Court File and Parties
COURT FILE NO.: FC-12-912-E002 DATE: 2019/07/25 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Director, Family Responsibility Office for the benefit of Kimberly Melissa Stewart, Applicant -and- William Ndze Fuhgeh, Respondent
BEFORE: Justice P. MacEachern
COUNSEL: M. Feeley, for the Applicant Respondent, Self-Represented
HEARD: July 19, 2019
Endorsement
[1] The Family Responsibility Office (“FRO”) has brought a Default Hearing [1] against Mr. Fuhgeh for his failure to pay child support under the Final Order of Justice Robertson dated May 9, 2013, in Court File FC-12-912. This Order requires Mr. Fuhgeh to pay Ms. Stewart child support of $450/m. Arrears, as of July 8, 2019, total $11,320.78.
[2] Mr. Fuhgeh seeks to stay FRO’s enforcement until his motion to set aside/stay the underlying Orders is determined, except for $200/m that he states he is prepared to pay.
[3] The issues to be decided are:
- Should I grant Mr. Fuhgeh’s request to stay enforcement pending the determination of his motion to set aside/stay the underlying Orders?
- What Order should be made on FRO’s Default Hearing?
Procedural History
[4] FRO’s Default Hearing was originally scheduled for April 2, 2019. On March 25, 2019, Mr. Fuhgeh served FRO with his motion returnable on the same day as the Default Hearing. Mr. Fuhgeh sought to:
“Rescind and stay all enforcement mechanisms already engaged by FRO and Ms. Stewart and enjoin them from doing same any further until the motions by Mr. Fuhgeh to set aside/stay the underlying Orders and Ms. Stewart’s for security for costs are adjudicated to finality, on terms that Mr. Fuhgeh continue to pay $200 each month as child support as had been ordered by Master McLeod on February 15, 2013, upon full review of Mr. Fuhgeh’s Financial Records.”
[5] In support of his motion, Mr. Fuhgeh filed an affidavit of 126 pages and a factum. I adjourned the Default Hearing and Mr. Fuhgeh’s motion to stay to a date to be scheduled by the Trial Coordinator because there was insufficient time on April 2, 2019, to hear the matters.
[6] The Trial Coordinator scheduled the matters to return on July 19, 2019. After the Trial Coordinator set that date, Mr. Fuhgeh obtained a motion date on July 11, 2019, for his motion to stay. I vacated the July 11, 2019 date, with costs reserved to July 19, 2019.
[7] The July 19, 2019 date, therefore, was scheduled for FRO’s Default Hearing and Mr. Fuhgeh’s motion to stay. On April 2, 2019, and again on July 11, 2019, FRO counsel gave notice of their argument that Mr. Fuhgeh could not stay the enforcement of the support deduction order without obtaining a stay of the underlying order, which required, at a minimum, service on Ms. Stewart. This argument relies on s.20(6) of The Family Responsibility and Support Arrears Enforcement Act, 1996 (“FRSAEA”). In my endorsement of July 11, 2019, I specifically required Ms. Stewart to be served. Despite this, Mr. Fuhgeh did not serve his motion material – the same material he served on FRO on March 25, 2019 - on Ms. Stewart until July 17, 2019 [2], by email.
[8] This raises an issue as to whether Mr. Fuhgeh’s motion to stay can be determined without proper service on Ms. Stewart. The service on Ms. Stewart is late and is not proper service because it was done by email, without Ms. Stewart’s consent nor a court order allowing for such service. The order that Mr. Fuhgeh relies on to support this service is an interim order dated June 1, 2013, and cannot be relied on in these subsequent proceedings as a basis to allow service by email. To be clear, pending further order of the court or agreement of Ms. Stewart, Mr. Fuhgeh is required to serve Ms. Stewart with any further documents in accordance with the Family Law Rules [3]. Service by email shall only be permitted if, after the date of this order, Ms. Stewart confirms her agreement to such service or there is a further court order permitting such service.
[9] Although I find that Mr. Fuhgeh’s service of his motion material on Ms. Stewart is insufficient, I am dismissing his motion to stay for other reasons.
Issue #1: Should I grant Mr. Fuhgeh’s request to stay enforcement pending the determination of his motion to set aside/stay of the underlying Orders?
[10] I dismiss Mr. Fuhgeh’s motion to stay enforcement because FRO is enforcing child support payable under the May 9, 2013 Order. Mr. Fuhgeh has not brought a motion to set aside, stay or vary the May 9, 2013 Order.
[11] There has been an extensive litigation history between Mr. Fuhgeh and Ms. Stewart. The starting point for these enforcement proceedings is the Final Order of Justice Robertson dated May 9, 2013, made on consent. Mr. Fuhgeh is required to pay Ms. Stewart child support of $450/m under the May 9, 2013 Order. This child support amount includes daycare and “may be reviewed and adjusted annually.” The order provides that Mr. Fuhgeh’s income is imputed to be at least sufficient to support an order of $450/m.
[12] Mr. Fuhgeh sought to appeal the May 9, 2013 Order. The Divisional Court refused leave to appeal on May 8, 2014 [4]. On January 20, 2014, Justice Kershman granted a further final order, on consent. This order varies the access under Justice Robertson’s May 8, 2013 Order but does not change the child support under Justice Robertson’s May 9, 2013 Order. Justice Kershman’s Order provides that the issues of child support and arrears of child support are adjourned to another date upon full and complete disclosure from both parties. It went on to make a detailed order requiring Mr. Fuhgeh to provide disclosure.
[13] On June 15, 2017, Mr. Fuhgeh filed a motion to change the access and child support under the May 8 and 9, 2013 Orders of Justice Robertson (FC-12-912-1). He sought a change in child support as of July 1, 2017, based on his income being $21,516/yr, such that his child support is reduced to $172.13/m. He amended this motion to change in July 2017 seeking equal parenting time and for child support be payable under the shared custody provisions (section 9) of the Child Support Guidelines [5]. On November 21, 2017, Mr. Fuhgeh withdrew his motion to change in FC-12-912-1 by serving a notice of withdrawal.
[14] Ms. Stewart sought costs because of Mr. Fuhgeh’s withdrawal. Rule 12 (3) of the Family Law Rules provides that a party who withdraws shall pay the costs of every other party unless the court orders otherwise or the parties agree. Ms. Stewart was presumptively entitled to her costs due to Mr. Fuhgeh’s withdrawal.
[15] On December 18, 2017, in FC-12-912-1, Justice Audet ordered Mr. Fuhgeh to pay costs to Ms. Stewart of $2,300 and that FRO enforce these costs.
[16] At this point in the litigation history, therefore:
- Justice Robertson’s May 9, 2013, Final Order remains in force;
- Mr. Fuhgeh’s appeal of the May 9, 2013 Order has been dismissed;
- Mr. Fuhgeh is still required to pay Ms. Stewart child support of $450/m;
- Mr. Fuhgeh has withdrawn his motion to change the May 9, 2013 Order; and
- Justice Audet has ordered Mr. Fuhgeh to pay costs of $2,300 because of his withdrawal, enforceable by FRO.
[17] On December 3, 2018, Mr. Fuhgeh served a Notice of Motion in FC-12-912-5 [6] and FC-17-361. FC-17-361 is a proceeding between Mr. Fuhgeh and Ms. Bernard, with whom Mr. Fuhgeh has another child and is also in arrears of child support. In his Notice of Motion dated December 3, 2018, Mr. Fuhgeh seeks to set aside/stay all of the previous orders of Justice Audet as well as other related relief. Mr. Fuhgeh’s motion is still outstanding and is being case managed by Justice Shelston, who has set a timetable for the motion to be heard. It was originally to be heard before the end of August 2019, but that timeline has been extended.
[18] Mr. Fuhgeh seeks a stay of enforcement of the child support owed to Ms. Stewart because of his December 3, 2018 motion. He states it would be unfair for enforcement to proceed before his motion to set aside/stay the underlying Order is determined.
[19] However, Mr. Fuhgeh’s December 3, 2018 motion does not seek to set aside, stay, or vary the May 9, 2013 Order of Justice Robertson, under which he owes the child support arrears. Mr. Fuhgeh does not have a motion to change the May 9, 2013 Order before the court. He did have one, in June of 2017, but he withdrew it.
[20] The only relief sought by Mr. Fuhgeh’s December 3, 2018 Notice of Motion that impacts on the child support owed to Ms. Stewart is his request to set aside Justice Audet’s Order of December 18, 2017, that awarded Ms. Stewart costs of $2,300, enforceable by FRO. FRO does not appear to be currently enforcing these costs, however, as they do not appear on the Director’s Statement of Arrears sworn July 8, 2019.
[21] Even if FRO were enforcing the December 18, 2017 costs award of Justice Audet of $2,300, I would still decline to stay enforcement of those costs of $2,300 because I do not find that there is a prima facie case for that costs order to be set aside. Mr. Fuhgeh withdrew his motion to change – Ms. Stewart was presumptively entitled to her costs due to his withdrawal.
[22] On December 18, 2017, Justice Audet did make an order in FC-12-912-5 that deals with Mr. Fuhgeh’s access, which he is also seeking to set aside, but that order does not affect Mr. Fuhgeh’s child support obligation.
[23] In his motion to stay served on FRO on March 25, 2019, Mr. Fuhgeh raises Ms. Stewart’s motion for security for costs and states that enforcement of child support should also be stayed until that motion is decided. The security for costs motion was argued on April 18, 2019, but a decision has not yet been released.
[24] I do not agree that the enforcement of child support should be stayed until the security for costs motion is determined. Ms. Stewart and Ms. Bernard both brought motions for security for costs in response to Mr. Fuhgeh’s December 3, 2018 motion. The issue of whether or not Mr. Fuhgeh should be required to post security for costs to proceed with his December 3, 2018 motion has no bearing on the child support that Mr. Fuhgeh owes.
[25] In his motion to stay served on FRO on March 25, 2019, Mr. Fuhgeh raises Master McLeod’s Order of February 15, 2013, that required him to pay child support of $200/m. The February 15, 2013 Order is an interim order made within FC-12-912, before Justice Robertson’s Final Order of May 9, 2013. The February 15, 2013 interim order also has no bearing on the child support being enforced at this time.
Issue #2: What Order should be made on FRO’s Default Hearing?
[26] The purpose of a Default Hearing is to require the payor to come before the court to explain his default [7]. The central issues are the amount of arrears and the payor’s ability to pay. Payors are presumed to have the ability to pay the arrears and to make subsequent payments under the order unless the payor meets his onus to prove the contrary [8]. The Court may adjourn the hearing and may make a temporary order, which may include all of the relief available under s.41 (10) of the FRSAEA, including a period of imprisonment [9].
[27] FRO seeks an order requiring Mr. Fuhgeh to pay child support of $450/m on an ongoing basis failing which he be imprisoned for one day for each default. FRO is not, at this time, seeking additional relief for the payment of the arrears. FRO proposes that the Default Hearing be adjourned for further arguments on that issue, in part due to Mr. Fuhgeh’s December 3, 2018 motion to stay/set aside Justice Audet’s Orders. Given my decision that Mr. Fuhgeh’s December 3, 2018 motion has nothing to do with the arrears that FRO is now seeking to enforce, I would not have adjourned the issue of how to deal with the arrears. However, in fairness to Mr. Fuhgeh, I will accede to the request to adjourn the arrears issue given FRO’s position.
[28] FRO argues that Mr. Fuhgeh has a long history of failing to pay child support, failing to comply with court orders, using the legal process to avoid his support obligations, and misrepresenting his income. FRO’s main argument is that other enforcement measures have not been effective at compelling Mr. Fuhgeh to comply with his support obligations.
[29] Mr. Fuhgeh’s main arguments were made as part of his motion to stay. Concerning the enforcement of support, Mr. Fuhgeh takes the position that he does not have the ability to pay.
Ability to Pay
[30] I am not satisfied, within these enforcement proceedings, that Mr. Fuhgeh does not have the ability to pay the ongoing support. Payors are presumed to have the ability to pay unless they show the contrary [10], which requires the payor to provide frank financial disclosure. Mr. Fuhgeh has not provided frank financial disclosure that satisfies the onus on him to prove he does not have the ability to pay.
[31] Although Mr. Fuhgeh states that his financial troubles significantly worsened in 2017, the income tax information he has provided to the Court does not disclose a significant change:
- Mr. Fuhgeh’s 2014 Notice of Assessment shows line 150 income of $2,056. His gross professional income of $31,919. His net professional income is $1,356.
- Mr. Fuhgeh’s 2015 Notice of Assessment shows line 150 income of $2,512. His gross professional income of $22,948. His net professional income is $592.
- Mr. Fuhgeh’s 2016 Notice of Assessment shows line 150 income of $786. His gross professional income is $21,516. His net professional income is $-174.
- Mr. Fuhgeh’s 2017 income tax return filed with the court does not show his line 150 income. His gross professional income is $15,000. His net professional income is $2,820.
- Mr. Fuhgeh’s 2018 income tax return filed with the court does not show his line 150 income. His gross professional income is $17,827. His net professional income is $8,011.
[32] There are significant questions regarding Mr. Fuhgeh’s income that are not answered by his financial statement or income tax returns. Mr. Fuhgeh acknowledges that he operates his law office out of his residence. It appears that many of his personal expenses are covered by business expenses, such as rent, but Mr. Fuhgeh has not provided a clear statement on these personal benefits.
[33] The conclusion that Mr. Fuhgeh’s income for support purposes is different than what appears at line 150 of his income tax returns is supported by his previous statements regarding his income. Mr. Fuhgeh’s 2014, 2015 and 2016 income tax returns were filed with his 2017 motion to change, which included him stating, in his Change Information Form, that his income for 2017, 2016 and 2015 was $21,000, $21,516, and $22,948 respectively, despite his line 150 income being $2,820 [11], $-174, and $592 for the same periods. Also, in his 2017 motion to change, which he withdrew, Mr. Fuhgeh sought to reduce child support based on his income of $21,516.
[34] Mr. Fuhgeh’s only confirmation of his income for the year to date is a letter from himself dated March 15, 2019, on his law office letterhead, stating that he has been in financial distress since 2017 due to various issues, including the conflict with Ms. Stewart and Ms. Bernard. Although this letter sets out the last three payments Mr. Fuhgeh received, it does not provide the time intervals between these payments, nor his income for the year to date. Without this detail, the information provided lacks meaning.
[35] Mr. Fuhgeh has also not provided reasonable evidence in support of his position that he cannot earn income to pay the child support owed. Mr. Fuhgeh is a practicing lawyer but states he is unable to earn anything other than a marginal income as a lawyer. He refers to his income tax returns in support of this statement. However, his income tax returns reflect similar income for the period provided - dating back to 2014. If I accept the information in his income tax returns, which I do not for the reasons above, then Mr. Fuhgeh should have long ago made other efforts to increase his income. Mr. Fuhgeh has not provided any reasonable explanation for why he has not taken steps to increase his income by pursuing other work. The only alternative he proposes is that he become an Uber driver, which is not a reasonable plan given that his licence is suspended due to his support arrears.
Term of Imprisonment
[36] FRO seeks an Order that automatically imposes a term of imprisonment, albeit just for one day for each default. I am not prepared to make this order at this time, solely because of fairness concerns to Mr. Fuhgeh. Although Mr. Fuhgeh is a sophisticated litigant, and the Notice of Default sets out imprisonment as a possible sanction, I agree with his concerns that on April 2, 2019, FRO counsel suggested that imprisonment was not being sought at this time.
[37] If not for this factor, I would have granted the order requested by FRO. I find that the circumstances of this case warrant a period of imprisonment as a “last resort” to impress on Mr. Fuhgeh the importance of him paying the ongoing child support. The Director’s Statement of Arrears shows that Mr. Fuhgeh has always been in arrears of child support. The Statement shows that Mr. Fuhgeh has owed arrears dating back to May of 2013. This enforcement proceeding is also the second – the first was instituted in 2015 and resulted in Mr. Fuhgeh paying $600/m (so $150 towards arrears) for a period but these payments ended in August of 2017. FRO has already suspended Mr. Fuhgeh’s drivers’ license and taken other steps to enforce the arrears, which have largely been unsuccessful. The only bank account on Mr. Fuhgeh’s financial statement is in overdraft.
[38] Based on the evidence before me, Mr. Fuhgeh’s conduct has demonstrated a willful and deliberate disregard for his obligation to comply. No other conclusion is possible given Mr. Fuhgeh’s payment history. Mr. Fuhgeh has not even been paying the $200/m in ongoing child support that he states he would pay in his 2017 motion to change (since withdrawn) or in his Default Dispute. In 2018, Mr. Fuhgeh only made total payments of $790.34 for the year, when $2,400 should have been paid if he was paying $200/m. In 2019, for the period from January to July 7, 2019, Mr. Fuhgeh has only made total payments of $790.32, excluding amounts FRO was able to enforce through diversion receipts, when $1,400 should have been paid if he was paying $200/m.
[39] Mr. Fuhgeh needs to pay the ongoing child support, as well as to take immediate steps to address the arrears. His failure to do so prior to the next return date shall expose him to the sanction of imprisonment.
Disposition
[40] For the reasons above, I make the following orders:
- Mr. Fuhgeh’s motion to stay the enforcement of the ongoing child support and arrears of child support owed to Ms. Stewart is dismissed.
- Mr. Fuhgeh shall pay no less than the ongoing child support of $450/m from the date of this order forward.
- I adjourn the Default Hearing to September 13, 2019, at 10 a.m. for further order concerning any default that persists at that time. This shall include whether a term of imprisonment for up to a period of 180 days should be imposed for any default in paying the ongoing support and/or arrears and whether a further order should be made requiring Mr. Fuhgeh to make full or partial payments concerning the arrears of child support.
Costs
[41] Costs of July 11, 2019, were reserved to July 19, 2019.
[42] FRO seeks costs of the appearance required on July 11, 2019, as well as July 19, 2019, fixed at $500 [12]. FRO seeks costs to impose consequences on Mr. Fuhgeh for taking steps that it states he should not have – by obtaining the July 11, 2019 hearing date and failing to serve Ms. Stewart with his motion material within a reasonable time. FRO advises that any costs ordered against Mr. Fuhgeh would not be collected until all arrears of support are paid.
[43] Mr. Fuhgeh seeks an order requiring FRO to pay costs to him fixed at $500, presumably on the basis that he would be successful in his request to stay enforcement. He was not.
[44] I agree with FRO’s request for costs against Mr. Fuhgeh and order him to pay costs of the appearances on July 11, 2019, and July 19, 2019, fixed in the amount of $500. Mr. Fuhgeh is an experienced litigant and practicing lawyer. His conduct in obtaining the July 11, 2019 motion date after the Trial Coordinator set July 19, 2019, was wasteful and unreasonable. His failure to serve Ms. Stewart with his motion material within a reasonable period, especially after my endorsement on July 11, 2019, that she needed to be served, can also not be condoned.
Justice P. MacEachern Date: July 25, 2019
COURT FILE NO.: FC-12-912-E002 DATE: 2019/07/25 ONTARIO SUPERIOR COURT OF JUSTICE RE: Director, Family Responsibility Office for the benefit of Kimberly Melissa Stewart, Applicant -and- William Ndze Fuhgeh, Respondent BEFORE: Justice P. MacEachern COUNSEL: M. Feeley, for the Applicant Respondent, Self-Represented ENDORSEMENT Justice P. MacEachern Released: July 25, 2019
Footnotes:
[1] Pursuant to the Family Responsibility and Support Arrears Enforcement Act, 1996 (“FRSAEA”) S.O. 1996, c.31, as am, s.41
[2] Service was sent on July 16, 2019 at 5:18 pm. Pursuant to the rules, this service is effective the next day.
[3] Family Law Rules, O.Reg. 114/99 as am.
[4] Fuhgeh v Stewart, 2014 ONSC 2912
[5] Child Support Guidelines, O.Reg. 391/97 as am.
[6] FC-12-912-2, 3, and 4 do not appear to exist. Mr. Fuhgeh’s notice of motion states it is filed in FC-12-912-1 but it in fact forms part of -5 file.
[7] FRSAEA, s. 41
[8] FRSAEA, s.41(9)
[9] Fisher v. Ontario (Director, Family Responsibility Office), 2008 ONCA 815
[10] FRSAEA, s.41(9)
[11] I have assumed Mr. Fuhgeh’s line 150 income in his 2017 income tax return is just his net professional income. The 2017 income tax return that he filed with the court did not contain all of the pages, including his line 150 income.