Fougere v. Fougere, 2011 ONCJ 693

Brampton Registry No. 1577/09 DATE: 2010·VIII·30 CITATION: Fougere v. Fougere , 2011 ONCJ 693 ONTARIO COURT OF JUSTICE BETWEEN: CARRIE-LYNN FOUGERE Applicant — AND — DARRELL BRUCE FOUGERE Respondent Before Justice Patrick W. Dunn Heard on 23 August 2011 Ruling on Applicant ‘s Motion (dated 15 August 2011) released on 30 August 2011 Ms. Barbara A. Barnett .......................................................................................... for the applicant Christopher J. Crowe, Esq. ................................................................................. for the respondent P.W.

DUNN, J.: [ 1 ] Carrie-Lynn Fougere, as applicant, brought a motion to change dated 16 August 2011, regarding the final consent orders of Justice Pawagi dated 1 April 2011. This motion has a first return date in assignment court on 29 September 2011. The respondent, Darrell Bruce Fougere, was opposed to the motion to change, and he requested that it be dismissed, and that this court order that the children be returned to the respondent. Ms. Fougere lived in Mississauga, and Mr.

Fougere resided in Sherbrooke, Quebec, at all relevant times. [ 2 ] The applicant also brought an emergency motion without notice dated 15 August 2011, which is presently before this court for disposition (the “emergency motion”). [ 3 ] On 24 February 2011, the parties executed a consent motion to change. It provided that the parties’ children, Liane Marie Fougere, born 2 December 1998, and Keith Bruce Fougere, born 26 September 2005, would reside with the respondent as of 24 February 2011, and Mr. Fougere was authorized to travel to Quebec with the children.

It also stipulated that “either party may return the matter on motion, prior to six months passing”. Final orders were issued in this regard by Justice Pawagi on 1 April 2011, which was five weeks after the parties signed the consent motion to change, with advice from duty counsel. [ 4 ] The emergency motion requested that the children continue to reside with the applicant at least until 31 August 2011, or the return of the motion, whichever occurs first.

It also sought a date for a hearing to deal with the issue of temporary custody. [ 5 ] The emergency motion first came before Justice Baldock in Chambers on 17 August 2011. Her Honour’s endorsement read: Applicant mother brings a motion to change a current order for custody. She seeks an urgent motion for interim custody. While the order consented to [i.e. that of Justice Pawagi dated 1 April 2011] does allow for a motion to be brought within six months, it does not specify that this court retains jurisdiction.

The children now have their residence with the respondent father in Quebec, pursuant to the terms of a final order. [i.e. that of Justice Pawagi dated 1 April 2011.] Therefore the proper jurisdiction is in Quebec, however Rule 5 of the Family Law Rules and

section 22(

b) of the Children’s Law Reform Act (the C.L.R.A .) provide grounds for bringing the matter in Ontario, provided that the applicant can establish that all the criteria have been met. There appears to be some urgency, given school registration etc. Order: Therefore leave is granted for the applicant to bring a motion on notice to be heard on the first date available …

Hence on 23 August 2011, I heard the applicant’s emergency motion to retain custody of both children and to enrol them in school in Mississauga. [ 6 ] Looking now at the parties’ court history and background, they did their original minutes of settlement on 28 Janaury 2010. The parties agreed that Ms. Fougere would have custody, and the respondent, access. Final orders were given to that effect on 28 January 2010 by Justice Dunn in this court. Mr.

Fougere maintained contact with the children in Ontario by coming from Sherbrooke to visit them. [ 7 ] Then as mentioned previously, on 24 February 2011, the parties did a consent motion to change (the final orders dated 28 January 2010 by Justice Dunn) to place the children in the respondent’s custody in Quebec, where Liane and Keith resided until 23 July 2011. While in Quebec, Mr. Fougere obtained Quebec health cards for the children, and enrolled them in Sherbrooke schools. [ 8 ] In July 2011, the parties discussed the children returning to Ontario during the summer for a vacation.

They signed the following agreement prepared by Mr. Fougere, who had some suspicion of the applicant’s intentions. Carrie Merrill and Carrie-Lynn Fougere are one and the same person: Agreement between Darrell Fougere (father) and Carrie Merrill (mother) for the kids’ vacation summer 2011. Darrell Fougere, the father who has custody of the children…gives access to the mother, Carrie Merrill, to see the kids for vacation and bring them to Toronto for the following dates. From July 23 rd 2011, until August 17 th 2011. And to bring them back to Ottawa.

Signed at Sherbrooke on July 23, 2011 (Signed) Darrell Fougere Carrie Merrill (Apparently the parties had agreed that the access exchange would be at Ottawa, which would have been a convenient half-way point between their residences.) [ 9 ] The applicant then decided that the children should not be returned to the respondent on 17 August 2011. She launched her motion to change dated 16 August 2011 in the Brampton Ontario Court of Justice. [ 10 ] By August 2011, the parties had conflicting positions on the children’s welfare: Ms. Fougere believed:

(1) Liane and Keith were unhappy living with the respondent and his wife in Sherbrooke and wished to stay with her, her partner and their infant son.

(2) The children have the greatest connection with Ontario, where they went to school until February 2011. Their friends, doctors and many relatives reside in this jurisdiction.

(3) The consent motion to change that lead to the final orders of 1 April 2011 was done on a temporary basis.

(4) The agreement on 23 July 2011 was entered under duress. The applicant claimed the respondent would not release the children unless she signed the agreement. It was Mr. Fougere’s position that:

(1) The children were doing well in his care;

(2) Liane was unnecessarily missing school when in the applicant’s custody in Ontario and Ms. Fougere failed to adequately attend to Keith’s dental needs.

(3) The children only needed a short period of adjustment in February 2011 to settle in Sherbrooke, but they did so successfully.

(4) The respondent conceded that the children had a long history in Ontario, but their most recent experiences were in Sherbrooke, where they also have teachers and doctors. Mr. Crowe submitted that on a balance of convenience, it would be just as appropriate for Quebec to exercise jurisdiction as Ontario. Many persons who could address the applicant’s current concerns about the children lived in Quebec.

(5) Mr. Fougere understood the 24 February 2011 consent motion to change to be final, which was what it was said to be. That was why he registered the children in school and applied for Quebec health cards for the children, rather than rely on Ontario cards, which he said he would have done if his custody was to be a temporary arrangement.

(6) The parties signed the consent motion to change on 24 February 2011, and they were assisted in the execution of the document by experienced duty counsel. The orders were not taken out until five weeks later on 1 April 2011. The delay was caused by the respondent serving Ontario Works with the “Confirmation of Assignment”. It was the respondent’s opinion that the applicant had five weeks before the final orders were taken out to voice opposition to any final orders being given.

Also in paragraph 12 of the respondent’s affidavit sworn 23 August 2011, he stated: Once I had received the response from the Ministry [about the Confirmation of Assignment], I forwarded all paperwork to the applicant and she herself filed the consent motion to change the final order. [ 11 ] Ms. Barnett argued that there has been a material change in circumstances since the final orders of Justice Pawagi on 1 April 2011, which would authorize this court to vary the 1 April 2011 orders, pursuant to

section 29 of the C.L.R.A . Ms. Barnett also urged that there was authority in this court to exercise its jurisdiction in accordance with subsection 22(1)(

b) of the C.L.R.A . Mr. Crowe’s position was to the contrary. He submitted that there had not been a material change in circumstances since the 1 April 2011 orders, and that subsection 22(1)(

b) of the C.L.R.A . was not authority for this court to grant the applicant’s request for custody. [ 12 ] With respect to the applicant’s argument that there has been a material change in circumstances since the 1 April 2011 final orders, I do not concur. Ms. Fougere’s allegations about Liane being unhappy in Sherbrooke and unwilling to return with her father, and not being well managed by Mr. Fougere were unsubstantiated. [ 13 ] Often children are upset when there are changes in their living arrangements, even on a temporary basis.

The applicant’s affidavit sworn 22 August 2011 had an exhibit A, a printed undated letter, allegedly from Liane, but was unsigned. The letter stated that the writer and Keith wanted to stay with the applicant in Mississauga. The letter’s providence was also questionable because it only appeared in this affidavit. Little weight should be placed on Liane’s intent as exhibited in this letter. [ 14 ] Turning to the applicant’s argument under

section 22 of the C.L.R.A ., Ms. Barnett acknowledged that the children were not habitually resident in Ontario in August 2011, because they had been living with the respondent since February 2011. However, counsel’s argument relied on subsection 22(1)(

b) of the C.L.R.A . It states: A court shall only exercise its jurisdiction to make an order for custody of…a child where, (

b) although the child is not habitually resident in Ontario, the court is satisfied: (

i) that the child is physically resident in Ontario at the commencement of the application for the order, (ii) that substantial evidence concerning the best interests of the child is available in Ontario, (iii) that no application for custody of or access to the child is pending before an extra-provincial tribunal in another place where the child is habitually resident, (iv) that no extra-provincial order in respect of custody of or access to the child had been recognized by a court in Ontario, (

v) that the child has a real and substantial connection with Ontario, and (vi) that, on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario. [ 15 ] Mr. Crowe made the following points: 1. The respondent did not apply for a custody order in Quebec, because he did not believe he needed one. He already had a final order in his favour from this court. 2. The respondent conceded that some substantial evidence concerning the children’s best interests was available in Ontario, and that the children have a substantial connection with that province.

However, the most recent evidence about their health and school performance and social activities was in Quebec. With children this young, data about the children’s welfare in the most recent five months of their lives can be compelling.

3. Of particular concern to the applicant was Keith’s comportment at school and injuries he may have caused to another child at his Sherbrooke school. That evidence could be obtained more readily in Sherbrooke, if a custody trial is to be held. The Children’s Lawyer in Quebec would be just as accessible an investigative agency as in Ontario, to determine the children’s views and preferences. 4. With reference to either party being able to return to court prior to six months after the final orders of 1 April 2011 (paragraph 7 in Justice Pawagi’s orders), Mr.

Crowe emphasized that the order did not specify whether a party was to return to an Ontario or Quebec court. 5. In the parties’ agreement dated 23 July 2011, the applicant explicitly acknowledged that she was having summer access (only) and that she would return the children to the respondent’s care on 17 August 2011. The applicant, in Mr.

Crowe’s opinion, was not showing good faith in rejecting the impact of the final consent orders of Justice Pawagi dated 1 April 2011, and in not honouring her written agreement to return the children on 17 August 2011. [ 16 ] I agree with the respondent’s position for the following reasons: 1. The applicant knew or ought to have known that she agreed on 24 February 2011 for a final order for the respondent to have custody. She had legal advice before she signed the consent motion to change, and she had five weeks to reconsider her position before the final orders were taken out on 1 April 2011. 2.

From 24 February 2011 up to 23 July 2011, the applicant acted as though the respondent had final custody. 3. The agreement of 23 July 2011 was a clear acknowledgement that the respondent had final custody, and that she was taking the children to Ontario for vacation purposes, and she agreed to return them to the respondent after summer access. The applicant’s argument that she only signed the agreement under pressure from the respondent was self-serving and with her experience in court documents and procedures, Ms. Fougere would be expected to understand the import of what she was signing. 4.

It would be rewarding the applicant’s self-help to allow her to keep the children after summer access in 2011. 5. Ms. Fougere is at liberty to bring a motion to change custody in the Quebec courts. In paragraph 35 of her affidavit sworn 22 August 2011, Ms. Fougere stated that she would be willing to pursue her claim for custody in a Quebec court. [ 17 ] In the result, the applicant’s emergency motion dated 15 August 2011, in Volume 3, Tab 4, is dismissed. 1.

Order that Carrie-Lynn Fougere, also known as Carrie Merrill, shall forthwith deliver Liane Marie Fougere, born 2 December 1998, and Keith Bruce Fougere, born 26 September 2005, to Darrell Bruce Fougere. Darrell Bruce Fougere is authorized to return these children to Sherbrooke, Quebec. 2.

Order that Peel Regional Police locate these named children, and apprehend them and return them to Darrell Bruce Fougere. [ 18 ] Because this court did not find that there has been a material change in circumstances since 1 April 2011, it is appropriate that the applicant’s motion to change dated 16 August 2011, in Volume 3, Tab 1 should also be dismissed and 29 September 2011 be vacated. The applicant may bring a fresh motion to change in Sherbrooke. 3. Order that the applicant’s motion to change dated 16 August 2011 is dismissed and 29 September 2011 as a return date in this court is vacated.

[ 19 ] Any request for costs to be made in a 14B Motion. [ 20 ] I thank both lawyers for their very careful presentations. Released: 30 August 2011 _________________________________ Justice P.W. Dunn