CITATION: Ogunelesi v. Ogunlesi, 2013 ONSC 6529

DIVISIONAL COURT FILE NO.: 379/13

DATE: 2013-10-21

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Elizabeth Ogunlesi, Applicant/Responding Party

AND:

Anthony Ogunlesi, Responding/Moving Party

BEFORE: Himel J.

COUNSEL: H.J. Yehuda Levinson, for the Applicant/Responding Party Joan Manafa, for the Respondent/Moving Party

HEARD: October 10, 2013

ENDORSEMENT

[1] Anthony Ogunlesi moves for leave to appeal the order of Kiteley J. dated August 20, 2013 dismissing his motion challenging the jurisdiction of the Ontario court, striking out his motion materials for failure to comply with an order of Stevenson J., prohibiting him from seeking any relief, and ordering him to pay temporary lump sum spousal support of $100,000 and costs of $31,542 to the applicant. He also seeks a stay pending appeal of the decision. Elizabeth Ogunlesi opposes the relief sought but, if leave is granted, brings a cross-motion for an order for security for costs.

Background

[2] The parties were born in Nigeria, cohabited since January 1989, married in Nigeria on February 9, 1999 and have three children of the marriage ages 18, 25 and 27. They obtained landed status in Canada in July 2009. The parties had successful business ventures and owned properties in Canada, the United Kingdom, Spain and Nigeria.

[3] Ms. Ogunlesi commenced a divorce proceeding in Ontario on April 4, 2011. Mr. Ogunlesi moved to challenge the jurisdiction of the Ontario court. Czutrin J. held that she had met the residency requirement under the Divorce Act, R.S.C. 1985, c. 3 and ordered a trial of the issue with respect to jurisdiction due to credibility issues. Mr. Ogunlesi appealed that ruling to the Court of Appeal but was unsuccessful. He says he obtained an annulment in Nigeria on February 4, 2013. Ms. Ogunlesi has filed a proceeding opposing the granting of an annulment in Nigeria.

[4] The parties were before Penny J. on a motion for interim relief on September 25, 2012 at which time he granted a stay of a majority of the relief pending the determination of the jurisdictional issue. They were before Stevenson J. on January 10, 2013 and on July 18, 2013. On the latter date, Stevenson J. ordered the release of the net proceeds of sale of two properties and excess real estate commission to be paid to the applicant wife and made orders for financial disclosure and other relief. Ms. Ogunlesi brought a motion for child and spousal support and to encumber and sell certain properties owned by them. Mr. Ogunlesi sought the dismissal of the motion for lack of jurisdiction. The motion was heard by Kiteley J. on August 20, 2013 for the entire day.

The decision being appealed

[5] Ms. Ogunlesi's motion was for an order imputing income to the respondent, directing him to pay university fees for two children and child support for them, an order for spousal support, and an order permitting her to sell certain properties. Justice Kiteley noted that counsel for Mr. Ogunlesi took the position that Ms. Ogunlesi had failed to establish need and ability to pay. She also highlighted that Mr. Ogunlesi failed to file a financial statement or a net family property statement although ordered by Justice Stevenson and that the wife did not file a recently sworn financial statement. She refused to impute income to Mr. Ogunlesi of $10 million as the applicant wife had requested without sufficient evidence but was able to use a financial statement of the applicant sworn on April 1, 2011 for some evidence as to her circumstances. She also took into account that she was threatened about losing her condominium in which she lived because of mortgage arrears, unpaid taxes and unpaid condominium fees. She concluded that there was evidence of some need and made an order for lump sum support in the amount of $100,000 to cover the Ms. Ogunlesi's accommodation costs. She also ordered the respondent husband to pay costs orders outstanding that totalled $31,542. She declined to make an order for child support as she found the record to be inadequate. She awarded additional costs for the motion in the amount of $3,000 payable to Ms. Ogunlesi.

[6] In a companion motion, Justice Kiteley struck out the husband's affidavit which asserted that the Ontario court lacks jurisdiction because of the annulment in Nigeria. Kiteley J. would not consider the issue of the appropriate forum as Justice Czutrin had ordered this issue proceed to trial. However, she noted that she was aware of his assertion that the marriage had been annulled in Nigeria but said that if that judgment was recognized, the court in Ontario still has jurisdiction to make child and spousal support orders under the Family Law Act, R.S.O. 1990, c. F.3.

Positions of the parties

[7] An appeal from an interlocutory order lies with leave to the Divisional Court under s. 19(1) of the Courts of Justice Act, R.S.O. 1990, c. C. 43. The grounds for leave are set out in Rule 62.02(4) of the Rules of Civil Procedure. The husband relies on Rule 62.02(4)(a) that there are conflicting decisions of another judge on the matter and it is the opinion of the judge hearing the motion that it is desirable leave be granted. Counsel for the husband argues that the evidence before the motion judge was that the marriage of the parties had been annulled in Nigeria in February 2013. As the Ontario court never granted the divorce, it lacks jurisdiction to grant corollary relief. Further, there is no jurisdiction under the Family Law Act because of the relief granted in Nigeria. The husband submits there are conflicting decisions because of the annulment proceeding in Nigeria and that it is desirable leave be granted as the matter raises issues of significant public importance. He also seeks a stay of the order.

[8] The wife opposes the relief sought and argues that there were no errors made by Kiteley J., that the grounds for a stay have not been met and that the motion for a stay and for leave to appeal should be dismissed. If leave is granted, Ms. Ogunlesi submits that Mr. Ogunlesi should be required to post security for costs in the amount of $25,000.

Decision

[9] The issue of whether the Ontario court has jurisdiction has been referred to a trial of the issue which is to proceed in the near future. Justice Kiteley quite properly refused to address that matter during the motion on August 20, 2013. However, she was mindful of the position of Mr. Ogunlesi and held that she had jurisdiction to deal with the issues of support and related relief in any event. She was aware of the history of the proceedings from the endorsements of Penny J. and Stevenson J. and the materials filed by the parties. She refused to impute the kind of income the wife suggested for Mr. Ogunlesi because the evidence was insufficient. Similarly, she refused to make orders regarding child support because of the lack of evidence. Her reasons were comprehensive on the remaining issues. She granted some relief because of the nature of the proceedings and the evidence that was before her concerning the need of the wife, the husband's ability to pay and the outstanding costs awards that had been made.

[10] Rule 62.02(4) provides as follows:

Leave shall not be granted unless,

(a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or

(b) there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.

[11] I do not consider there to be a conflicting decision by another judge on the matter involved in the proposed appeal as the status of the divorce proceeding is not yet determined and the annulment proceeding in Nigeria is being contested. The evidence before me is an affidavit dated August 15, 2013 where the responding party stated that she has counsel representing her on an appeal of the proceeding in Nigeria and the appeal is not expected to be heard for approximately a year. I do not consider it desirable that leave be granted. Rather the parties should continue with the proceedings set to move towards some final resolution. Neither do I have good reason to doubt the correctness of the decision of Justice Kiteley. She noted in her judgment that she considered that, when the application was initiated in 2011, the request for child and spousal support was made pursuant to the Family Law Act and without making any determination about whether the judgment for annulment would be recognized in Ontario, she concluded that she had jurisdiction to make an order for temporary child and spousal support under the Family Law Act. She made orders concerning matters where she found sufficient evidence was before her to meet the standard of proof. Further, the proposed appeal does not involve matters of such importance that leave should be granted.

[12] As for the motion for a stay, I find that the circumstances of this case do not meet the criteria set out in RJR-Macdonald Inc. v. Canada (A.G.), 1994 117 (SCC), [1994] 1 S.C.R. 311 at paras. 49, 59 and 62. There is no serious issue to be tried, the moving party has failed to show irreparable harm will be caused if a stay is refused and the balance of convenience does not favour the moving party.

[13] For these reasons, the motion for leave to appeal the decision of Kiteley J. is dismissed.

[14] The parties have agreed that an appropriate costs award for this motion is $5,000 an amount which I deem fair and reasonable in the circumstances. Costs are fixed at $5,000 inclusive of disbursements and HST payable to Elizabeth Ogunlesi by the respondent Anthony Ogunlesi within 30 days.

Himel J.

Date: October 21, 2013