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Civil Judgment - Summary Judgment versus Family Law. Walsh v. Tober
In Walsh v. Tober (Div Court, 2023) the Divisional Court considers the summary judgment standard of 'no genuine issue for trial', which occurs both in the civil rules [R20.04] and the family rules [R16]:[62] In the SJ reasons, at para. 22, the motion judge set out in full r. 16 of the FLR relating to summary judgment in family proceedings. As is the case with the corresponding rule that governs other civil proceedings (being r. 20 of the Rules of Civil Procedure), the motion judge is required to grant summary judgment if there is no genuine issue requiring a trial: FLR, r. 16(6); RCP, r. 20.04(2)(a). In both cases, the motion judge has enhanced fact-finding powers that entitle the judge to weigh the evidence, evaluate credibility of a deponent and draw any reasonable inference from the evidence, unless it is in the interest of justice for such powers to be exercised only at a trial: FLR, r. 16(6.1), RCP, r. 20.04(2.1). In the SJ reasons, at para. 23, the motion judge appropriately relied on Hryniak, at paras. 47, 49, 50, 53 and 67, in which the Supreme of Canada provided guidance as to how the relevant requirements in r. 20 of the RCP should be applied. The same considerations clearly apply in family proceedings under r. 16 of the FLR.
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