Court File and Parties

COURT FILE NO.: FC-12-912-5 DATE: 2020/08/10 SUPERIOR COURT OF JUSTICE – ONTARIO RE: KIMBERLY STEWART, Applicant AND: WILLIAM NDZE FUHGEH, Respondent COUNSEL: Self-Represented Applicant Self-Represented Respondent HEARD: In Writing

COURT FILE NO.: FC-17-361 DATE: 2020/08/10 SUPERIOR COURT OF JUSTICE – ONTARIO RE: MARIE MARIELLE EDITH BERNARD, Applicant AND: WILLIAM NDZE FUHGEH, Respondent MARC CODERRE, Intervenor MARIE HELENE GODBOUT, Intervenor COUNSEL: Self-Represented Applicant Self-Represented Respondent Ms. Sack for the Intervenors HEARD: In Writing

Costs Endorsement

[1] I ordered the parties to provide their costs submissions by specific dates and limited the costs submissions to three pages plus a detailed Bill of Costs.

[2] I have received the costs submissions from all parties except Ms. Stewart.

Failure of Mr. Fuhgeh to Comply with the Three-Page Limit of Costs Submissions

[3] All parties complied with the schedule to file their submissions and the page restrictions of the submissions except Mr. Fuhgeh. He provided his costs submissions on July 21, 2020, one day late and they exceeded the three-page limit by filing excerpts from transcripts of conferences in this matter totalling 44 additional pages. Then on July 27, 2020, Mr. Fuhgeh filed more documentation, including outstanding bills and notice of assessments, all without any accompanying submission. These documents were simply filed without explanation.

[4] Counsel for the Intervenors submit that the Court should not consider any documentation filed by Mr. Fuhgeh that exceed the three-page limit on submissions. This issue has arisen in other cases such as in Diamond v. Berman, 2020 ONSC 4301, Kalkanis v. Kalkanis 2014 ONSC 205 and Brown v. Baum 2015 ONSC 2483. In all these cases, the Court disregard any documentation file that exceeded the basic page limit.

[5] The court process must be transparent and fair to all. Court orders are not suggestions and are intended to be followed. Failure to follow a court order must have implications. In this case, Ms. Bernard and the Intervenors followed the court order. On the other, Mr. Fuhgeh ignored the page limitation when he filed documentation on July 22 and July 27, 2020 that exceeded the three-page limit. This blatant disregard for a court order cannot be condoned by the court. The result is that I will disregard the documentation that exceeded the three-page limit.

Position of the Parties

[6] Ms. Bernard requests costs in the amount of $1245. Ms. Bernard submits that Mr. Fuhgeh is a self-proclaimed successful lawyer, intentionally defied the court’s authority by not following the roadmap ordered on February 25, 2019, and as such his behavior should not be condoned. Further, she submits that Mr. Fuhgeh’s behavior amounts to vexatious behavior that runs counter to the principles of the Family Law Rules and that he should not be permitted to continue with his motion until he pays the costs related to this endorsement.

[7] The Intervenors seek full recovery costs of $10,056.44, inclusive of HST and disbursements. Ms. Sack, counsel for the intervenors, submits that her clients were successful and are presumptively entitled to costs. She further submits that the conduct of Mr. Fuhgeh amounts to an abuse of process by bringing proceedings that are unfair to the point that they run contrary to the interests of justice, are oppressive and vexatious.

[8] Ms. Sack argues that Mr. Fuhgeh did not disclose in October 24, 2019 his intention to seek to set aside/stay 12 orders; 9 of which were interlocutory. The first time he raised the issue was on November 25, 2019. Further, in the Stewart matter, Mr. Fuhgeh sought to move to set aside orders of Justice Robertson and Justice Kershman. In the Bernard matter, Mr. Fuhgeh moved to set aside 4 orders of Justice Audet that he appealed and discontinued. Ms. Sack submits that Mr. Fuhgeh’s conduct flies in the face of his obligation, as a lawyer, to respect and promote the basic principles of the Family Law Rules. Consequently, Ms. Sack submits that a severe response from the Court on the issue of costs is warranted.

[9] Mr. Fuhgeh argues that there should be no order as to costs. Mr. Fuhgeh submits that costs are equitable and discretionary relief and that a litigant who seeks discretionary relief from the court must come to the Court with “clean hands”. He submits that costs must be fair and reasonable and that the financial situation of the parties can be taken into account in setting the amount of costs. Mr. Fuhgeh submits that the court breached the principles of natural justice, section 7 and 15 of the Canadian Charter of Rights and Freedoms, and alleges discrimination based on race. Further, he submits that the Court assumed the position of advocate for his opponents. He requested I recuse myself and that there has been a miscarriage of justice, breach of natural justice and abuse of judicial authority by me. Based on those factors, he submits that there should be no order as to costs. Alternatively, he submits that costs should be awarded in the amount of $250 for the case conference.

Legislative and Jurisprudential Framework

[10] Rule 24(1) of the Family Law Rules provides that the successful party is presumptively entitled to their costs.

[11] In Mattina v. Mattina, 2018 ONCA 867, the court set out the four fundamental purposes of costs, which are to partially indemnify successful litigants, to encourage settlement, to discourage and sanction inappropriate behaviour by litigants and to ensure that cases are dealt with justly.

[12] In Beaver v. Hill, 2018 ONCA 840, the court indicated that costs awards are discretionary and two important principles in exercising discretion are reasonableness and proportionality.

[13] Family law litigants are responsible and accountable for the positions they take in the litigation (see Heuss v. Surkos, 2004 CarswellOnt 3317, 2004 ONCJ 141).

Successful Party

[14] I find that Ms. Bernard and the Intervenors were successful in requiring Mr. Fuhgeh to serve and file a replacement notice of motion in accordance with the restricted scope of his motion and file a replacement affidavit to comply with my case management Endorsement dated February 25, 2019. I find that Ms. Bernard and the Intervenors are entitled to costs.

Importance and Complexity of the Issues Before the Court

[15] I find that the issues in this motion were not complex but were important. The issue of the scope of Mr. Fuhgeh’s claim for relief in his notice of motion as well as the required compliance of Mr. Fuhgeh to my February 25, 2019 Case Management Endorsement was very important to all of the parties.

The Reasonableness or Unreasonableness of Each Party’s Behaviour

[16] I have found that Mr. Fuhgeh’s behavior in the scope of the orders that he sought to set aside as well as his affidavit dated April 26, 2019 amounted to an abuse of process.

[17] I found that Mr. Fuhgeh’s request to move to set aside the order of Justice Kershman to be a waste of the court’s time and also to be abusive. I refused Mr. Fuhgeh permission to move to seek to set aside the final order of Justice Robertson when he had appealed it and the appeal was dismissed by the Divisional Court.

[18] In the Bernard matter, while Mr. Fuhgeh could proceed to move to set aside the final order of Justice Audet dated December 17, 2018, I did not permit him to seek to set aside any of the interim or interlocutory orders. I found that to allow Mr. Fuhgeh to move to set aside the orders that he appealed and then discontinued the appeal would amount to an abuse of process.

[19] On the issue of Mr. Fuhgeh’s affidavit dated April 26, 2019, I found that Mr. Fuhgeh’s attempt to incorporate, by reference, over 2000 pages of exhibits from his original affidavit was an abuse of process. I found that Mr. Fuhgeh was attempting to do indirectly what I specifically and directly ordered him not to do. I found that his action was an abuse of process.

Lawyers’ Rates

[20] Ms. Bernard seeks costs as a self-represented litigant in the amount of $50 per hour. Self-represented litigants are entitled to receive reasonable costs. (see Fong v. Chang). I find that Ms. Bernard is entitled to receive a reasonable hourly rate of $50 per hour.

[21] I have reviewed the hourly rates for the four lawyers acting as counsel for the Intervenors and I find the rates to be reasonable based on their respective year of call to the Bar behind the picture that.

Time Properly Spent and Expenses Properly Payable

[22] My role in assessing costs is not necessarily to reimburse the litigant for every dollar spent on legal fees, but the award of costs must be fixed in an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceedings (see Boucher v. Public Accountants Council for the Province of Ontario, 2004 71 O.R. (3d) 291 (C.A.)).

[23] Ms. Bernard’s Bill of Costs indicates that she spent 24.25 hours while the intervenors Bill of Costs indicates that they spent 28.10 hours preparing for and attending all proceedings from the October 24, 2019 case conference up to and including preparing their costs submissions dated July 6, 2020.

[24] Mr. Fuhgeh did not provide a Bill of Costs to allow the court to compare his Bill of Costs to the hours requested by the intervenors and Ms. Bernard. I draw an adverse inference against Mr. Fuhgeh. I conclude that he spent at least as many hours as Ms. Bernard and the Intervenors. Consequently, I find the time spent by Ms. Bernard and the Intervenors to be a reasonable expenditure of time in relation to the issues before the court.

[25] Mr. Fuhgeh submits that it is unreasonable to have four lawyers act for the Intervenors. Having reviewed the Intervenors Bill of Costs, I agree with Ms. Sack, that the three junior lawyers worked on different assignments to save costs. The junior lawyers charged a lower hourly rate than Ms. Sack. I dismiss Mr. Fuhgeh’s submission that this was unreasonable.

Any Other Relevant Factor

[26] Mr. Fuhgeh raises the issue of a party’s financial circumstances as being a relevant consideration. I agree but an unsuccessful party’s limited ability to pay may not be used to shield that party from a liability for costs, particularly when a party has acted unreasonably. (See Gobin v. Gobin, 70 R.F.L.(6th) 209). However, Mr. Fuhgeh’s costs submissions do not specifically address his ability or inability to pay or provides no argument as to what the Court should consider in assessing his ability to pay the costs requested.

[27] I dismiss Mr. Fuhgeh’s submission that a litigant who seeks discretionary relief from the court must come to the court with “clean hands”. I agree with the submission of Ms. Sack that the factors set out in Rule 24 of the Family Law Rules provide a complete framework for the court to exercise its discretion in awarding costs. There is no need to rely principles of equity.

[28] I dismiss Mr. Fuhgeh’s submission that I failed to recuse myself. In Mr. Fuhgeh’s submissions on the motion, it contained a request that I recuse myself, but no formal motion was brought. If Mr. Fuhgeh sought that relief, he was required to raise it as part of the case management process so that a date could be set, exchange of pleadings would be permitted and that the process would be fair to both parties. This process was not followed. Consequently, this issue was not before the Court.

[29] I dismiss Mr. Fuhgeh’s submission that I treated Mr. Fuhgeh and his requests and submissions differently from the other parties and that I am an advocate of Ms. Bernard, Ms. Stewart and the Intervenors. The Court’s role through the case management process is to streamline this proceeding so that it can proceed in an efficient and orderly manner. Unfortunately, the attempt by Mr. Fuhgeh to disregard the orders contained in my Amended Case Management Endorsement of February 25, 2019, has interfered with this process. The Court’s role is to ensure that the process is fair.

Disposition

[30] I find that Mr. Fuhgeh has engaged in a course of conduct to attempt to complicate and unnecessarily expand the scope of the current litigation. I find that Mr. Fuhgeh has engaged in conduct that amounts to an abuse of process.

[31] I order Mr. Fuhgeh to pay to Ms. Bernard, forthwith, the sum of $950 inclusive of HST and disbursements.

[32] I order Mr. Fuhgeh to pay to the intervenors, forthwith, the sum of $8500 inclusive of HST and disbursements.

Released: August 10, 2020

COURT FILE NO.: FC-12-912-5 DATE: 2020/08/10 SUPERIOR COURT OF JUSTICE – ONTARIO RE: Kimberly Stewart, Applicant AND William Ndze Fuhgeh, Respondent COUNSEL: Applicant Self-Represented Respondent Self-Represented

COURT FILE NO.: FC-17-361 DATE: 2020/08/10 RE: Marie Marielle Edith Bernard, Applicant AND William Ndze Fuhgeh, Respondent Marie Helene Godbout, Respondent Marc Coderre, Intervenor Marie Helene Godbout, Intervenor COUNSEL: Applicant Self-Represented Respondent Self-Represented Intervenors, Ms. Sack

ENDORSEMENT Shelston J.

Released: August 10, 2020