Summary Judgment Motions

The Ontario Court of Justice issued a good refresher on summary judgment motions in Catholic Children’s Aid Society of Toronto v. C.G., 20018 ONCJ 193.

Summary judgment is a conclusive ending a case short of trial, and such motions are governed by rule 16 of the Family Law Rules.

On motion, the court must consider whether there is a genuine issue for trial, and the onus is on the moving party to establish that no such issue exists.

The Supreme Court of Canada, in Hryniak v. Mauldin, 2014 SCC 7 (CanLII), articulated a set of principles to guide courts on summary judgment motions. Those principles include:

  1. Summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims,
  2. Where a summary judgment motion allows the judge to find the necessary facts, to apply the law to the facts and resolve the dispute in a just manner, proceedings at trial would generally not be proportionate, timely or cost-effective.
  3. A process that does not give the judge confidence in the conclusions to be drawn can ever be a proportionate way to resolve the dispute.

The quality of evidence available on motion for summary judgment is very important. Many, if not all, courts require trial-worthy evidence and indeed there is a trend towards only permitting evidence that would be admissible at trial.

Hartman Law is pleased to answer questions one may have on summary judgment motions, so do not hesitate to contact us.

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How to Change or Set Aside a Default Order in Ontario Family Law

I am often approached by clients who seek to set aside a default order. A default order is a court order that was made without a defence or appearance in court by one of the parties. Changing or setting aside an order made in default means to alter or invalidate the order after it was made.

Justice Spence of the Ontario Court of Justice recently dealt with this issue in Naseem v. Saddiqui, 2018 ONCJ 141, the facts of which are as follows:

  • Mother commenced her Application and properly served her pleadings upon father.
  • Father did not serve or file his reply materials.
  • A first appearance occurred. Father appeared and mother agreed to allow him to serve and file his materials within 30 days.
  • Father again failed to serve and file any materials.
  • A second first appearance occurred at which time father provided mother with an Answer but no Financial Statement, supporting financial documents, or other required documentation.
  • Father was noted in default.
  • A default order was made dealing with, among other things, custody and financial issues.
  • Father then moved to set aside the default order.

Justice Spence analyzed Rule 25 of the Family Law Rules and dismissed the father’s motion with costs.

Rule 25 allows the court, on motion, to “change” an order in a variety of circumstances. It does not specifically empower a court to set aside an order, but the Ontario Court of Appeal has interpreted the rule as allowing a court to do so.

Fundamentally, the question on a rule 25 analysis is: what must be done to do justice as between the parties?

The leading authority is Hoang v. Schom, 2010 ONSC 2300. There, the court elucidated the following test:

  • The application to set aside a default order should be made as soon as possible after the order comes to the knowledge of the moving party. The court must be attuned to whether setting aside the order will cause irreparable injury to any party.
  • The moving party must provide an affidavit explaining the circumstances in which default occurred as well as providing a meritorious defence to the issues captured in the default order.
  • The affidavit must do more than explain why there was a delay. It must also set out the nature of the defence and a statement of fact that allows the court to determine whether there is a triable issue.

 The Ontario Court of Appeal found, in Peterbilt of Ontario Inc. v. 1565627 Ontario Ltd, that the affidavit must sufficiently fleshed out to support a motion to set aside a default order.

The father’s motion failed not because of delay, but because his affidavit failed to disclose any meritorious defence. For instance, he did not provide a financial statement, making it impossible to determine his position on financial issues. He also had complaints about custody but his affidavit was almost completely silent on that issue.

The takeaway from Naseem is to be punctual with filing and service deadlines to avoid unwanted consequences.

Hartman Law

The blog is back in action after a long hiatus.

Over the past year I branched out on my own and established Hartman Law, a boutique firm in Downtown Toronto working in family law, civil litigation, and constitutional claims.

This blog will remain dedicated to family law issues.

If you wish you contact us, please don’t hesitate to call (416-316-2234) or write (jh@jeffreyhartman.law)

Cheers

Appeal versus Motion to Change…Again

Time and again I have discussed the difference between an appeal and a motion to change. This very issue arose recently in the case of Concepcion v. Richards, 2016 ONSC 6984.

In this case, the appellant appealed an order directing the sale of the matrimonial home and requiring him to pay child and spousal support, claiming the original judge failed to consider a number of facts.

The Court found that the appellant essentially sought reconsideration of the order, which was properly decided, and thus an appeal was not available. The alternate, and correct, procedural route in these circumstances was to bring a motion to change based on a material change in circumstances. If no such change is available, then the motion ought to not be brought.

Very often in family law litigants get stuck with orders that they do not like and that do not work for them. This, unfortunately, is a harsh reality of family litigation and a great reason to negotiate or mediate and stay out of court. There is, of course, a time and place for court, but parties to a family law dispute need to think very carefully about the risks versus rewards.

Jeffrey L. Hartman

High Income Short Marriage Spousal Support

The recent of case of Ahmad v. Khalid, 2016 ONSC 5595 deals with spousal support payable by a high income earner in the context of a short marriage.

In this case, the parties were married in a religious ceremony on February 22, 2013 and a civil ceremony on November 22, 2013. A child was born on January 9, 2015. On February 14, 2015, initiated divorce proceedings in the local US jurisdiction. Wife returned to her parents’ residence in Brampton, Ontario, shortly thereafter. Husband earned the equivalent of $324,640.00 CDN as a US doctor while wife had no income at the time of separation. Wife started a master’s degree program in health administration when she was three months pregnant and completed her first term.

One of the questions before Justice Emery was whether the wife was entitled to receive spousal support and, if so, in what amount.

Justice Emery determined that wife was clearly entitled on a compensatory basis. Although it was a short marriage and wife was living comfortably in her parents’ home, she did put her education and career on hold to move to the USA and have a child with husband. The Court was also persuaded by the fact that wife was the primary caregiver of the child. Spousal support was awarded at the low range of $7,500.00 month on an interim basis.

In reaching conclusions on entitlement and quantum, Justice Emery commented on husband’s ability to pay, noting his high income and significant expenses. One such expense was monthly mortgage payment in the amount of $3,673.00 on a home purchased after separation. Justice Emery stated this expense could not assist in limiting his spousal support obligation towards wife because the house is an investment that will either generate income of appreciate in value. The message, it seems, is that hiding behind high expenses will not help limit spousal support obligations and a payor who engages such a tactic does so at their own peril.

Jeffrey L. Hartman

A Very Unusual Case

Leach v. Leach, 2016 ONSC 6140 is an extraordinarily unusual family law decision because it features husband moving to remove wife’s lawyer as counsel of record.

Wife had been represented by Ms. Anderson for some five years. The case is notionally about spousal support: husband’s income fluctuated as a result of employment changes and spousal support had to be sorted out. I say “notionally” because the case boiled over when wife shifted from being a part time employee to full time employee at her lawyer’s firm. Husband took great exception to wife’s employment and demanded Ms. Anderson recuse herself on account of conflict of interest. Ms. Anderson refused and husband brought a motion.

Counsel for both husband and wife obviously retained outside counsel to prepare and argue the motion. The material was voluminous at eight affidavits, three continuing record volumes, and four facta. The motion was adjourned a number of times and, when it occurred, took a full day. One can only imagine how much the motion cost all told; likely well north of $15,000.00.

Perhaps not surprisingly, there are no analogous cases. The Court therefore outlined the general principles dealing with removal of counsel:

  1. It is an objective rather than subjective standard; the actual perceptions of the litigant are irrelevant. The question is whether a reasonably informed member of the public would perceive there to be a conflict of interest or ethical breach arising if the lawyer continued acting for a client who is also an employee.

 

  1. Courts exercise great restraint in interfering in a litigant’s counsel choice and will interfere only in the clearest of cases.

 

  1. The Court must be guided by the following policy considerations:
  •  The necessity of maintaining the high standards of the legal profession and integrity of the justice system; and
  • Courts must ensure that a litigant is not deprived of their choice in lawyer without good cause.

Applying these principles, the Court distinguished the employer-employee relationship from circumstances where the solicitor-client relationship is intimate or familial. Those cases clearly give rise to a conflict of interest in which counsel loses objectivity. The employer-employee relationship does not necessarily and husband failed to establish otherwise here.

What is most spectacular about Leach is not the reasoning. It is the simple fact that the case was ever litigated in the first place. Ms. Anderson understandably dug her heels in at the accusation of a conflict. In fairness to husband, however, Ms. Anderson’s retainer certainly is of some concern. It is a bizarre relationship and there is no shortage of family lawyers in Ontario.

Leach exposes a very expensive and dangerous truth about family law: clients, and indeed lawyers, get entrenched in positions and cannot advocate either effectively or as effectively as possible in the circumstances. How the two lawyers in this case are supposed to work together now in any constructive manner is beyond me. It seems reasonably likely that every issue, no matter how minor, will be litigated from this point forward unless and until one or the other counsel changes. It is reasonable to suppose that the parties might be best served at this point by both retaining new counsel.

Overall, a very unusual case.

Jeffrey L. Hartman

Do I have to pay child support during a block of parenting time?

Under Ontario family law, is child support payable for the time period in which the payor parent has a block of access time with the child? This was the question before the Ontario Superior Court of Justice in Nicholson v. Nicholson, 2016 ONSC 5573.

In this case, the payor exercised a block of time with the child pursuant to an agreed upon schedule. The payor then brought a motion claiming that child support is not properly payable for the period of time in which the child was in their care. The court disagreed, stating:

The support being paid by the respondent is for the benefit of the [child]. The respondent’s time with [the child] during the summer was the agreed upon summer parenting time schedule. This on its own, in my opinion, does not vitiate the obligation to pay child support for [the child] during the time the respondent had [the child].

The result is not surprising but perhaps it is avoidable by way of separation agreement. Consult a Toronto family lawyer to discuss child support and separation agreements.

Jeffrey L. Hartman