Court File and Parties

Court File No.: FC-12-912-5 Date: 2020/12/02 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: 2020/12/02 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

Amended Endorsement

The text of the original Endorsement of June 17, 2020 was corrected on December 2, 2020 at paras. 50 & 79 and the explanation of the correction is appended.

Overview

[1] This endorsement addresses three issues that are raised in this litigation:

a) should Mr. Fuhgeh be permitted to move to set aside interim and interlocutory orders made prior to the final uncontested trial decision of Justice Audet involving Ms. Bernard (“the Bernard proceedings”);

b) should Mr. Fuhgeh be permitted to move to set aside two final orders made in 2013 and 2014 involving Ms. Stewart (“the Stewart proceedings”); and

c) should the court strike all or part of Mr. Fuhgeh’s affidavit dated April 26, 2019?

[2] On December 18, 2018, I assumed case management of this proceeding. On November 21, 2019, I conducted a case management conference to address the scope of the relief being sought by Mr. Fuhgeh, concerns raised about Mr. Fuhgeh’s affidavit dated April 26, 2019 and set a timetable for the exchange of pleadings to be completed by December 20, 2019. I received the pleadings by that date.

[3] In February 2020, Mr. Fuhgeh advised the trial coordinator’s office that he would be out of the country until the end of March as a result of an illness in his family. On March 15, 2020, the normal operations of the Superior Court were suspended. The only matters that have proceeded since that time are urgent motions. Pursuant to a notice dated June 1, 2020, the court is now accepting motions to be heard on or after August 10, 2020.

Litigation Background

[4] Mr. Fuhgeh has two children involved in the litigation between himself and the two mothers. Mr. Fuhgeh has a child with Ms. Bernard and another child with Ms. Stewart.

[5] On December 18, 2017, Justice Audet conducted an uncontested trial between Ms. Bernard and Mr. Fuhgeh, who had withdrawn his answer on November 21, 2017. The final order granted the following relief:

a) custody of the child named William Ndze Fuhgeh Junior was granted to Ms. Bernard;

b) Mr. Fuhgeh was granted supervised access to the child;

c) imputed Mr. Fuhgeh with an annual income of $50,000;

d) ordered Mr. Fuhgeh to pay $461 per month as table child support;

e) ordered Mr. Fuhgeh to pay the arrears of child support in the amount of $4050 that accumulated from March 1, 2017 to March 30, 2017 forthwith;

f) ordered that the net proceeds of sale of Ms. Bernard’s home being held in trust be released to Ms. Bernard;

g) ordered Mr. Fuhgeh to transfer his interest in a motor vehicle to Ms. Bernard;

h) ordered Mr. Fuhgeh to pay Ms. Bernard costs fixed the amount of $70,000 inclusive of disbursements, negative equity and HST. The cost award was inclusive of all cost awards previously made by the court and replaces them all; and

i) ordered that the amount of $50,000 of the cost award be deemed support and shall be enforced forthwith by the Family Responsibility Office.

[6] In the Stewart matter, on December 18, 2017, Justice Audet made two orders as follows:

a) Mr. Fuhgeh had brought a motion to change the final order of Justice Kershman dated January 21, 2014 regarding access and child support. On November 21, 2017, Mr. Fuhgeh filed a notice of withdrawal. Ms. Stewart sought her costs in replying to Mr. Fuhgeh’s motion to change. Justice Audet ordered Mr. Fuhgeh to pay Ms. Stewart $2300 payable forthwith.

b) Ms. Stewart had brought her motion to change the final order of Justice Kershman to change the access provisions. A case conference was set for December 18, 2017. Mr. Fuhgeh was aware of the case conference and filed a confirmation form confirming he did not intend to participate in the preceding. Ms. Stewart had filed a notice of motion and affidavit returnable to the case conference alleging serious concerns about the safety of her child. Justice Audet made a temporary order that Mr. Fuhgeh have supervised access to his child at Ms. Stewart’s discretion, ordered police enforcement and reserved costs to the judge hearing the final motion. Finally, she ordered that the matter would proceed to a further case conference at a date to be scheduled through the trial coordinator’s office.

[7] Mr. Fuhgeh did not attend or participate in either proceeding and did not appeal either decision.

Mr. Fuhgeh’s Motion to Set Aside

[8] On December 3, 2018, Mr. Fuhgeh filed a notice of motion in the Bernard matter and Stewart matter returnable January 8, 2019 seeking various claims for relief including the setting aside of the trial decision of Justice Audet dated December 18, 2017, the temporary order of Justice Audet regarding the child Joshua dated December 18, 2017, the setting aside of his withdrawal of his motion to change in the Stewart matter and all associated cost orders.

[9] In support of such relief, Mr. Fuhgeh filed an affidavit and exhibits totaling 2189 pages seeking various claims for relief being:

a) setting aside all notices of garnishment and final orders issued by Justice Audet, and underlying interim and interlocutory orders;

b) disqualifying Sicotte Guilbault LLP, Marc Coderre and Marie Helene Godbout as solicitors for the applicants and the responding parties;

c) setting aside the order of Justice Audet appointing herself as case management judge;

d) staying the final orders issued by Justice Audet and the underlying interim and interlocutory orders;

e) immediate access on a 50/50 basis of William Ndze Fuhgeh Jr. and Joshua Richard B. Ndze Fuhgeh, pickup and drop off at their school, or during school holidays, at a mutually agreed-upon location with absolutely no contact between mothers and Mr. Fuhgeh;

f) 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

g) costs of this motion payable by Mr. Coderre and Ms. Godbout to Mr. Fuhgeh forthwith.

[10] On December 18, 2018, I assumed case management responsibility in this matter. At that time, I adjourned Mr. Fuhgeh’s motion returnable on January 8, 2019, assumed case management of this proceeding, granted Mr. Fuhgeh leave to proceed on January 4, 2019 for a temporary order to stay the applicant’s application to change William’s name and directed the parties to contact the trial coordinator to set a date before me to determine a schedule of future proceedings.

[11] Mr. Fuhgeh commenced the proceeding against Ms. Bernard and the Registrar General, seeking an order prohibiting the application and granting of a name change of his child William. On January 4, 2019, Justice Williams granted a temporary order staying the processing of any such application pending further order of this court.

[12] On February 20, 2019, I conducted a case management conference dealing with the issues raised in the proceedings. I addressed the 2189-page affidavit filed by Mr. Fuhgeh, who admitted that the affidavit needed editing. Further, Mr. Fuhgeh made allegations seeking costs against Mr. Coderre and Ms. Godbout, previous counsel of record for Ms. Bernard and Ms. Stewart, alleging fraud and misrepresentation. At that time, both counsel had not retained legal representation.

[13] I released an Amended Case Management Endorsement dated February 25, 2019, where I provided a litigation timetable. In the Bernard v. Fuhgeh, FC-17-361 matter I ordered the following:

a) Mr. Fuhgeh shall prepare, serve and file a new affidavit in FC 17-361 by April 26, 2019, which will canvas the following issues:

i. the period of December 18, 2017 to December 3, 2018, specifically setting out the circumstances when Mr. Fuhgeh had knowledge of the order of Justice Audet and efforts made by him once he became aware of the existence of the order until he filed his materials on December 3, 2018, with supporting documentary evidence;

ii. what evidence contained in the affidavit of Ms. Bernard at Tab 4 of Volume 10 of the Continuing Record filed before Justice Audet at the uncontested trial was fraudulent and why;

iii. he shall prepare a chart setting out the evidence that he has in order to prove his allegations of fraud; and

iv. he shall include a transcript of the hearing before Justice Audet.

b) Ms. Bernard shall prepare, serve and file a reply affidavit by June 21, 2019;

i. the affidavit shall not exceed 30 pages plus exhibits; and

ii. the affidavits shall comply with the formalities required under the Family Law Rules regarding spacing and font size.

[14] In the Stewart matter FC-12-912-5, I also provided a litigation timetable including limiting the length of any affidavit to 10 pages plus exhibits and directed that Mr. Fuhgeh’s affidavit should set out the reasons to set aside the order of Justice Audet dated December 18, 2017, and to withdraw his notice of withdrawal filed on November 21, 2017.

[15] At the conference, Mr. Fuhgeh proposed the questioning of Ms. Bernard, Ms. Stewart, Mr. Coderre and Ms. Godbout. At that time, I indicated I would reserve that issue until the lawyers had retained counsel. I granted Ms. Bernard and Ms. Stewart leave to bring a motion for security for costs against Mr. Fuhgeh.

[16] On April 26, 2019, Mr. Fuhgeh filed his affidavit with his exhibits totaling 287 pages.

[17] On June 20, 2019, Ms. Bernard filed Notice of Motion to an unspecified date and an affidavit in reply to Mr. Fuhgeh’s April 26, 2019 affidavit, and sought to strike specific paragraphs of Mr. Fuhgeh’s affidavit dated April 26, 2019.

[18] In the intervening period, Mr. Coderre and Ms. Godbout retained Ms. Sack as counsel. On June 28, 2019, I conducted a case management conference by teleconference with Ms. Bernard, Mr. Fuhgeh and Ms. Sack. Ms. Stewart did not participate in the call. During that call, Mr. Fuhgeh and Ms. Bernard consented to the two lawyers being added as parties in Mr. Fuhgeh’s motion to set aside the orders of Justice Audet. I added the lawyers as parties to the respondent’s motion. I indicated that until Justice Summers’ decision on security for costs had been released, the matter could not proceed.

[19] I indicated that if neither party appealed the decision of Justice Summers and the motion for security for costs was dismissed, I would determine a timetable to advance this litigation. I ordered that a further telephone conference call be scheduled for the first two weeks of August and deferred the issue as to whether the motion would proceed by way of the trial of an issue with the parties giving viva voce evidence.

[20] On July 2, 2019, Justice MacKinnon heard a motion filed by Mr. Fuhgeh seeking unsupervised access to his children Joshua and William, including video communication 3 times per week. On July 5, 2019, Justice MacKinnon dismissed both motions.

[21] July 23, 2019, Justice Summers dismissed the motion for security for costs.

[22] A case management conference was scheduled for October 24, 2019 to move the matter forward.

Case Management Conference: October 24, 2019

[23] On October 24, 2019, I conducted a case management conference with all parties by conference call.

[24] Mr. Fuhgeh raised the following issues in his confirmation form:

a) timetable for motion to set aside/stay;

b) motion to strike the affidavit of Ms. Bernard;

c) allowance to the possibility of responding and replying in full to the other party’s materials, including but not limited to striking deficient affidavits;

d) questioning timetable;

e) dispensing with approval by Ms. Bernard and Ms. Stewart to prove the orders, including July 5, 2019, ordered by MacKinnon J; and

f) addressing the failure of Ms. Stewart to deliver her responding affidavit.

[25] Ms. Bernard raised the following issues in her confirmation form:

a) Mr. Fuhgeh failed to comply with the roadmap set out by the case management judge;

b) Mr. Fuhgeh’s affidavit dated April 26, 2019 is not in the continuing record; and

c) next steps.

[26] Ms. Stewart raised the following issues in her confirmation form:

a) Mr. Fuhgeh has not followed the guidelines set out in the last conference; and

b) next steps to follow.

[27] Ms. Sack, counsel for Mr. Coderre and Ms. Godbout raised the following issues in her confirmation form:

a) litigation timetable for Mr. Coderre and Ms. Godbout to deliver responding affidavits;

b) Mr. Fuhgeh has not complied with the Amended Case Management Endorsement of February 25, 2019, that required him to deliver an affidavit that did not exceed 30 pages and to prepare a chart setting out his evidence of fraud in replacement of his initial affidavit which was 134 pages long with his exhibits, for total of 2,189 pages;

c) Mr. Fuhgeh’s Notice of Motion dated December 3, 2018 is not clear as to what relief he is specifically seeking;

d) a determination as to whether there should be out-of-court questioning or an oral hearing of the motion at which time the parties will be entitled to conduct cross-examination; and

e) a timetable for the hearing of the motion.

[28] Ms. Bernard, Ms. Stewart and Ms. Sack submitted that Mr. Fuhgeh’s affidavit dated April 26, 2019, did not comply with my Amended Case Management Endorsement dated February 20, 2019. For example, they submitted that the affidavit dated April 26, 2019, referred to the exhibits contained in his November 30, 2018 affidavit where it stated at the top of schedule one:

NB. In this Motion, other than the Exhibits attached, I am relying on the Exhibits in my affidavit sworn on November 30, 2018 for my Motion to Set Aside/Stay which is at Volume I-V place for filing purposes under Court File number FC-12-912-5.

[29] On October 24, 2019, I did not have Mr. Fuhgeh’s affidavit dated April 26, 2019 in my possession. I obtained and reviewed the affidavit where Mr. Fuhgeh seeks to rely on 2055 pages of exhibits in his previous affidavit.

[30] On October 24, 2019, I indicated to Mr. Fuhgeh that I would not take any action until he had an opportunity to address the issue of striking his affidavit and specifying all of the orders that he seeks to set aside. A further conference was set for November 21, 2019.

Case Management Conference: November 21, 2019

[31] At this conference, the two issues that were discussed were the scope of Mr. Fuhgeh’s notice of motion as to specifically which interim and interlocutory orders he sought to set aside and whether his affidavit dated April 26, 2019 breached the terms of my Amended Case Management Endorsement dated February 25, 2019.

[32] Mr. Fuhgeh indicated his intention to set aside the final order of Justice Audet dated December 18, 2017, and, for the first time in this litigation, provided particulars of which interim and interlocutory orders he was seeking to have set aside being the following orders in the Bernard proceeding:

a) April 3, 2017 - Justice Doyle;

b) June 27, 2017 - Justice Trousdale;

c) July 4, 2017 - Justice O’Bonsawin;

d) August 1, 2017 - Justice Audet;

e) September 6, 2017 - Justice Audet;

f) October 4, 2017 - Justice Audet;

g) November 14, 2017 - Justice Roger;

h) November 21, 2017 - Justice Sheard.

[33] At the conference, I ordered, inter alia, that Mr. Fuhgeh was to provide by November 25, 2019, a list of the interlocutory orders made from April to November 2017 that he seeks to set aside.

[34] Further, on the issue of striking parts of Mr. Fuhgeh’s affidavit dated April 26, 2019, I advised that I would reserve my decision until I received the parties’ submissions.

[35] On November 25, 2019, Mr. Fuhgeh provided a new list where he seeks to set aside interlocutory orders in the Bernard proceeding and two orders in the Stewart proceeding as well as the final order of Justice Audet dated December 18, 2017, set out as follows:

a) May 9, 2013 - Justice Robertson (Stewart proceeding)

b) February 24, 2014 - Justice Kershman (Stewart proceeding)

c) August 3, 2017 - Justice Audet;

d) September 6, 2017 - Justice Audet;

e) October 4, 2017 - Justice Audet;

f) October 5, 2017 - Justice Audet;

g) October 6, 2017 - Justice Audet;

h) October 26, 2017 - Justice Sheard;

i) November 14, 2017 - Justice Roger; and

j) November 21, 2017 - Justice Sheard.

Position of the Parties

[36] The intervenors and Ms. Bernard seek an order that Mr. Fuhgeh’s motion be stayed pending compliance with my February 25, 2019 Amended Case Management Endorsement. In the alternative, the intervenors seek an order as follows:

a) The motion only pertains to the December 18, 2017 final order of Justice Audet and Mr. Fuhgeh shall be required to serve and file a replacement notice of motion;

b) This draft shall be required to serve and file a replacement new affidavit replacing the original and new affidavits. The replacement new affidavit shall only address the grounds for seeking to set aside the December 18, 2017 final order of Justice Audet, and focus on the period of December 18, 2017 to December 3, 2018. The replacement new affidavit shall not relate to any other orders or motions and shall not include the charts referred to at paragraph 107 and exhibits R through W of the new affidavit; and

c) Costs be awarded to the intervenors for the case conferences in which they have been required to participate, namely June 28, 2019, October 24, 2019 and November 22, 2019, fixed in the amount of $5000 payable forthwith.

[37] Ms. Bernard’s position is that Mr. Fuhgeh should not have the right to pursue his motion to set aside underlying interlocutory orders in the Bernard proceedings. Further, she submits that Mr. Fuhgeh’s affidavit dated April 26, 2019 does not comply with my endorsement dated February 25, 2019, that the affidavit should be struck in its entirety and that Mr. Fuhgeh should pay any outstanding costs before being permitted to move forward in any litigation.

[38] Ms. Stewart has not filed any submissions but had previously stated that Mr. Fuhgeh’s affidavit did not comply with my Amended Case Management Endorsement without further explanation.

[39] Mr. Fuhgeh’s position is that the intervenors’ submissions exceeded the limit of three pages and that those submissions should be struck or disregarded as noncompliant. He submits that the responding parties should put their egos aside, save themselves further costs that they will eventually pay to Mr. Fuhgeh, consent to set aside the impugned orders on terms and stop wasting taxpayer monies and everyone’s time and resources in the hopes that they will prevail. Further, he submits that the intervenors’ submissions are ultra virus of the jurisdiction of a case management judge and that the intervenors have no standing in a case management conference to request to strike an affidavit. Finally, he submits that neither the Family Law Rules nor the Common Law know of a bald submission before a case management judge to strike an affidavit that a motions judge is seized of and that a case management judge does not have the jurisdiction, not under any statute or at common law, to limit the amount of evidence a moving party may adduce to prevail in a motion.

Mr. Fuhgeh’s Request to Set Aside Orders in the Stewart Matter

[40] Mr. Fuhgeh seeks to set aside to specific orders made in this proceeding being:

a) May 9, 2013 - Justice Robertson, with the consent of the parties, ordered Mr. Fuhgeh to pay child support to Ms. Stewart in the amount of $450 per month. Mr. Fuhgeh appealed the consent order. On May 8, 2017 the appeal was dismissed by the Divisional Court.

b) February 24, 2014 - Justice Kershman granted a final order. Mr. Fuhgeh brought a Motion to Vary which was withdrawn on November 21, 2017. As a result of his withdrawal, he was ordered to pay costs by Justice Audet in the amount of $2300.

[41] With respect to the final order of Justice Robertson, Mr. Fuhgeh appealed the consent order and the appeal was dismissed by the Divisional Court.

[42] With respect to the final order of Justice Kershman, Mr. Fuhgeh voluntarily withdrew his motion to vary. I find it a waste of the court time and abusive to allow Mr. Fuhgeh to seek to move to set aside a matter where he withdrew his own motion to vary.

[43] Consequently, I order that Mr. Fuhgeh shall not be permitted to move to set aside the two final orders in that proceeding.

Bernard Proceedings

[44] In this proceeding, Mr. Fuhgeh seeks to set aside the following orders which are described in the following paragraphs:

a) June 27, 2017 - Justice Trousdale ordered the net proceeds of sale to be held in trust by Michel Sicotte in a separate trust account until further order of the court.

b) August 3, 2017 - Justice Audet: Motions were scheduled for this date. Mr. Fuhgeh served a motion seeking a declaration that the relief claimed was urgent and sought the recusal of Justice Audet. Ms. Bernard brought her own motion seeking a declaration that Mr. Fuhgeh’s motion was not urgent and that the net proceeds of sale be held in trust. Both motions were dismissed. Mr. Fuhgeh filed a motion for leave to appeal the decision of Justice Audet to the Divisional Court but on November 22, 2017, he filed a Notice of Discontinuance. A Notice of Abandonment was served on February 27, 2018.

c) September 6, 2017 - Justice Audet: A case conference was scheduled for this date. Mr. Fuhgeh sought the adjournment of the case conference and listed 11 orders he was seeking by way of a temporary motion. He did not attend at the case conference and it proceeded in his absence. The court made a series of orders dealing with disclosure, scheduling a date for a motion on October 4, 2017, set a timetable for the delivery of materials, listed the issues to be addressed and reserved costs. Mr. Fuhgeh brought a motion for leave to appeal the decision of Justice Audet to the Divisional Court, but on November 22, 2017, he filed a Notice of Discontinuance.

d) September 13, 2017 - Justice Audet granted Ms. Bernard $6000 for costs relating to the motion heard on August 3, 2017. Mr. Fuhgeh filed a motion for leave to appeal the decision of Justice Audet to the Divisional Court. He served a Notice of Abandonment on February 28, 2018.

e) October 4, 2017 - a motion was scheduled for this date where Ms. Bernard sought disclosure from Mr. Fuhgeh, striking Mr. Fuhgeh’s pleadings and costs. Mr. Fuhgeh filed a motion seeking the dismissal of Ms. Bernard’s motion and costs and requested that the matter be adjourned pending his appeals of the various decisions of the court. Justice Audet denied the request to stay of the proceedings pending the appeal process, granted Mr. Fuhgeh an extension to deliver his disclosure to November 24, 2017, ordered Mr. Fuhgeh to provide copies of the notices of motion for leave to appeal to the Divisional Court by October 6, 2017, ordered that the parties would not advance any motions without leave of the court and permitted the parties to proceed to questioning the week of December 4, 2017

f) October 5, 2017 - there is no record of any order being made by Justice Audet on that date.

g) October 6, 2017 - Justice Audet addressed procedural issues.

h) October 26, 2017 - this date was set for a motion that was heard by Justice Sheard where the issues to be addressed were the appointment of the Office of the Children’s Lawyer (“OCL”), access by Mr. Fuhgeh and Mr. Fuhgeh’s request that Justice Sheard recuse herself. Justice Sheard reserved her decision.

i) November 14, 2017 - Justice Roger dismissed the request by Mr. Fuhgeh to stay the orders of Justice Audet dated August 3, September 6 and September 16, 2017 and to consolidate his motion seeking leave to appeal.

j) November 21, 2017 - Justice Sheard released her decision and appointed the OCL, established an access schedule, dismissed the recusal motion and ordered the costs to be determined by Justice Audet, the case management judge.

k) December 18, 2017 - Justice Audet proceeded to hear an uncontested trial and granted Ms. Bernard sole custody, ordered Mr. Fuhgeh to have supervised access, imputed an income of $50,000 to Mr. Fuhgeh, ordered him to pay $461 per month as child support, ordered Mr. Fuhgeh to pay arrears of support, ordered the transfer of a motor vehicle to Ms. Bernard and awarded costs of $70,000 owed by Mr. Fuhgeh to Ms. Bernard of which $50,000 to be enforced by the Family Responsibility Office.

Analysis

[45] In the Bernard proceedings, all of the interlocutory orders that Mr. Fuhgeh seeks to set aside were made inside a litigation process which started with the application and ended with the decision of Justice Audet dated December 18, 2017.

[46] On November 22, 2017, Mr. Fuhgeh filed a notice of discontinuance in the Divisional Court discontinuing his appeals of the August 3, September 6, September 13 and October 4, 2017 orders of Justice Audet. The notice of discontinuance included the following:

As I have withdrawn my Answer and that proceeding due to the continuous racially motivated bias of Audet, J. who self appointed herself as Case Management Judge and making subsequent Decisions rending any Appellate Decisions in this appeal from this Court moot and nugatory.

[47] When Mr. Fuhgeh filed his notice of abandonment on February 28th, 2017, with respect to the same orders, he repeated the same phrase. In the notice of withdrawal of his Answer served on November 21, 2017, the withdrawal provides the following:

Audet, J., who self appointed herself as Case Management Judge, is in my respectful view she is biased against me based on my race (black), gender (male), national or ethnic origin (African). In my respectful view, Justices A. Trousdale, Michelle O’Bonsowin, Liza C. Sheard and Pierre E. Roger, who have heard interlocutory motions in this matter have exercised the same bias in their words, silence, actions and omissions.

[48] I have considered that Mr. Fuhgeh filed his discontinuance of the appeals of the orders of Justice Audet dated August 3, September 6, September 13 and October 4. Further, on November 21, 2017, Mr. Fuhgeh filed the withdrawal of his answer in his litigation with Ms. Bernard. To allow Mr. Fuhgeh to move to set aside the orders that he appealed and then discontinued the appeal would be an abuse of process.

[49] Further, allowing Mr. Fuhgeh to seek to set aside the order of Justice Trousdale dated June 27, 2017, where she ordered the proceeds of sale to be held in trust, the order of Justice Roger dated November 14, 2017, where he refused to stay the previous interlocutory orders of Justice Audet and the order of Justice Sheard dated November 21, 2017, would unnecessarily expand the litigation, increase legal fees and require more court time to adjudicate irrelevant factors. None of these decisions had any effect on the final decision of Justice Audet which provided the substantial relief.

[50] I order that Mr. Fuhgeh may proceed to seek set aside the final order of Justice Audet dated December 18, 2017, and that he shall not be permitted to seek to set aside any of the interim and interlocutory orders.

Striking Parts of Mr. Fuhgeh’s Affidavit Dated April 26, 2019

[51] Ms. Sack and Ms. Bernard argue that Mr. Fuhgeh’s affidavit dated April 26, 2019 violates the terms of my Amended Case Management Endorsement dated February 25, 2019.

[52] Ms. Sack argues that paragraph 107 of Mr. Fuhgeh’s affidavit dated April 26, 2019, specifically exhibits R, S, T, U, V and W, is a cut and paste of part of Mr. Fuhgeh’s previous affidavit filed with his original motion materials. Ms. Sack argues that this is in breach of my Amended Case Management Endorsement dated February 25, 2019.

[53] Mr. Fuhgeh’s submissions are as follows;

a) Ms. Sack is in breach of my November 22, 2019 endorsement by breaching the length of her submissions;

b) the issue of the appointment of Justice Audet as case management judge is not moot because her appointment is void ab initio;

c) Ms. Sack misrepresented in her submissions regarding Mr. Fuhgeh’s disclosure of which interim and interlocutory orders he sought to set aside;

d) Ms. Sack has misrepresented the facts and failed to adhere to the November 22, 2019 endorsement;

e) Ms. Sack has no standing in a case management conference to request the striking of his affidavit as it would be reviewable miscarriage of justice and a frontal assault to the adversarial process for Mr. Fuhgeh to demand and dictate that he delete evidence because she allegedly does not like where it is placed;

f) that his evidence complies with the Amended Case Management Conference Endorsement of February 25, 2019;

g) Neither the Family Law Rules or the Common Law know of a bald submission before Case Management Judge to strike an affidavit that motions judge is seized of. A Case Management Judge does not have jurisdiction, not under any Statute or at Common Law, to limit the amount of evidence a moving party may adduce to prevail in a motion. The judge in question assumes the posture of an advocate for a party in so doing, exceeds or loses jurisdiction ab initio;

h) that I have become an advocate for Ms. Bernard, Ms. Stewart, Mr. Coderre and Ms. Godbout and he requests I recuse myself.

Analysis

[54] On the issue of my jurisdiction, the Family Law Rules specifically provide powers to a case management judge to control the litigation process to achieve the primary purpose which is that cases are to be decided justly.

[55] The scope of a case management judge described within rule 39 of the Family Law Rules. Under rule 39(9) the case management judge assigned to a case,

a) shall generally supervise its progress;

b) shall conduct the case conference and the settlement conference;

c) may schedule a case conference or settlement conference at any time, on the judges own initiative; and

d) shall hear motions in the case, when available to hear motions.

[56] Rule 1 of the Family Law Rules covers procedural orders and specifically states in rule 1(7.1) the following:

(7.1) for greater certainty, the court may make an order under sub rule (7.2), (8), (8.1) or (8.2) at any time during a case, and the power to make such an order,

a) is in addition to any other power to make an order that these rules may specify in the circumstances; and

b) exist unless these rules expressly provide otherwise.

[57] Rule 1(8.2) prescribes a court may strike all or part of any document that is an abuse of the court process and specifically states:

The court may strike out all or part of any document that may delay or make it difficult to have a fair trial or that is inflammatory, a waste of time, a nuisance or an an abuse of the court process.

[58] In Burke v. Poitras 2018 ONCA 1025, the Court of Appeal confirmed the jurisdiction of a judge at the settlement conference to strike the answer of a litigant with respect to financial issues without a formal notice of motion and affidavit. Specifically, the court stated at paras 3-7:

[3] The appellant submits that the settlement conference judge had no jurisdiction to make such an order at the settlement conference. He says that it is contrary to the enumerated purposes of a settlement conference under subrule 17(5) of the Family Law Rules, O. Reg. 114/99, and is not the kind of final order that subrule 17(8) – Orders at Conference – contemplates.

[4] We do not accept these submissions.

[5] First, subrule 17(8)(b.1), which sets out a list of final or temporary orders that may be made at conference so long as notice has been served, contains no explicit restrictions on the kind of final order that may be made at a settlement conference beyond the provision of notice.

[6] Further, and most importantly, the rules governing settlement conferences must be read and applied in the context of the Family Law Rules as a whole. Subrules 1(7.1), (8) and (8.1) are particularly apposite:

CERTAIN ORDERS THAT MAY BE MADE AT ANY TIME

(7.1) For greater certainty, a court may make an order under subrule (7.2), (8), (8.1) or (8.2) at any time during a case, and the power to make such an order,

(a) is in addition to any other power to make an order that these rules may specify in the circumstances; and

(b) exists unless these rules expressly provide otherwise.

FAILURE TO OBEY ORDER

(8) If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter, including,

(c) an order striking out any application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit, or any other document filed by a party;

FAILURE TO FOLLOW RULES

(8.1) If a person fails to follow these rules, the court may deal with the failure by making any order described in subrule (8), other than a contempt order under clause (8)(g).

[Emphasis added.]

[7] The express purpose of the Family Law Rules is to ensure fairness, save time and expense, and give appropriate resources to the case (while allocating resources to other cases), in order to manage the case, control the process, ensure timelines are kept, and orders are enforced. As clearly stipulated in subrules 1(7.1), (8) and (8.1), an order, including an order to strike pleadings, can be made at any time in the process, including the settlement conference, to promote these overarching purposes. In this way, any order that promotes the overall objectives of the rules may be made at any time, including at a settlement conference.

[59] In T. v. D, 2019 ONSC 644, Justice Akbarali reviewed the guiding principles of the Family Law Rules, the powers of a case management judge as well as the court’s inherent jurisdiction. Specifically, he stated at paragraphs 79-82 the following:

[79] First, r. 2(2) of the Family Law Rules sets out the primary objective:

The primary objective of these rules is to enable the court to deal with cases justly.

[80] Rule 2(3) describes what it means to deal with cases justly. It includes: (i) ensuring that the procedure is fair to all parties; (ii) saving expense and time; (iii) dealing with the case in ways that are appropriate to its importance and complexity; and (iv) giving appropriate court resources to the case while taking account of the need to give resources to other cases.

[81] It should be apparent from my review of the history of this proceeding that while the court has repeatedly made accommodation to ensure the fairness of the procedure to all parties, in doing so, expense and time has not been saved. I am also of the view that this case has taken more than its appropriate share of court resources. The use of the court’s resources in this case must be managed in such a way as to take account to the needs of other cases and other litigants, whose concerns are also worthy of the court’s attention.

[82] Rule 2(4) requires the court to use the rules to promote the primary objective and requires the parties and counsel to help the court promote the primary objective.

Analysis

[60] Since December 18, 2018, I have conducted a series of case management conferences to move this matter through the litigation process, to ensure that the process is fair to all parties and to ensure that the court will deal with this matter justly. As part of my obligations as a case management judge and in pursuing the primary purpose of the Rules, I have the jurisdiction to limit the scope of the litigation, specifically in determining whether or not the moving party will be permitted to move to set aside the interlocutory orders in one proceeding and to final orders in another proceeding. I have the jurisdiction to strike any part of any litigant’s pleading if I find that the document may delay or make it difficult to have a fair trial, is inflammatory, a waste of time, a nuisance or an abuse of the court process.

[61] I do not agree with Mr. Fuhgeh’s submission that I am an advocate for Ms. Bernard, Ms. Stewart and the intervenors. I am exercising my jurisdiction to ensure that the proceeding is fair to all partiers so that the matter can be determined justly.

[62] All parties have been aware since October 24, 2019, that the issues of the claim for relief in Mr. Fuhgeh’s notice of motion and the propriety of his affidavit dated April 26, 2019, were contested and required adjudication before the matter could proceed further. Mr. Fuhgeh has been afforded procedural fairness in this process.

[63] The whole purpose of the February 25, 2019 Amendment Case Management Endorsement was to address the first affidavit and exhibits filed by Mr. Fuhgeh. In my view, the length of the affidavit and exhibits, comprising of six volumes of the continuing record, needed to be replaced with a focused affidavit on the issues before the court.

[64] Unfortunately, Mr. Fuhgeh’s affidavit dated April 26, 2019, seeks to incorporate the exhibits filed with his original affidavit. These exhibits total 2055 pages. Mr. Fuhgeh argues that they are a necessary part of his claim. I disagree. This attempt to rely on over 2000 pages of documentation is an abuse of process. Further, I find that Mr. Fuhgeh is attempting to do indirectly what I specifically and directly ordered him not to do.

[65] My Amended Case Management Endorsement dated February 25, 2019, focused on addressing the evidence that the court will need to consider in determining whether or not to set aside the order of Justice Audet dated December 18, 2017, which is the only decision that addresses the issues of custody, access, child support and division of property on a final basis.

[66] I find that Mr. Fuhgeh’s affidavit seeks to relitigate all interlocutory proceedings. I find that despite the clarity of my endorsement, Mr. Fuhgeh breached the term of my Amended Case Management Endorsement of February 25, 2019.

[67] The next issue is whether the entire affidavit should be stricken or only parts of it. Ms. Sack and Ms. Bernard raised two issues with respect to the affidavit dated April 26, 2019. The first issue is that Mr. Fuhgeh seeks to rely on the exhibits in his affidavit dated November 30, 2018, while the second issue is that the charts of evidence required to be prepared by Mr. Fuhgeh are nothing other than a cut-and-paste of his affidavit dated November 30, 2018.

Issue number one: Reference to exhibits in the affidavit dated November 30, 2018.

[68] However, at the top of Mr. Fuhgeh’s affidavit he has the following notation:

N.B. In this Motion, other than the Exhibits attached, I am relying on the Exhibits in my affidavit sworn on November 30, 2018 for my Motion to Set Aside/Stay which is in Volume I-V, placed for filing purposes under Court File FC-12-912-5 by the Registrar.

[69] The problem with the insertion at the top of Mr. Fuhgeh’s affidavit dated April 26, 2019, is his attempt to incorporate by reference all of the exhibits included in his original affidavit. Upon a review of Mr. Fuhgeh’s affidavit and his 6 charts, he refers to exhibits in his November 30, 2018 affidavit. I find that this reliance on the exhibits in the previous affidavit violates the Amended Case Management Endorsement made on February 25, 2019.

Cutting and pasting parts of his November 30, 2018 as exhibits.

[70] In paragraph 107 of Mr. Fuhgeh’s affidavit dated April 26, 2019, he states the following:

Attached as exhibits R, S, T, U, V, W are charts of various instances of events which occurred in respect of the June 27, 2017 urgent motion, September 6, 2017 ex parte case conference, August 1, 2017 motion, October 26, 2017 motion, November 14, 2017 motion and December 18, 2017 hearings.

[71] I have reviewed exhibits R, S, T, U, V, and W and make the following findings:

a) exhibit R are Mr. Fuhgeh’s evidence, over 12 pages, regarding the hearing on June 27, 2017, where Justice Trousdale ordered the proceeds of sale to be held in trust;

b) exhibit S are Mr. Fuhgeh’s evidence, over six pages, regarding the case conference on September 6, 2017. On that date, Justice Audet made a series of orders dealing with disclosure, scheduling a date for a motion on October 4, 2017, set a timetable for the delivery of materials, listed the issues to be addressed and reserved costs. Mr. Fuhgeh brought a motion for leave to appeal the decision of Justice Audet to the Divisional Court, but on November 22, 2017, he filed a Notice of Discontinuance;

c) exhibit T are Mr. Fuhgeh’s evidence, over 19 pages, regarding the August 1, 2017 motion hearing. Mr. Fuhgeh filed a motion for leave to appeal the decision of Justice Audet to the Divisional Court but on November 22, 2017, he filed a Notice of Discontinuance. A Notice of Abandonment was served on February 27, 2018;

d) exhibit U are Mr. Fuhgeh’s evidence, over 15 pages, regarding the October 26, 2017 motion before Justice Sheard, who reserved her decision;

e) exhibit V are Mr. Fuhgeh’s evidence, over three pages, regarding the November 14, 2017 motion where Justice Roger dismissed the request by Mr. Fuhgeh to stay the orders of Justice Audet dated August 3, September 6 and September 16, 2017, and to consolidate his motion seeking leave to appeal; and

f) exhibit W are Mr. Fuhgeh’s evidence, over 68 pages commenting on the evidence provided by Ms. Bernard in her affidavit dated December 6, 2017 and filed at the final hearing.

[72] With respect to the charts, Mr. Fuhgeh was required to prepare a chart setting of the evidence that he has in order to prove his allegations of fraud. In his submissions, he indicated that the evidence is in a chart. Upon a review of the index of Mr. Fuhgeh’s affidavit dated April 26, 2019 there are six charts, listed as follows:

a) exhibit R - Chart 1;

b) exhibit S - Chart 2;

c) exhibit T - Chart 3;

d) exhibit U - Chart 4;

e) exhibit V - Chart 5; and

f) exhibit W - Chart 6.

[73] I have already ruled that the scope of the matters under consideration are restricted to the final trial decision of Justice Audet. Consequently, the charts set out in exhibit R, S, T, U and V are no longer relevant.

[74] The last chart, number 6, Exhibit W, is 68 pages long and like Exhibit R, S, T, U and V are a cut and paste of parts his affidavit dated November 30, 2018. Further all the chart evidence refers to exhibits in Mr. Fuhgeh’s November 30, 2018 affidavit.

[75] Mr. Fuhgeh has failed to address the period from December 18, 2017 to December 3, 2018, failed to provide one required chart and failed to file the transcript of the hearing before Justice Audet.

[76] I find that Mr. Fuhgeh has failed to follow the direction in my endorsement and I find that his action is an abuse of process.

Disposition in the Bernard Matter

[77] I order that Mr. Fuhgeh may not move to set aside or stay any of the underlying interim and interlocutory orders in the Bernard proceeding.

[78] I order that Mr. Fuhgeh may not move to set aside the final orders of Justice Robertson dated May 9, 2013, and Justice Kershman dated February 24, 2014, in the Stewart Proceeding.

[79] I order Mr. Fuhgeh shall file a copy of the transcript before Justice Audet on December 18, 2017 on or before July 17, 2020.

[80] I order Mr. Fuhgeh shall serve and file a replacement Notice of Motion that complies with this order by July 17, 2020.

[81] I strike Mr. Fuhgeh’s affidavit dated April 26, 2019, in its entirety, in both the Stewart and Bernard proceedings.

[82] I order that Mr. Fuhgeh shall file a new affidavit no longer than 30 pages by July 17, 2020, that shall only address the grounds for seeking to set aside the December 18, 2017 final order of Justice Audet, focus on the period of December 18, 2017 to December 3, 2018. The new affidavit shall not relate to any other orders or motions and shall not include the charts referred to at paragraph 107 and exhibits R through W of the new affidavit.

[83] I order that Ms. Bernard may file a new responding affidavit, not to exceed 30 pages, by August 14, 2020.

[84] I order that Marc Coderre and Marie Helene Godbout each may file their responding affidavits, not to exceed 30 pages, by August 14, 2020.

[85] I order that Mr. Fuhgeh may file a responding affidavit, not to exceed 10 pages, by August 26, 2020.

[86] I order that the parties shall set a case management conference before me to take place after August 26, 2020, to address the next step in this litigation.

Costs

[87] On the issue of costs, at this stage, I will address the request for costs from the case management conference of October 24, 2019 to date.

[88] As the interveners and Ms. Bernard have been the more successful parties, I order that they provide me with their submissions not to exceed three pages and a detailed bill of costs by July 6, 2020. I order that Mr. Fuhgeh provide me with his submissions not to exceed three pages and a detailed bill of costs by July 20, 2020. The interveners and Ms. Bernard may file reply submissions of no more than two pages by July 27, 2020.

Released: December 1, 2020

Appendix

On December 1, 2020, the following paragraphs were amended:

[50] I order that Mr. Fuhgeh may proceed to seek set aside the final order of Justice Audet dated December 17 18, 2018 2017, and that he shall not be permitted to seek to set aside any of the interim and interlocutory orders.

[79] I order Mr. Fuhgeh shall file a copy of the transcript before Justice Audet on December 17 18, 2018 2017 on or before July 17, 2020.