assert a claim to vary the access afforded to Mr. Fuhgeh, she could do so by filing her own Motion to Change. Audet J. adjourned Ms. Stewart’s claim for costs in light of the withdrawal to December 18, 2017 and allowed Ms. Stewart until December 14, 2017 to file her own motion material. Ms. Stewart served her Motion to Change access on Mr. Fuhgeh on December 5. Mr. Fuhgeh did not appear on December 18, but sent a confirmation form stating he did not intend to participate in the proceeding and did intend to terminate his access to Joshua. Audet J. proceeded to make an “interim interim” order based on Ms. Stewart’s materials that the father’s access would be supervised access in the mother’s discretion and the child’s best interests.

[5] This is the last order made with respect to Mr. Fuhgeh’s access to Joshua. He has not sought to exercise access pursuant to the order and has in fact not seen Joshua since approximately November 21, 2017.

Procedural History: William

[6] William is the child of Mr. Fuhgeh and Ms. Bernard. He was born on July 27, 2013. After being together for about four years the couple separated in January 2017. William has remained in his mother’s primary care since then. Ms. Bernard commenced a court application on February 22, 2017. After a number of appearances, a case conference came on before Audet J. on September 6, 2017. The date had been obtained on May 2nd, but Mr. Fuhgeh was not present for the conference. He filed a confirmation form saying he would be seeking an adjournment. An agent attended and advised only that Mr. Fuhgeh was out of the country. After noting that the case had been ongoing for seven months, without any forward progress, Audet J. decided to case manage the file and made a procedural order with timelines for disclosure. She also directed that a temporary motion was to be scheduled to deal with, amongst other things, temporary custody and access and the appointment of the OCL. This contested motion was heard by Sheard J. on October 26, 2017. Her reasons were released on November 21, 2017. She noted that Mr. Fuhgeh had chosen not to see William for most of September and that communication between the parents was fraught with conflict. She made an order that William would continue in his mother’s care and would be with his father alternate weekends and every Wednesday overnight. She specified that drop offs for access would be at a Walmart parking lot, and she ordered a clinical investigation by the OCL. The parents were ordered to complete the requisite intake forms within 14 days.

[7] Following release of the Sheard decision, Mr. Fuhgeh delivered a Notice of Withdrawal from William’s case. As case management judge, Audet J. endeavored to schedule a teleconference with all parties, including Mr. Fuhgeh, to discuss the matter. Mr. Fuhgeh did not join the conference call, having advised the trial office not to send him any further communications on this matter. Accordingly, Audet J. set a date for an uncontested trial to proceed on December 18, 2017.

[8] On December 18, 2017, a final order was made which provided amongst other terms that Mr. Fuhgeh had supervised access to William at the mother’s discretion and in the child’s best interests. This final order is the existing order with respect to William’s access to his father. Mr. Fuhgeh has not availed himself of the access provided in the order and in fact has not seen William since approximately November 21, 2017.

The Current Process with Respect to Access to Both Children

[9] Mr. Fuhgeh brings a motion for a temporary “without prejudice” order for unsupervised access to both children, with pick up and drop off at their school when in session, and at other times at a mutually agreed location with absolutely no contact between either mother with himself. Additionally, he asks for video communication with each child for one hour three times each week.

[10] Prior to issuing these motions Mr. Fuhgeh had already brought a motion to set aside the final order made by Audet J. in William’s file and to set aside her temporary order in Joshua’s file. Shelston J. undertook to case manage these matters. On February 25, 2019, Shelston J. provided Ms. Stewart and Ms. Bernard leave to bring a motion for security for costs which he ruled was to proceed forthwith. On the same date Mr. Fuhgeh was also provided leave to bring a motion for temporary access to both children.

[11] Apparently, there was some confusion such that on February 28, 2019, Shelston J. further endorsed that it was his intention that the motions for security for costs would proceed first. He made a further endorsement on March 15th after Mr. Fuhgeh had scheduled his access motion for March 21st. Shelston J. adjourned the access motion so that the security for costs motion, by then scheduled for April 18, 2019, would precede it.

[12] On March 15th, Shelston J. also directed the parties to schedule a case conference before him to address the issues in the access motion. Mr. Fuhgeh maintains that case conference took place on March 27th by teleconference. The responding parties disagree.

[13] Neither the file of Joshua or William contains any endorsement with respect to a conference on March 27th. There was a conference on that date in the FRO file with respect to Mr. Fuhgeh’s child support arrears. In that file Shelston J. endorsed that Mr. Fuhgeh could proceed on a motion to stay enforcement of the child support orders pending his motion to set those orders aside. Nothing is written with respect to the access motions.

[14] All parties agree that on March 27th Shelston J. did ask the responding parties if they were opposing the access motion, and that they replied in the affirmative.

[15] Mr. Fuhgeh relies on this question and answer as constituting the case conference on the issues raised by his access motions. I disagree. I find there has not been the case conference on those issues that Shelston J. directed was to take place.

[16] The security for costs motion was heard on April 18th, and remains under reserve. After that motion was heard Mr. Fuhgeh delivered his access motion, returnable on July 2, 2019.

Reasons Specific to William

[17] There is a final order in existence governing Mr. Fuhgeh’s access to William. Until and unless that order is set aside, the process by which it may be changed is commenced by a Motion to Change. This is an originating process. By comparison the motion Mr. Fuhgeh served is interlocutory. There is a specific statutory requirement that the party moving to change a final order must meet the threshold test of establishing a material change in circumstances affecting the best interests of the child since the final order was made. Mr. Fuhgeh has not followed the required process and the material he has filed does not address the threshold test. For these reasons, his motion with respect to William shall be dismissed.

[18] Mr. Fuhgeh points out that he was given leave to bring the motion. It does not appear that when leave was granted that the court was directed to the existence of a final order with respect to William. The law is clear that an originating process is mandated and as the motion judge, I have applied that law.

[19] I would also have declined to grant Mr. Fuhgeh’s motion for expanded, unsupervised access to William in any event. When Sheard J. awarded him alternate weekend access and Wednesday overnight access, she also specified an exchange location and ordered the parents to complete OCL Intake Forms pursuant to her request for a clinical investigation. In oral argument, Mr. Fuhgeh explained to me that he was very opposed to the exchange location she chose and that he strongly disagreed with her decision to seek the involvement of the OCL. These were two of the reasons he gave by way of explanation for withdrawing from the case and for not exercising his available access to William. This put him in breach of a court order. His decision to forgo access because of his opposition to the court ordered exchange location preferred his own beliefs over both the decision of the court and the interests of his son to have a continuing relationship with his father. After the passage of 19 months since Mr. Fuhgeh chose not to see William, these facts would have disinclined me to grant him the relief he now seeks.

Reasons Specific to William and Joshua

[20] Mr. Fuhgeh has not seen either child for 19 months. It was his decision not to exercise the access that was available to him. For William the access order of Sheard J. was operative at the time of his withdrawal. For Joshua the access order of Kershman J. was operative at the time of his withdrawal. Both orders provided him with considerable access to his children. The orders for supervised access were made after he articulated his intention not to exercise access and filed his notices of withdrawal.

[21] Mr. Fuhgeh advised me of his strongly held view that Audet J. was in a conflict of interest, was biased against him and not impartial between the parties, and therefore when she commenced case managing the files he could not appear before her. These beliefs are foundational to his motions to set aside her final and temporary orders. Mr. Fuhgeh made the decisions he did, stating that in his view the better way to proceed was to withdraw and then apply to set aside whatever orders she made. These issues will be canvassed in the motions to set aside, but in my view, do not bear on what is in the best interests of the children now.

[22] Orders made by Shelston J. have not been followed. There has not been a case conference on the issues raised in the access motion. I am also of the view that when Shelston J. directed that the security for costs motions proceed first, he must surely have intended that it was to be heard and decided before the access motion was brought. Otherwise there would have been no discernable purpose to directing the order in which the motions would proceed.

[23] The materials filed by Mr. Fuhgeh in support of his access motion do not address the needs or best interests of the children. They do not provide a persuasive explanation for why he chose not to see them in November 2017, nor as to what circumstances in the intervening months support his wish to reconnect with them.

Conclusion

[24] Both motions are dismissed with costs to each responding party fixed in the amount of $1,000 each. These costs shall be paid within 60 days.

[25] Mr. Fuhgeh has a simple remedy should he wish to re commence his relationship with his children. He could apply to the Supervised Access Centre to enter its waiting list. He could advise the responding parties that he has done so, so that each could re-apply if their application is now out of date. He could sign a consent to a clinical investigation by the OCL, complete his Intake Form and seek the responding parties consent to a fresh order to this effect.

[26] The responding parties want to know that any reintroduction of contact between the father and children will be done in a child focused way, sensitive to the children’s needs and the long absence of their father from their lives. They also want to know that Mr. Fuhgeh will be consistent in maintaining his relationship with them, and not opt out again should other orders be made that he disagrees with. These are very legitimate concerns directed to the children’s best interests.

[27] In short Mr. Fuhgeh has the simple option of complying with the existing access orders and correcting his default in relation to the order appointing the OCL to the case. Although this is not a contempt motion, the words of Justice Robert Blair in Surgenor v. Surgenor, (1991) 6 C.P.C. (3d) 318 (Ont. Ct. Gen. Div.) at paras 5 to 7 are applicable here:

[5] No society which believes in a system of even-handed justice can permit its members to ignore, disobey, or defy its laws and its courts’ orders at their whim because in their own particular view, it is right to do so. A society which countenances such conduct is a society tottering on the precipice of disorder and injustice.

[6] The need for the sanction of contempt proceedings is of significant importance in the field of family law. There is an undertow of bitterness and sense of betrayal which often threatens to drown the process and the parties themselves in a sea of anger and “self-rightness.” In this environment it is all too easy for a spouse to believe that he or she “knows what is right,” even after a matter has been determined by the Court, and to decide to ignore, disobey or defy that determination.

[7] Those who choose to take this tack must know that it will not be tolerated.

J. Mackinnon J. Date: July 5, 2019