ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY LAW
COURT FILE NO.: FS-14-393403
DATE: 20140702
BETWEEN:
ROBERT SIMON OESTERLUND,
Applicant (Responding Party)
– and –
SARAH LOUISE PURSGLOVE,
Respondent (Moving Party)
Stephen Grant, Erin Crawford,
Gordon D. Capern, Robert A. Centa and Martha McCarthy, Counsel for the Responding Party
Harold Niman, Daryl Gelgoot and
Jen-Yii Liew and Jonathan Lisus, for the Moving Party
HEARD: APRIL 14 and 17, 2014
WRITTEN SUBMISSIONS ON COSTS
endorsement: greeR J.:
[1] On May 1, 2014, I released my Endorsement on this Motion brought on by Sarah Louise Pursglove , against her husband, Robert Simon Oesterlund. It is a Family Law matter that is taking place in both the Courts of Florida and Ontario. In paragraph 49 of my Endorsement, I said if the parties could not otherwise agree on Costs, I would receive brief Written Submissions from counsel. I now have those Submissions.
[2] The Moving Party, Sarah Louise Pursglove (“the Wife”), was successful on all issues before the court. She is seeking her costs of the Motion on a full recovery basis in the amount of $98,192.37, not including HST.
[3] The Responding Party, Robert Oesterlund (“the Husband”), has started proceedings in Ontario under this File number, asking for a Divorce and other corollary relief. The history of the parties’ marriage, citizenship and residency is set out in my May 1, 2014 Endorsement.
[4] The Wife and the parties’ two children are residing in Florida. The Wife began matrimonial proceedings in the 15th Judicial Circuit Court in Palm Beach County Florida on March 27, 2014. That Court made an Order and an Asset Injunction, part of which forms a Schedule to my Endorsement.
[5] The Wife was entirely successful on her Motion. I noted that there was a significant risk that the Husband would attempt to transfer, deplete or conceal further assets and income in Ontario, as he had done in other jurisdictions. I noted that the Husband had attorned to this jurisdiction and that equity favoured freezing the Husband’s assets here “…to protect them until justice has been done.”
[6] As is noted in the number of counsel who participated in the Motion, it was complex, given the nature of the Husband’s assets and residences world-wide. Much was at stake for the Wife and the children, as the Husband had stopped paying both child support and spousal support. He had taken over joint bank accounts in other jurisdictions and sold a residence in which the Wife had an interest. There were jurisdictional issues that had to be examined and much was at stake. The Wife was represented by counsel in 2 law firms and the Husband by counsel in 3 law firms.
[7] Rule 24 (1) of the Family Law Rules, O. Reg. 114/99 says that there is presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal. The Wife was totally successful on her Motion. The injunctive relief granted by me to the Wife mirrored that which had been granted by the Court in Florida. It was to prevent the Husband from further dealing with his assets in Ontario, which had at least a partial value of approximately $35,000,000, mainly in real estate, held by one of the Husband’s corporate umbrellas, of which he appeared to be the controlling shareholder.
[8] In para. 42 of my Endorsement I said:
These principled statements must be kept in mind. To dismiss the Wife’s Motion because she has not attorned to the jurisdiction for the reasons I have outlined, would be putting form over justice. To say that the Orders she is asking for are too broad and may not be totally enforceable, would strangle not only her right but those of her children to have their family law rights protected.
I also said that equity favours freezing the Husband’s assets here in Ontario.
[9] The Wife asks for her Costs on a full recovery basis, relying on R.24(8) which says that if a party has acted in bad faith, the court shall decide costs of a full recovery basis and shall order the party to pay them immediately. The Wife says that the Husband should pay these Costs on a full recovery basis, given his actions and declared intention to deprive the Wife and children of their right to support. The Husband did not make full and frank disclosure of his assets as noted by the less than $3,000,000 he said in his Financial Statement was the value of his assets. Most corporate assets remained unvalued and were labelled “TBD”.
[10] In addition, I accepted the Wife’s statements that the Husband had deliberately dealt with assets that were jointly owned by them, closing out a joint account and selling or transferring a joint asset. He terminated joint credit cards and removed her as a managing member and bank signatory for various corporate entities. She is left in a position of being unable to live her ordinary day-to-day style in Florida. She says she has no means to pay for this litigation, while the Husband travels around the world, has control of three yachts and has residences in various jurisdictions.
Position of the Husband
[11] The Husband takes the position that there should be no determination of Costs at this point until such time as there is a decision on his pending motion for leave to appeal, which he says will be heard on June 11, 2014. In the alternative, the Husband says if any Costs should be awarded by me at this time, it should not be on a full indemnity basis. He points also to the fact that the Wife’s counsel did not provide a breakdown of what those Costs would be on a partial or substantial indemnity scale.
[12] The Husband says he did not act in bad faith. He says he could not give proper values of his assets as his business interests are complicated and it will take time to value them. In any event, he says that this had nothing to do with the context in which the Motion was brought on. He sees it a Motion by the Wife for a Mareva-type Order.
[13] The Husband has provided a copy of the Endorsement adjourning the Motion for Leave to Appeal my Order and it has stayed certain provisions where I had ordered further disclosure and the relief sought in paragraphs (v)(2), (vi), (vii) and (viii) of Schedule A to my Order. In addition, I was provided with an Endorsement of Mr. Justice Paisley on an interim support motion in the Husband’s Application in Ontario.
Analysis
[14] In my view, the issue of Costs of the Motion before me should not be left to be dealt with after the Husband’s Motion for Leave to Appeal is heard. Everything that I have set out in this Endorsement as a fact respecting the Husband’s behaviour is supported in the details set out in Wife’s 2 Affidavits. The Husband acted in bad faith and the Wife is entitled to her Costs on a full indemnity basis.
[15] The Wife’s Bill of Costs is broken down into 2 parts. Mr. Niman has presented a detailed outline of the time spent and by whom of his firm, and at what rate. The fees amount to $66,620 plus disbursements of $4,327.36 for a total of $70,947.36. The fees of co-counsel, Mr. Lisus are set out in a separate Bill. Those fees are $24,697.50 plus disbursements of $307.51, for a total of $25,005.01. There will be HST added to the fees of both firms.
[16] Costs must be reasonable in the circumstances of each case. The Court also applies the principle of proportionality, when examining the fees being asked for. In addition, the Court looks at what is at stake in the litigation. Here there was much at stake and there were inter-jurisdictional issues, which had to be dealt with.
[17] The Court, in fixing Costs, exercises its jurisdiction found in S.131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.434. In addition, the Court looks at the factors which apply under Rule 57 of the Rules of Civil Procedure. As noted by Madam Justice Himel in para. 32 of Farjad-Tehrani v. Karimpour, [2009] O.J. No. 1665 (Ont. S.C.J.), the awarding of Costs is to fix costs in an amount that is fair and reasonable for the unsuccessful party to pay in a particular proceeding.
[18] In the case before me, the amount of time spent and the effort put into the Application was considerable over the 2-day period. It all had to be dealt with very quickly to ensure that Husband did not try to transfer further assets out of this jurisdiction.
[19] Counsel for the Wife have said that the Husband acted in bad faith. Bad faith is defined in subrule 24 (8) of the Family Law Rules. With respect to Costs, it reads: “If a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to them immediately.” In my view, the Husband had been unreasonable in his behaviour in his failure to properly pay spousal and child support for his dependants, when he started the matrimonial proceedings in Ontario while the Wife and children were resident in Florida. He knew that they were entitled to and needed support, since he had closed a joint account and closed off his Wife’s access to deal with certain corporate assets. I find that he acted in bad faith in his dealings with his Wife’s claims.
[20] In Reisman v. Reisman, [2007] O.J. No. 5538 (Ont. S.C.J.), Madam Justice Backhouse, in para. 2 of that decision, said exactly what the Husband in this case has done. She said:
I found that he (the husband) dealt with his obligation to make disclosure as though it were a game or a tactic and that the tactic appeared to be to stonewall the applicant’s legitimate requests for disclosure in the hope that she will be run out of resources and give up.
[21] All of the Husband’s behaviour, that was set out in the Wife’s Affidavit material, point exactly to his treatment of his marital breakdown as a game, where the stakes are high, and where he has complete disregard for his children’s own best interests. He is essentially trying to try to drive the Wife to the proverbial “poorhouse”.
[22] While Senior Counsel’s rates in their Bills of Cost are high, and while each party had three counsel acting for him or her, upon examining their dockets, I do not see a lot of duplication on the part of counsel. It was necessary to have them all in Court as each took part in separate aspects of the litigation, as did two of the Husband’s counsel.
[23] An Order shall go that the Husband forthwith, within 30 days, pay to the Wife’s counsel the following amounts:
To Niman Gelgoot & Associates LLP, the sum of $70,947.36 plus HST on the fee portion of the Bill of Costs.
To Lax O’Sullivan Scott Lisus LLP, the sum of $25,005.01 plus HST on the fee portion of the Bill of Costs.
Greer J.
Released: July 2, 2014
COURT FILE NO.: FS-14-393403
DATE: 20140702
ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY LAW
BETWEEN:
ROBERT SIMON OESTERLUND,
Applicant (Responding Party)
– and –
SARAH LOUISE PURSGLOVE,
Respondent (Moving Party)
ENDORSEMENT
Greer J.
Released: July 2, 2014