Court File and Parties
COURT FILE NO.: FC-17-361
DATE: 2019/12/09
RE: Marie Marielle Edith Bernard, Applicant
AND
William Ndze Fuhgeh, Respondent
BEFORE: J. Mackinnon J.
COUNSEL: Applicant Self-Represented
Respondent Self-Represented
HEARD: In Writing
Endorsement
[1] My reasons for dismissing Mr. Fuhgeh’s motion for without prejudice access to his son were released July 5, 2019. The order has not yet been issued because the parties disagree whether it is a temporary or final order. The distinction is significant because the appeal route turns on whether the order is final or interlocutory in nature.
[2] My endorsement reviews the procedural history relevant to the decision. On December 18, 2017 a final order was made with respect to Mr. Fuhgeh’s access to his son. The process before me was a simple notice of motion seeking a temporary order. The Family Law Rules, O.Reg. 114/99 as am, require a Motion to Change to be commenced in these circumstances. A Motion to Change is an originating process; the motion brought by Mr. Fuhgeh for temporary relief is not. To succeed on a Motion to Change a final order the moving party must meet the threshold test of establishing that a material change in circumstances affecting the best interests of the child has taken place since the final order was made. Mr. Fuhgeh did not follow the required process and the material he has filed does not address the threshold test. For these reasons, his motion was dismissed.
[3] Since that ruling finally disposed of the matter before the court, it is a final order.
[4] Mr. Fuhgeh argues that the order is interlocutory because he was seeking a temporary order. He relies on a decision under Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r 21 in which a judge refused to dismiss an action before trial. That order was interlocutory because it did not dispose of the issues in the action between the parties. It is not applicable here. My order dismissed a purported temporary motion brought in the absence of any originating process before the court.
[5] Mr. Fuhgeh also submits that my order is interlocutory because he has another process pending before this Court which seeks to set aside the final order. If the final order had been set aside, a motion for temporary access would have been properly before the court and may well have given rise to an interlocutory order. Those are not the facts of the motion that was before me.
[6] I have not taken Ms. Bernard’s submissions dated December 2, 2019 into account in reaching my conclusion that my order of July 5, 2019 is final. Accordingly, I will not receive further submissions from Mr. Fuhgeh in reply to them.
[7] The order should now issue marked Final. Costs of these written submissions to settle the order are payable to Ms. Bernard fixed in the amount of $150.00.
J. Mackinnon J.
Date: December 9, 2019
COURT FILE NO.: FC-17-361
DATE: 2019/12/09
RE: Marie Marielle Edith Bernard, Applicant
AND
William Ndze Fuhgeh, Respondent
BEFORE: J. Mackinnon J.
COUNSEL: Applicant, Self-Represented
Respondent-Self-Represented
ENDORSEMENT
J. Mackinnon J.
Released: December 9, 2019