COURT FILE NO.: FC-17-361-E002
DATE: 2019/07/29
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Director, Family Responsibility Office for the benefit of Edith Marie Marielle Bernard, 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 Audet dated December 18, 2017. This Order requires Mr. Fuhgeh to pay Ms. Bernard child support of $461/m in ongoing support starting on December 1, 2017, $4,050 for child support for the period from March 1, 2017, to November 30, 2017, and costs of $70,000, $50,000 of which is enforceable by FRO. Arrears, as of July 8, 2019, total $61,621.84.
[2] Justice Audet’s Final Order dated December 18, 2017, was made within Ms. Bernard’s Application which commenced on February 22, 2017. Mr. Fuhgeh withdrew from the Application by serving a Notice of Withdrawal dated November 21, 2017, alledging bias. The matter then proceeded as an uncontested trial on December 18, 2017, although Mr. Fuhgeh was aware of that hearing date and advised in writing that he did not plan to attend[^2].
[3] On December 3, 2018, Mr. Fuhgeh served a Notice of Motion in FC-12-912-5 and FC-17-361. FC-12-912-5 is a proceeding between Mr. Fuhgeh and Ms. Stewart, 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, including the cost orders, 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.
[4] Mr. Fuhgeh seeks a stay of enforcement of the child support owed to Ms. Bernard because of his December 3, 2018 motion. 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 continue to pay.
[5] The issues to be decided are:
Should enforcement of the child support arrears, including costs, be stayed pending the determination of Mr. Fuhgeh’s December 3, 2018 motion to set aside/stay the underlying Order?
What Order should be made on FRO’s Default Hearing?
Issue #1: Should enforcement of the child support arrears, including costs, be stayed pending the determination of Mr. Fuhgeh’s December 3, 2018 motion to set aside/stay the underlying Order?
[6] I adjourn Mr. Fuhgeh’s motion to stay the enforcement of the child support arrears because he did not properly serve the support recipient, Ms. Bernard, despite being ordered to do so.
[7] FRO’s Default Hearing and Mr. Fuhgeh’s motion to stay were before me on July 19, 2019. 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. Bernard and enjoin them from doing same any further until the motions by Mr. Fuhgeh to set aside/stay the underlying Orders and Ms. Bernard’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.”
[8] In support of his motion, Mr. Fuhgeh filed an affidavit of 189 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.
[9] The Trial Coordinator scheduled the matters to return on July 19, 2019. After the Trial Coordinator set that date, Mr. Fuhgeh obtained an earlier motion date for July 11, 2019. I vacated the July 11, 2019 date, with costs reserved to July 19, 2019.
[10] 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. Bernard. 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. Bernard to be served. Ms. Bernard also sent Mr. Fuhgeh several emails requesting his motion material. Despite this, Mr. Fuhgeh did not serve his motion material – the same material he served on FRO on March 25, 2019 - on Ms. Bernard until July 17, 2019[^3], by email.
[11] This service issue raises the question of whether Mr. Fuhgeh’s motion to stay should be determined without proper service on Ms. Bernard. I conclude that it should not. The service on Ms. Bernard is late. The service by email also did not follow the Family Law Rules[^4], which provides that service by email must be on consent or according to a court order. Mr. Fuhgeh relies on the interim order of Justice Audet dated October 4, 2017 (which is one of the orders he seeks to set aside) which grants leave for both parties to serve documents in this matter by email[^5]. However, the October 4, 2017 order also requires that when an affidavit is served, each exhibit “shall be served by separate emails properly identifying the exhibit being served.” Mr. Fuhgeh did not serve each exhibit by separate email. His affidavit of service states that he provided his motion material, being his 189-page affidavit including nine exhibits, his 20-page factum, and his two-page Notice of Motion, in one email, two days before he proposed his motion to be heard.
[12] Ms. Bernard did not attend court on July 19, 2019. She did provide an affidavit sworn July 9, 2019, before she had Mr. Fuhgeh’s material. Ms. Bernard’s affidavit does not correct Mr. Fuhgeh’s failure to serve Ms. Bernard with his motion material within a reasonable period, nor his failure to serve her in accordance with the October 4, 2017 order he relies upon for email service.
[13] Mr. Fuhgeh argues that he is not required to serve Ms. Bernard with his motion material in this enforcement proceeding, as it is a matter solely between himself and FRO. I disagree and expressly ordered on July 11, 2019, that Ms. Bernard, as a support recipient, be served.
[14] Also, FRO advises that at this time it is only seeking that Mr. Fuhgeh complies with his ongoing child support obligations, by paying child support of $461/m and is prepared to adjourn to a later date the issue of what payments Mr. Fuhgeh should make towards the arrears of child support.
[15] I, therefore, adjourn Mr. Fuhgeh’s motion to stay the enforcement of the child support arrears to the next date in this matter, as set out below.
Issue #2: What Order should be made on FRO’s Default Hearing?
[16] The purpose of a Default Hearing is to require the payor to come before the court to explain his default[^6]. 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[^7]. 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[^8].
[17] FRO seeks an order requiring Mr. Fuhgeh to pay child support of $461/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.
[18] 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.
[19] Mr. Fuhgeh’s main arguments were made as part of his motion to stay. Concerning the enforcement of ongoing child support, Mr. Fuhgeh takes the position that he does not have the ability to pay.
Ability to Pay
[20] 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[^9], 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.
[21] 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 reports his line 150 income as $2,820[^10]. 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 reports his line 150 income as $8,011[^11]. His gross professional income is $17,827. His net professional income is $8,011.
[22] 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.
[23] 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. These statements include Mr. Fuhgeh’s 2017 motion to change in Stewart v. Fuhgeh[^12], in which he sought to reduce child support based on his income being $21,516. This income differs from his line 150 income set out above.
[24] 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.
[25] 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
[26] 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. 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.
[27] I do have significant concern that Mr. Fuhgeh has not demonstrated a commitment to meeting his child support obligations and placing the interests of the child before his own. The Director’s Statement of Arrears shows that Mr. Fuhgeh has always been in arrears of child support. 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.
[28] 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 is paying and is prepared to continue to pay. The only payments Mr. Fuhgeh has made towards his child support obligation, since December 1, 2017, are as follows:
• February 12, 2018 - $101.20
• May 11, 2018 - $379.53
• July 4, 2018 - $126.51
• December 13, 2018 - $202.42
• January 14, 2019 - $202.42
• February 25, 2019 - $202.42
• March 8, 2019 - $202.42
• June 21, 2019 - $202.42
Total $1,619.34
[29] During the period from March 21, 2019, to June 27, 2019, FRO was able to collect small additional amounts through diversions, but these additional payments only total $697.31.
[30] For the period from December 1, 2017 to July 1, 2019 (29 months), therefore, Mr. Fuhgeh has only paid $2,316.65 towards child support, including the amounts collected through diversions, when he should have paid $4,000 for the same period if he was paying the $200/m that he states he has been paying and proposes he be allowed to continue to pay.
Other Considerations
[31] I also find that requiring Mr. Fuhgeh to pay the ongoing child support of $461/m does not expose him to a level of potential prejudice that would justify the exercise of any discretion I may have to reduce the ongoing child support payable under the existing order[^13]. I find this because, even if Mr. Fuhgeh’s child support obligation is reduced to $200/m, his payments of $461/m will be credited to this obligation and the remainder will go to arrears. If Mr. Fuhgeh’s child support obligation dating back to March 1, 2017,[^14] is $200/m, he would still be in arrears of approximately $3,483[^15], which would take over thirteen months to pay at $261/m. These amounts do not even include Mr. Fuhgeh’s presumptive obligation to pay costs as a result of his withdrawal.
[32] I wish to address Mr. Fuhgeh’s reference to Master MacLeod’s (as he then was) Order of February 15, 2013, that required him to pay child support of $200/m. Mr. Fuhgeh argues that this order is the only “full adjudication” of his ability to pay. Mr. Fuhgeh’s reference to this order is misleading, unhelpful, and most likely intended to confuse and distract the Court from a determination of this matter on its merits. I say this for several reasons – the first being that the February 15, 2013 order was made in a proceeding between Mr. Fuhgeh and a different support recipient – Ms. Stewart. The second reason is that the February 15, 2013 Order is an interim order. On May 9, 2013, Justice Robertson made a final order, on consent, requiring Mr. Fuhgeh to pay child support to Ms. Stewart of $450/m[^16]. Mr. Fuhgeh appealed the May 9, 2013 Order but leave to appeal was denied by the Divisional Court[^17]. The third reason is that Master MacLeod’s endorsement does not reflect a full adjudication of Mr. Fuhgeh’s income. The endorsement sets out that “it is difficult to assess” Mr. Fuhgeh’s income, in part because his income tax returns report very little net income and concerns related to his business expenses. Master MacLeod found that it was reasonable to “simply continue” the $200/m that Mr. Fuhgeh had been paying, specifically noting that the trial was scheduled to proceed on May 21, 2013, and that the interim support would be subject to retroactive adjustment at trial.
[33] I also wish to address Mr. Fuhgeh’s reference to Ms. Bernhard’s motion for security for costs. That motion was heard, and a decision was released on July 23, 2019[^18]. The outcome of that motion does not change my determinations above.
[34] Therefore, I find that Mr. Fuhgeh shall be required to pay the ongoing child support of $461/m. His failure to do so before the next return date shall expose him to the sanction of imprisonment.
Disposition
[35] 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. Bernard is adjourned to October 28th, 2019, at 2:00 p.m.
Mr. Fuhgeh shall pay no less than the ongoing child support of $461/m from the date of this order forward.
I adjourn the Default Hearing to October 28th, 2019 at 2:00 p.m. for further order concerning any default that persists at that time. This hearing 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
[36] Costs of July 11, 2019, were reserved to July 19, 2019.
[37] FRO seeks costs of the appearance required on July 11, 2019, as well as July 19, 2019, fixed at $500[^19]. 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.
[38] 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, as that motion has been adjourned.
[39] 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. Bernard 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 29, 2019
COURT FILE NO.: FC-17-361-E002
DATE: 2019/07/29
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Director, Family Responsibility Office for the benefit of Edith Marie Marielle Bernard, 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 29, 2019
[^1]: Pursuant to the Family Responsibility and Support Arrears Enforcement Act, 1996, (“FRSAEA”) S.O. 1996, c.31, as am, s.41 [^2]: See Bernard v. Fuhgeh, 2019 ONSC 4447; and Stewart v. Fuhgeh, 2019 ONSC 4126 [^3]: Service was sent on July 16, 2019 at 5:18 pm. Pursuant to the rules, this service is effective the next day. [^4]: Family Law Rules, O.Reg. 114/99 as am. [^5]: Except for documents requiring special service. [^6]: FRSAEA, s. 41 [^7]: FRSAEA, s.41(9) [^8]: Fisher v. Ontario (Director, Family Responsibility Office), 2008 ONCA 815 [^9]: FRSAEA, s.41(9) [^10]: Mr. Fuhgeh has not filed the second and third pages of his 2017 T1 General. He has filed various schedules to his T1 General. There is reference to his line 150 income at the end of the pages provided, in what appears to be an information slip to be attached to his tax filing. [^11]: Mr. Fuhgeh has not filed the second and third pages of his 2018 T1 General. He has filed various schedules to his T1 General. There is reference to his line 150 income at the end of the pages provided, in what appears to be an information slip to be attached to his tax filing. [^12]: Being file FC-12-912-01. Mr. Fuhgeh attached this motion to change as an Exhibit to his affidavit. [^13]: In the absence of a motion to stay the underlying order [^14]: The date his obligation to pay child support commences under the December 18, 2017 Order [^15]: $200/m X 29 months = $5,800. $5,800 less Mr. Fuhgeh’s payments of $2,316.65 = $3,483.35 [^16]: See also FRO v. Fuhgeh, 2019 ONSC 4390 [^17]: Fuhgeh v. Stewart, 2014 ONSC 2912 [^18]: Bernard v. Fuhgeh, 2019 ONSC 4447 [^19]: FC-12-912-E002 and FC-17-361-E002 were argued at the same time. FRO sought costs of $500 per appearance for both files, for total costs of $1,000. I have attributed $500 of these requested costs to this file FC-17-361-E002.