COURT FILE NO.: FC-12-912-5 DATE: 2019/07/23 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Kimberly Melissa Stewart, Applicant AND William Ndze Fuhgeh, Respondent

BEFORE: D. Summers J.

COUNSEL: Applicant, Self-Represented Respondent, Self-Represented

HEARD: April 18, 2019

COURT FILE NO.: FC-17-361 DATE: 2019/07/23

RE: Edith Marie Marielle Bernard, Applicant AND William Ndze Fuhgeh, Respondent

BEFORE: D. Summers J.

COUNSEL: Applicant, Self-Represented Respondent, Self-Represented

HEARD: April 18, 2019

Endorsement

Overview

[1] The applicants, Ms. Stewart and Ms. Bernard, each bring a motion for security for costs within the respondent, Mr. Fuhgeh’s, motions to set aside the orders made by Audet J. in their respective proceedings. The orders are dated December 18, 2017.

[2] The orders in question in Stewart v. Fuhgeh consist of a temporary order for supervised access and a final order for costs. The order in question in Bernard v. Fuhgeh is a final order made at an uncontested trial. In addition to other relief, she was awarded costs of $70,000. The orders were made on default when Mr. Fuhgeh formally withdrew from both proceedings and did not respond to the motion to change commenced by Ms. Stewart.

[3] Ms. Stewart seeks $30,000 as security for costs and Ms. Bernard seeks $80,000 as security for costs. In addition to his failure to pay costs, they claim that there is good reason to believe that his case is a waste of time or a nuisance and he does not have enough assets in Ontario to pay costs.

[4] Mr. Fuhgeh opposes their motions.

[5] For reasons that I will explain, the applicants’ motions are dismissed. My order is without prejudice to them renewing their motions or seeking other terms in any future family law proceedings involving Mr. Fuhgeh, if one or both of the orders are set aside.

The Background in Stewart v. Fuhgeh

[6] Ms. Stewart and Mr. Fuhgeh had an on again\off again relationship between 2009 and 2011. They never lived together. Their son, Joshua, was born February 14, 2012. He has always lived with his mother and had access with his father.

[7] Litigation began not long after Joshua’s birth. After a dozen or more court appearances and many temporary orders, the proceeding ended with the consent orders of Justice Roberston dated May 8, 2013 and May 9, 2013.

[8] The final order of Robertson J. did not end the conflict between the parties. Multiple court appearances followed and soon Mr. Fuhgeh commenced a motion to change. That proceeding resulted in the final consent order of Kershman J. dated January 20, 2014.

[9] Further motions followed during 2015.

[10] In August 2017, Mr. Fuhgeh commenced another motion to change. It is that proceeding that ultimately gave rise to the events that follow and this motion.

[11] This matter was joined with Bernard v. Fuhgeh by order of Audet J. dated October 4, 2017. She case managed both files.

[12] On November 27, 2017, Mr. Fuhgeh withdrew his motion to change alleging, among other things, that the various judges involved in his family law proceedings were biased.

[13] Audet J. sought to convene a telephone conference on both matters. Mr. Fuhgeh was copied on the correspondence and invited to participate notwithstanding his withdrawal. He immediately replied saying he did not wish to receive any further communication from Audet J. or counsel.

[14] The date of December 18, 2017 had previously been set aside for a day long motion. A decision was made to use this date to address the cost consequences of Mr. Fuhgeh’s withdrawal. Ms. Stewart alerted the court to her wish to vary access by way of her own motion to change and to have an interim motion heard on December 18, 2017. Mr. Fuhgeh did not respond to the originating process or her interim motion. That day, Audet J. ordered that Mr. Fuhgeh pay costs of $2,300 as a consequence of his withdrawal. She also granted a temporary order in Ms. Stewart’s motion to change providing for supervised access to Mr. Fuhgeh to be exercised at the mother’s discretion and in the best interests of the child. These are the orders that he now seeks to set aside.

[15] Mr. Fuhgeh has not exercised access nor has he paid the costs ordered.

Background in Bernard v. Fuhgeh

[16] The parties lived together for approximately 4 years between October 2012 and January 23, 2017 when they separated. Their only child, William Jr., was born on July 27, 2013. He will soon be 6 years old. He has always lived with his mother and had access with his father.

[17] This litigation began late in February 2017. The parties had four court appearances before a case conference was held. All related to an urgent motion sought by Mr. Fuhgeh that was ultimately heard by Audet J. on August 2, 2017.

[18] A case conference was held on September 6, 2017 before Audet J. She made disclosure orders and established time lines. She determined that case management was necessary and decided she would be the case management judge.

[19] Justice Sheard heard a contested motion and cross motion on custody and access. Her order dated November 21, 2017 provided that William Jr. would remain in his mother’s primary care on an interim, interim basis and spend alternate weekends and every Wednesday overnight in his father’s care.

[20] The next day Mr. Fuhgeh served his Notice of Withdrawal alleging bias and withdrew from access with William Jr.

[21] As a result of Mr. Fuhgeh’s withdrawal, he was noted in default and the case was scheduled to proceed on December 18, 2017 as an uncontested trial. As mentioned, that date had already been set aside for a day long motion in the matter. Mr. Fuhgeh was given notice of the hearing. He confirmed in writing that he was aware of the proceeding that day but he did not attend.

[22] On December 18, 2017, Audet J. made a final order providing Ms. Bernard with sole custody of William and supervised access to Mr. Fuhgeh. Access was to be at the mother’s discretion and in the best interests of the child. Police enforcement was ordered. Income of $50,000 was imputed to Mr. Fuhgeh and $461 in monthly child support was ordered effective December 1, 2017. Her order further provided for retroactive support of $4,050 and that the proceeds from the sale of Ms. Bernard’s home be released to her. Costs of $70,000 were ordered against Mr. Fuhgeh.

[23] Mr. Fuhgeh has not exercised access since November 2017. He has not paid the costs ordered and remains in arrears of child support.

Mr. Fuhgeh’s Motion to Set Aside the Orders of Audet J.

[24] In December 2018, Mr. Fuhgeh filed a Notice of Motion making various claims. He seeks the following orders:

1. Setting aside all notices of garnishment and final orders issued by Justice Audet in the underlying interim and interlocutory orders;
2. Disqualifying Sicotte Guilbault LLP, Marc J Coderre and Marie-Helene Godbout, as solicitors for the applicants and the responding parties’
3. Setting aside the order of Justice Audet appointing herself as case management judge;
4. Staying of the final orders issued by Justice Audet and the underlying interim and interlocutory orders;
5. Immediate access on a 50/50 basis of William Ndze Fuhgeh Jr. and Joshua Richard B. Ndze Fuhgeh, pick up and drop off at their school or during school holidays on a mutually agreed-upon location with absolute no contact between the mothers and Mr. Fuhgeh;
6. Disallowing costs between Ms. Bernard and her solicitors on one hand, and between Ms. Stewart and her solicitors on the other hand and reimbursement of all such costs by the solicitors to Ms. Bernard and Ms. Stewart; and
7. Costs of this motion payable by Mr. Coderre and Ms. Godbout to Mr. Fuhgeh forthwith.

Security for Costs – The Rule

[25] Rule 24(13) of the Family Law Rules, O.Reg 114/99 as am., sets out the factors that the judge must consider when asked to make an order for security for costs. The relief is discretionary and must be just in the circumstances. The rule states,

ORDER FOR SECURITY FOR COSTS

R. 24(13) A judge may, on motion, make an order for security for costs that is just, based on one or more of the following factors:

1. A party ordinarily resides outside Ontario.
2. A party has an order against the other party for costs that remains unpaid, in the same case or another case.
3. A party is a corporation and there is good reason to believe it does not have enough assets in Ontario to pay costs.
4. There is good reason to believe that the case is a waste of time or a nuisance and that the party does not have enough assets in Ontario to pay costs.
5. A statute entitles the party to security for costs.

[26] Sub-rules (15) and (16) state the effect of an order for security and the consequences of non-compliance.

EFFECT OF ORDER FOR SECURITY

R. 24(15) Until the security has been given, a party against whom there is an order for security for costs may not take any step in the case, except to appeal from the order, unless a judge orders otherwise.

FAILURE TO GIVE SECURITY

R. 24(16) If the party does not give the security as ordered and, as a result, a judge makes an order dismissing the party’s case or striking out the party’s answer or any other document filed by the party, then sub rule (15) no longer applies.

Unpaid costs orders

[27] Ms. Stewart and Ms. Bernard rely on the grounds set out in sub-paragraphs 2 and 4 under Rule 24 (13) of the Family Law Rules. Both are owed costs by Mr. Fuhgeh and neither have received any payments against the amount ordered. Each says she has endured financial hardship and undue stress dealing with what seems like unending litigation. Each says the impact of the litigation is contrary to the best interest of their child. They argue that Mr. Fuhgeh is impecunious and without assets in Ontario to satisfy costs orders. They say they are without hope that they will ever be paid.

[28] Mr. Fuhgeh admits that he has not paid the costs and further admits that he is impecunious. The evidence before the court confirms that he earns minimal income as a practicing lawyer. His 2016, 2017 and 2018 income tax returns disclose income of ($174.40), $2,820, and $8,011 in those years respectively. According to his financial statement, he rents his home, owns a thirteen year old vehicle and has significant debt. Based on the record before me, I conclude that Mr. Fuhgeh does not own enough assets in Ontario to satisfy a cost award. This finding relates to sub-paragraph 4 of r. 24(13).

[29] Ms. Stewart and Ms. Bernard need to meet only one factor to bring themselves within the rule. Clearly they have done so, however, that is not enough. The rules requires that the order must be just. Mr. Fugheh argues that an order for security for costs would not be just.

Is there good reason to believe that Mr. Fuhgeh’s motions are a waste of time or a nuisance?

[30] Both Ms. Stewart and Ms. Bernard say that Mr. Fuhgeh’s motions are a waste of time and a nuisance. They say the motion is nothing other than an attempt to re-litigate matters that he either chose not to pursue or defend by withdrawing. They say it was his choice to allow the cases to proceed on default and despite full knowledge of the hearings on December 18, 2017, he chose not to attend and further chose to wait a year before bringing his motion to set aside the orders. The mothers see him as a vexatious litigant using his knowledge of the law and procedure to wear them down by creating undue cost and stress. They point to multiple court appearances, his repeated failures to comply with disclosure orders, his failure to pay the costs and his mounting child support arrears.

[31] Mr. Fuhgeh’s affidavit includes allegations of fraudulent misrepresentation against Ms. Stewart, Ms. Bernard and her lawyers, Mr. Coderre and Ms. Godbout. He also makes allegations that Audet J. was biased against him because of her past personal and professional relationship with counsel. He alleges the existence of a business plan between Ms. Godbout and Audet J. prior to her appointment to the bench in May, 2017 and further argues that the sale of Audet J.’s law practice to the firm where counsel practice is a conflict of interest. He says these alleged circumstances should have been disclosed.

[32] Mr. Fugheh argues that he must be permitted to present these claims to the court. He says an order requiring him to post security for costs would stifle him and thus be an unjust order. Because of his inability to pay, it would operate as a stay and prevent him from raising his concerns before the court. Access to justice, he says, should not be an economic issue and refers to Cromwell J.A’s decision, as he then was, in 679927 Ontario Ltd. V. Wall. There, Cromwell J.A. summarized a line of cases as recognizing “that the courts must be cautious so as not to turn the power to order security for costs into the imposition of a means test for access to the courts.” He further stated,

“The importance of this principle is recognized in Kropp v. Swanset, [1997] 4 W.W.R 306 (C.A.), a case relied on by this court in Motun, supra. In Kropp, Finch J.A., for the Court, para 16, approved this statement by Megarry, V.C. in Pearson v. Naydler, [1997] 3 All E.R.

The basic rule that a natural person who sues will not be ordered to give security for costs, however poor he is, is ancient and well-established… The power to require security for costs ought not to be used so as to bar even the poorest man from the courts… (emphasis added).”

[33] Cromwell J.A.’s statements were made, however, in relation to the tension that can exist between two fundamental values in our court system. The first is that everyone should be able to have their day in court. The second is that defendants should have reasonable protection from claims without merit. How to balance these values can be a consideration on a security for costs motion.

[34] The tension between these values exists here. The record in both matters confirms a long and arduous litigation history and it appears that many steps were taken by Mr. Fuhgeh unnecessarily. His conduct, however, is not the issue here. What I must consider is the merit of Mr. Fuhgeh’s motion to set aside in relation to r. 24(13) (4) and whether that proceeding is a waste of time. It is not for me to consider the merits of his case if the orders are set aside.

[35] Mr. Fuhgeh’s motion leads to a consideration of the factors set out in r. 25(19) of the Family Law Rules. Although the rules does not expressly say so, it has been held to be authority to set aside orders. See Gray v. Gray 2017 ONCA 100. The rule states that a court may, on motion, change an order that

(a) was obtained by fraud; (b) contains a mistake; (c) needs to be changed to deal with a matter that was before the court but that it did not decide; (d) was made without notice; or (e) was made with notice, if an affected party was not present when the order was made because the notice was inadequate or the party was unable, for a reason satisfactory to the court, to be present.

[36] The Court of Appeal in Mountain View Farms Ltd. v. McQueen, 2014 ONCA 194, sets out five factors to be considered by the court in the exercise of its discretion to set aside a default order:

1. Whether the moving party moved promptly after learning of the default judgment;
2. Whether the moving party has a plausible explanation for the failure to respond and comply with the Rules;
3. Whether the facts establish that the moving party has an arguable case on the merits;
4. What is the potential prejudice to the moving party if the default order is not set aside and what is the potential prejudice to the other party if the order is set aside;
5. What is the effect of the order made by the court on the overall integrity of the administration of justice.

[37] I cannot, on the record before me, assess the merits of Mr. Fuhgeh’s motions to determine whether they are a waste of time. His allegations of fraud, a concealed conflict of interest and bias are serious and touch on the administration of justice. They may engage r. 25(19)(a) and subparagraph 5 above. At this stage, Mr. Fuhgeh’s accusations against counsel are unchallenged. The mothers can only respond to the accusations directed at them personally. It is essential that Mr. Coderre and Ms. Godbout have the opportunity to put their evidence before the court. They have been added as parties and retained counsel.

[38] I am not without concern for the situation that the applicant mothers find themselves in, however, until the public interest component of the case is addressed, they are caught in the middle. It is for that reason that my order dismissing their motions for security for costs is without prejudice to them renewing their motions or seeking other relief once the outcome of the motion to set aside is known.

[39] Costs are reserved in the cause in the motion to set aside.

D. Summers J. Date: July 24, 2019

COURT FILE NO.: FC-12-912-5 DATE: 2019/07/24 ONTARIO SUPERIOR COURT OF JUSTICE

RE: Kimberly Melissa Stewart, Applicant AND William Ndze Fuhgeh, Respondent

BEFORE: D. Summers J.

COUNSEL: Applicant, Self-Represented Respondent, Self-Represented

COURT FILE NO.: FC-17-361 DATE: 2019/07/24

RE: Edith Marie Marielle Bernard, Applicant AND William Ndze Fuhgeh, Respondent

BEFORE: D. Summers J.

COUNSEL: Applicant, Self-Represented Respondent, Self-Represented

ENDORSEMENT D. Summers J. Released: July 24, 2019