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Family - Summary Judgment. 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. . Walsh v. Tober
In Walsh v. Tober (Div Court, 2023) the Divisional Court sets out the SOR for a summary judgment decision, here in a family law appeal:[29] In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at paras. 80-84, the Supreme Court of Canada addressed the application of the appellate standards of review in the context of a summary judgment motion. Relying on the principles in Housen, the Supreme Court found as follows:a. Absent an error of law, the motion judge’s exercise of powers under the summary judgment rule attracts deference;
b. Where the motion judge exercises their statutory powers and determines whether there is a genuine issue requiring a trial, that is a question of mixed fact and law, reviewable on the standard set out in Housen; and
c. Such deference is also owed to the determination of whether it is in the “interests of justice” for the motion judge to exercise their fact-finding powers in determining whether to grant summary judgment: see FLR, rr. 16(6), 16(6.1); Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“RCP”), rr. 20.04(2), 20.04(2.1). . Karatzoglou v. Commisso
In Karatzoglou v. Commisso (Ont CA, 2023) the Court of Appeal considered an appeal of a dismissal of a partial summary judgment motion in an NFP divorce matter:(3) Summary judgment was appropriate
[26] The appellant submits that it was inappropriate to order partial summary judgment. She relies primarily on civil law cases.
[27] This was a family law action, and the Family Law Rules, O.Reg. 114/99, apply. By the time the motion was heard, the parties had been in litigation for six years.[3] Rule 2(5) of the Family Law Rules imposes a duty on the court to manage cases, having regard to the objective in r. 2(3) to save time and expense. Rule 17(8) authorizes the case management judge to give directions to narrow the issues. The case management judge scheduled the motion for summary judgment to address Rosetta’s claims against Lisa. This was the appropriate procedure.
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