Evidence on Interim Motions in Ontario

Effective family litigators know that one of the many keys to courtroom success is managing evidence within scarce time constraints. The fresh Ontario Superior Court of Justice decision Hutton v. Hutton, 2015 ONSC 6698 teaches Ontario family lawyers how to do so on interim motions.

In Hutton, the Hon. Justice Ray reminds:

“It is not proper to conduct in depth examination of the evidence on an interim motion … While I recognize that interim awards are often used as the basis of a final resolution, it is unfair for a motions judge who is limited to the submissions of counsel and unchallenged affidavit evidence to be expected to be as thorough as a trial judge who has the benefit of vive voce evidence, and considerably more time. That said, it is important that a motions judge make as fair an order as possible on the materials … It is after all an interim order intended to do justice to the parties pending trial or final resolution.”

Great wisdom inheres in Justice Ray’s assertion. On interim motions, affidavit evidence should be clear, concise, complete, and compelling. While the legal argument should be incisive and strong, concessions should be made where appropriate and weaker arguments should be shelved for trial if not abandoned. Time should be budgeted carefully and submissions should be rehearsed in aid of efficiency. Ontario family lawyers should bear these principles in mind when preparing for interim motions.

Jeffrey L. Hartman

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