Court File and Parties

Court File Nr.: FC-20-422 Superior Court of Justice – Ontario

Re: Jean-Paul Hage, Applicant And: Amanda Skaff El-Hage, Respondent

Before: Master Kaufman

Counsel: Gonen Snir, for the Applicant Kristie Smith, for the Respondent

Heard: In writing

Costs Endorsement

[1] On June 15, 2020, I denied the Applicant’s request to have an urgent motion heard. The Applicant had not seen his daughter Emilia since February 21, 2020. Emilia is 11 months old. Because the Respondent had offered twice weekly access visits, I determined that the matter was not urgent.

[2] The Respondent seeks her costs, to which she is presumptively entitled pursuant to subrule 24(1).

[3] The Applicant resists an order for costs on several bases. First, he argues that he did not request an urgent motion and was under the impression that the Court was more receptive to hearing regular motions. On April 23, 2020, Justice MacEachern denied the Applicant’s request for an urgent motion during this period of suspension before a case conference was held. She noted that the judge presiding over the case conference would have jurisdiction to schedule an urgent motion in his or her discretion. Justice Smith presided over the parties’ case conference on May 27, 2020. He also found that the Applicant’s request was not urgent. He wrote that the Applicant “may file a request with a triage judge, seeking that the motion be heard”, which the Applicant did, and which gave rise to my decision. In his notice of motion, the Applicant requested that the Court schedule this motion under the “Court Operations in the East Region during COVID-19 Health Emergency Direction”. He stated in his affidavit that he requested a motion on an “expedited or urgent basis”. Based on the foregoing, the Applicant was clearly requesting an urgent motion.

[4] The Applicant also states that the Respondent’s offers of access were tied to unacceptable conditions such as forgoing custody rights. The time to make these submissions would have been in reply to the Respondent’s submissions on the urgency. The Respondent confirmed in her letter of June 11, 2020 that she was offering access twice weekly (2.5 and 3 hours) at the paternal grandparents with shared transportation responsibilities, and that the offer was still open for acceptance. There were no other conditions listed and the Court expects the Respondent to honour that offer. The Court agrees that the draft Order the Applicant appended to his costs submissions does not capture all the terms of the Respondent’s offer (grand-parental supervision and shared transportation). If the Applicant is serious about wanting to have parenting time with Emilia, he should take immediate steps to commence these visits on a without prejudice basis.

[5] The Respondent asks for costs on a substantial or full recovery basis and relies on the Court’s decision in Biant v. Sagoo. The Court of Appeal for Ontario rejected the principle that costs in family proceedings should “generally approach full recovery” as set out in that case. [1] The Court’s task in fixing costs is to consider the factors listed in subrule 24(12) and determine a proportionate and reasonable amount of costs.

[6] Here, I assess the Respondent’s costs at $900 inclusive of HST and disbursements. This amount would accomplish the objectives that modern costs rules are designed to foster (partially indemnify successful litigants, encourage settlement, and discourage and sanction inappropriate behaviour), is proportional to the issues at stake and takes into account the Applicant’s reduced income during the pandemic. These costs are payable forthwith.

Master Kaufman Date: July 3, 2020

[1] Beaver v. Hill, 2018 ONCA 840, at paras 8-11.