SUPERIOR COURT OF JUSTICE

FAMILY COURT

BETWEEN:

MARIE MARIELLE EDITH BERNARD

Applicant

-AND-

WILIAM NDZE FUHGEH

Respondent

RULING

BEFORE THE HONOURABLE JUSTICE ROGER on November 15, 2017 in OTTAWA, Ontario.

APPEARANCES:

M-H. Godbout & M. Coderre Counsel for Marie Marielle Edith Bernard

W. Fuhgeh In Person

WEDNESDAY, NOVEMBER 15, 2017

R U L I N G

ROGER, J. (Orally):

I’ve written a decision dealing with this matter. I will read it out simply for purposes of assisting the parties in reading my handwriting.

The Respondent brings a motion seeking to Stay three Orders of Judge Audet dated August 3, September 6 and September 13, 2017. He also seeks an Order consolidating the notices of motion seeking leave to appeal and costs of the motion. For the following reasons the motion for a Stay is dismissed, in part, and the motion to consolidate is dismissed.

Rule 63 is applicable to the Stay. I find that the delivery of a notice seeking leave to appeal had the same triggering effect under this rule as would a notice of appeal. Rule 63 contemplates interlocutory orders and those are appealed by a motion seeking leave.

The Order of September 13, 2017 is only for the payment of money and therefore there is an automatic stay of that Order under Rule 63.01, however, for the other two Orders the Respondent has not established any serious issue to be decided, irreparable harm or balance of convenience.

The Orders of August 3 and September 6 were mostly procedural orders. In her decisions, Judge Audet considered all relevant facts.

The Respondent has not demonstrated a serious question on whether there is good reason to doubt the correctness of her decisions nor has he demonstrated conflicting cases. His affidavit of October 3, 2017 does not at all establish either irreparable harm if the Stay is refused nor does it establish that the balance of convenience favours the Respondent if the Stay is refused.

On the issue of consolidation, it is not clear where jurisdiction is as Rule 6 deals with actions and applications. Nonetheless, I will assume that I have such jurisdiction as the Rules of Civil Procedure and the Family Law Rules are broad and both seek to do what is just. However, I do not see how consolidation of these various leave to appeal would serve the interests of justice.

Although the parties are the same and although the overarching issues are related, these are separate orders that will raise distinct questions for purposes of the leave to appeal.

I see no benefit in ordering consolidation; rather I see confusion arising therefrom.

Consequently: (1) The Respondent’s motion for a Stay of the Orders of Judge Audet, dated August 3, 2017 and September 6, 2017 is dismissed.

(2) The Respondent’s motion for a Stay of the Order of Judge Audet, dated September 13, 2017 is granted. That Order is stayed pending a decision on the leave to appeal and, if applicable, appeal.

(3) The Respondent’s motion seeking to consolidate the motions for leave to appeal is dismissed.

On the issue of costs?

SUBMISSIONS BY APPLICANT AND RESPONDENT...

THE COURT: So on the issue of costs, the Respondent argues divided success, that this was not a complicated motion nor that we did not need two lawyers or nor that the Applicant did not need two lawyers to attend on the motion. He argues that, in any event, $1,000.00 dollars would be a reasonable amount; I disagree.

The Applicant was successful overall on this motion. This motion was important and the first two Orders were clearly the most important. Although one lawyer would have been sufficient for the Applicant to argue this motion the amount sought by the Applicant is so reasonable that it already accounts for the divided success and for the fact of two lawyers appearing on this motion. $3,500.00 dollars is a reasonable amount for this motion but is as well fair and within the reasonable contemplation or expectations of the parties.

The Applicant responded to this motion and prepared helpful materials which no doubt far exceeded that amount.

On a partial indemnity basis allowing for the divided success and even allowing only for one lawyer attending for the Applicant, $3,500.00 dollars is reasonable, fair and proportionate. Therefore, the cost of this motion are fixed in the all inclusive amount of $3,500.00 dollars payable by the Respondent to the Applicant within the next 90 days.

MR. CODERRE: Thank you very much Your Honour.

MS. GODBOUT: Thank you Your Honour.

THE COURT: Thank you and good luck. I have to say and I know this will fall on deaf ears and so part of me wonders why I say it but there’s always hope. This case is going in the wrong direction for many reasons. It’s procedurally spinning its wheels uselessly and this would be obvious, I think this would be obvious to anybody who looked reasonably at this file. I appreciate the parties may not be able to look at it reasonably but I would ask that they calmly assess what they are doing, the merits of what they are doing and that they change tactic. Correct. That they take a trajectory from now on that we’ll see this case resolve. Remember the Family Rules require that we deal with cases fairly, justly and expeditiously. And that is an obligation that falls not just on us judges but that falls on the parties as well. The parties whether or not they are self-represented or whether or not they have lawyers, they have obligations to help us deal with cases fairly, justly and expeditiously. Spinning your wheels on procedural issues, procedural appeal relating to disclosure and so on is a useless exercise on any day. So I would hope that people will focus on their obligations. Their obligations are to make these processes as streamlined as possible. Everybody has a role to play in making these Family Law proceedings proceed as cheaply and as effectively and as fairly as possible and when we see papers, files that are contained in boxes and when we see motions that should not have been brought frankly except for the third part which maybe would have been agreed if only the third order had been brought; I don’t know, you have to ask yourself, what’s the point? So that’s my message to the parties. I guess it’s a little bit of venting because we are stuck on the recipient end of these motions; fine we’ll deal with them but we’ll deal with costs, correct. And I’ve made my costs order and it’s a fair Order Mr. Fuhgeh and I will say that if they had asked more I would have ordered more, a lot more. All right. Thank you.

M O T I O N C O M P L E T E D