COURT FILE NO.: 07-FL-1385-1
DATE: 20150924
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Sebastien Charles, Applicant
AND
Dureine Jean Sargeant, Respondent
BEFORE: Mr. Justice Robert N. Beaudoin
COUNSEL: Carol Cochrane, for the Applicant
Respondent self-represented
HEARD: By Written Submissions
costs ENDORSEMENT
[1] I settled and signed the Final Order in this matter on July 8, 2015 and directed that the costs of the proceeding were to be determined after the delivery of written submissions. The Applicant’s submissions were to be provided within 20 days of the date of my Order, and the Respondent’s submissions were to be provided no later than 20 days thereafter.
[2] On July 24, 2015, the Applicant’s costs submissions were delivered by courier to counsel who was still on the record for the Respondent. There was a flurry of emails which followed and ultimately, the Respondent sought to have the Applicant’s solicitor recopy and redeliver her submissions to her at her new mailing address in Gatineau. Ms. Cochrane, counsel for the Applicant refused to do so, but indicated that a copy would be provided to her by her counsel. The Respondent admitted that these submissions were hand delivered to her on July 27, 2015.
[3] In a follow-up email dated August 27th, 2015 to the Trial Coordinator with respect to the receipt of her costs submissions, Ms. Sargeant apologized for her delay in corresponding as she was “cruising the Bahamas and Florida with her husband.” Her letter goes on to state:
In response to Ms. Cochrane’s letter to Justice Beaudoin, care to inform him that I did acknowledge that her materials had been delivered to my home although not to me in person. I signed a change of representation on the same day she sent her package to my former lawyer. The letter was received and I do not even plan to open it! Simply provide me with a copy of the trial transcript…
She concludes by stating:
Again, all I want is a copy of the transcript of the trial. My matter will be taken care of in Quebec as I have been a resident there since June 2015.
[4] The Applicant (Responding Party to the Motion to Change), Sebastien Charles seeks his costs on a full recovery basis in the amount of $108,892.06 payable immediately. Mr. Charles relies upon Rules 12(3), 18(14) and 24 of the Family Law Rules, O. Reg. 114/99. Sub-rule 12(3) provides:
A party who withdraws all or part of an application, answer or reply shall pay the costs of every other party in relation to the withdrawn application, answer or reply or part, up to the date of the withdrawal unless the court orders or the parties agree otherwise.
[5] Mr. Charles argues that the Rule is of significance in two respects in this proceeding. He notes that it was Ms. Sargeant who initiated court proceedings in January 2014, seeking an order declaring him in contempt of the then-current Court Order by reason of his not attending 13th Sabbath services with the children at Christmastime in 2013. After putting Mr. Charles to the cost of preparing responding materials, Ms. Sargeant elected to not proceed with her motion.
[6] Ms. Sargeant then elected to pursue her claim for sole custody of the children, Xavier and Cedric, and for an order permitting her to move with the children to the Greater Toronto Area (GTA). She had raised this move with the children as early as in 2012.
[7] At Ms. Sargeant’s request, the parties and the children proceeded for an updated custody and access assessment with Dr. Weinberger. Notwithstanding Dr. Weinberger’s recommendations that a relocation of the children to the GTA was not in the children’s best interests, Ms. Sargeant proceeded with her claim through a Case Conference, Settlement Conference, Questioning and then five days of trial. After all of the evidence was called, Ms. Sargeant then chose to withdraw her mobility claim. This was not done until the evening prior to closing submissions being made to the Court. At that time, Ms. Sargeant indicated that there had been a change in her employment circumstances and she would now be able to maintain her job in Ottawa.
[8] I rejected that suggestion. It was never raised as the principal reason for her relocation to Toronto. I was satisfied on all of the evidence that Ms. Sargeant’s real goal was to relocate to Toronto so that she could be with her new husband. Her stated claims at trial were that the relocation would be in the children’s best interests as it would permit them to continue their Seventh-day Adventist education. I am satisfied, however, that that was simply a pretext for the move and that Ms. Sargeant wanted to put an end to the shared custody arrangement that she had with Mr. Charles. At trial, she and her new husband testified that her current employment was at risk due to declining enrollment and that her seniority at the school did not matter. I conclude that Ms. Sargeant recognized that her claim would not be met with favor especially after the Court had the benefit of the evidence of Dr. Weinberger and Ms. Jones.
[9] In fact, I found Ms. Sargeant’s conduct so reprehensible: namely, ignoring the emotional turmoil she had imposed on her two sons for a period of three years while they were faced an uncertain future with respect to a possible relocation to Toronto, that I immediately granted the father’s claim for sole custody. I was further satisfied that Ms. Sargeant had undermined all attempts at joint parenting and had completely frustrated the efforts of the Parenting Coordinator that the parties had hired to help them resolve their parenting issues.
[10] Mr. Charles further relies on his Offers to Settle which were presented during the course of these proceedings. Both of these Offers were based on Ms. Sargeant relocating to Toronto. In the first Offer dated May 30, 2014, Mr. Charles proposed that the parties maintain joint custody of the children and that the residential recommendations contained in Dr. Weinberger’s Report be endorsed: namely that the children continue to reside with him in Ottawa. He was prepared to waive an entitlement to child support.
[11] In his subsequent Offer to Settle of November 12, 2014, the same proposal was made in respect of the custody and access arrangements for the children, with the revised Offer seeking child support in accordance with the Guidelines. That Offer remained open for acceptance up until the commencement of the trial.
[12] Conversely, both Offers to Settle made by Ms. Sargeant dated June 10, 2014, and May 20, 2105 contemplated sole custody being awarded to her and the children moving with her to Toronto. Her Offers gave no recognition to the recommendations provided by Dr. Weinberger.
[13] Rule 18(4) addresses the cost consequences of a party’s failure to accept an Offer. That Rule provides:
A party who makes an offer is, unless the Court orders otherwise, entitled to costs to the date the offer was served and full recovery of costs from that date, if the following conditions are met:
- If the offer relates to a motion it is made at least one day before the motion date.
- If the offer relates to a trial or the hearing of a step other than a motion, it is made at least seven days before the trial or hearing date.
- The offer does not expire and is not withdrawn before the hearing starts.
- The offer is not accepted,
- The party who made the offer obtains an order that is as favourable as or more favourable than the offer.
These offers have to be considered in the light that Ms. Sargeant abandoned her plan to move to the GTA. While my order continued the shared residential arrangements of the children, I gave sole custody and decision-making to Mr. Charles. I am satisfied that the second Offer made by Mr. Charles on November 13, 2014 satisfies all of the requirements under the Rule and on that basis, full recovery costs should be payable from that date.
[14] Mr. Charles further argues for costs on a full recovery basis pursuant to Rule 24(8) of the Family Law Rules which 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 pay them immediately.
[15] In the reliance on their allegation of bad faith, Mr. Charles cites a decision of Justice Perkins in C.S. v. M.S. (2007), 2007 20279 (ON SC), 38 R.F.L. (6th) 315 (S.C.):
At some point, a person could be found to be acting in bad faith when their litigation conduct has run the costs up so high that they must be taken to know their behaviour is causing the other party major financial harm without justification.
[16] Mr. Charles argues that Ms. Sargeant was well aware that the costs for pursuing her claim for sole custody and mobility ran contrary to the Report of Dr. Weinberger which was obtained at her initiation and request. She was aware that pursuing the matter through to trial would put him to considerable cost, both financially and emotionally. He argues that by electing to withdraw her claim on the day before counsel attended court to make closing submissions, Ms. Sargeant knew well that such behaviour would cause him “major financial harm.” She acknowledged as much when the discussion of her withdrawal was addressed in court on June 5, 2015.
[17] Rule 24(11) identifies other factors for the Court to consider when determining the issue of costs. While the issues were not complex, the issue of the children’s custody and the determination of the children’s residential arrangements were of critical importance. I accepted the evidence of Mr. Charles with regard to the emotional burden the mobility claim was creating for the children and of their need to obtain closure on the issue in order to regain some stability and consistency.
[18] Mr. Charles cites the following as examples of Ms. Sargeant’s unreasonable behaviour:
• She initiated a motion for contempt when Mr. Charles was away on holidays with the children over the Christmas recess period in 2013;
• She refused to work cooperatively with the Parenting Coordinator, Lena Jones, and without foundation or just cause, challenged Ms. Jones’ conduct, advice, professionalism and direction;
• She refused to approve draft Orders. Master Roger (as he then was) noted in his endorsement of December 19, that his earlier endorsement of July 2014 contained what was clearly a typographical error, although Ms. Sargeant took the position to the contrary, forcing the matter to be addressed by the Court;
• Ms. Sargeant unilaterally decided to have Cedric undergo orthodontic treatment in Markham, Ontario in the face of Mr. Charles’ expressed opposition and the imminence of the trial to determine the children’s place of residence;
• She insisted on a bilingual Parenting Coordinator as a means to derail the process and then refused to retain counsel which was a precondition to Ms. Cuhacci serving in that role; She told the children they would be moving to Toronto prior to making any mention of her intention to Mr. Charles;
• She insisted that Mr. Charles attend in Ottawa for 13th Sabbath services in December 2014, forcing him to return from New York for fear of a second motion for contempt, and then she elected not to even attend church personally to share the day with them;
• She frustrated the simple exchange of travel consent letters by redoing the letter prepared by Mr. Charles’ counsel to forcing the removal of her telephone number from the form ( the only effective way of verifying her consent;
• She brought motions without notice and falsely declared in her court documents that the motions were made on consent.
[19] I am satisfied that this conduct can be classified as bad faith. Costs were reserved at the Case Conference, the appointment to settle Master Roger’s Order and the Settlement Conference conducted on November 21. These costs should properly be awarded to the Applicant.
[20] I am reminded that the Respondent’s unreasonableness was also demonstrated during the trial proceeding. She initially provided a list of 14 witnesses and then changed that list on the eve of the commencement of the proceeding. During the course of the trial, she then changed her list of witnesses and once again put forward the names of individuals not even mentioned earlier, notwithstanding the conduct of a Trial Management Conference before Justice Polowin in May at which time such matters were addressed.
[21] Ms. Sargeant’s unreasonable conduct extended to the process of settling the Final Order, refusing to approve or even comment on the Draft Order, and then directing her solicitor of record not to attend the scheduled appointment or to make submissions. Ms. Sargeant’s disdain for the court process is evident in her conduct subsequent to the conclusion of the hearing. She notified the children’s high school that she will not contribute to any costs associated with Xavier’s attendance nor can she even insure that she will be able to get her son to school on time because of her own work schedule. Her correspondence clearly suggests that the litigation is not over and that she intends to pursue matters in Quebec.
[22] I have reviewed the Applicant’s draft Bill of Costs, the lawyer’s rate, the time spent and the disbursements incurred. I am satisfied that all of these costs and disbursements are reasonable and necessary in defending against the claims advanced by Ms. Sargeant and in pursuing Mr. Charles’ claim in response. All of these were met with a favor in the final judgment granted. I appreciate that the costs award is significant, but this is one of those rare cases where Ms. Sargeant’s conduct has to be censured by the Court. Substantial indemnity costs should be paid from the commencement of the proceedings to the commencement of trial preparation and on a full indemnity basis thereafter with the exception of the preparation of costs submissions. Ms. Sargeant has the ability to pay. She is employed and she owns property in Ottawa. She herself said that she did not respond to the costs submissions earlier as she was cruising the Bahamas and Florida with her new husband. She unilaterally contracted for expensive orthodontic treatment for Cedric in Markham, Ontario and incurred the cost of leasing a second residence in Markham even though the Court had not made any decision on the residential arrangements of the children.
[23] Mr. Charles was the successful litigant and as such is presumptively entitled to his costs. By virtue of the Respondent’s late withdrawal of her mobility claim, her persistently unreasonable conduct, and the Offers to Settle made by Mr. Charles, I have decided to exercise my discretion and order costs in his favour by requiring the Respondent to pay him costs as follows:
• $75,000 for fees,
• $4,607.75 in taxable disbursements;
• $6,101.00 in non-taxable disbursements;
• Taxes on fees and taxable disbursements.
[24] These sums are payable forthwith.
Mr. Justice Robert N. Beaudoin
Date: September 24, 2015
COURT FILE NO.: 07-FL-1385-1
DATE: 20150924
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Sebastien Charles, Applicant
AND
Dureine Jean Sargeant, Respondent
BEFORE: Mr. Justice Robert N. Beaudoin
COUNSEL: Carol Cochrane, for the Applicant
Pauline El-Tenn, for the Respondent
costs ENDORSEMENT
Beaudoin J.
Released: September 24, 2015