Sometimes, a trial is not a necessary measure to take in a family law matter. Trials can be costly and time-consuming, so when they can be avoided it is beneficial to all involved. A summary judgment motion can allow courts to make a final order where there is no genuine issue requiring a trial. This is only an option if the summary judgment motion can achieve a fair and just process that enables the judge to make the required findings. In other words, a party cannot be disadvantaged by the decision not to go to trial.

Courts have determined that the rules pertaining to summary judgment motions should be interpreted broadly so as to further access to courts, reduce costs, and ensure timely adjudication of claims. This article discusses some of the key considerations if you are considering bringing a motion for summary judgment.

The Legal Test on a Summary Judgment Motion

Rules 16(6.1) and (6.2) of the Family Law Rules deal with summary judgment motions. A summary judgment must be granted where there is no genuine issue requiring a trial. In Hryniak v. Mauldin, the Supreme Court of Canada explained that there will be no genuine issue requiring a trial if the judge can make a fair and just determination on the merits of a motion for summary judgment. For the court, “this will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result”.

The focus is not on whether the summary judgment procedure is as exhaustive as a trial, but whether the judge has access to the relevant facts to resolve the dispute. If the judge is provided with all the relevant facts, proceeding to trial is no longer the most effective course to take.

The party seeking summary judgment carries the onus of establishing that there is no genuine issue requiring a trial. Once this burden is met, the responding party must set out evidence and specific facts showing that there is a genuine issue. This will require more than just allegations or denials; each party must put their best foot forward showing material facts that either require, or do not require a trial. Importantly, deficiencies in this responding material does not permit a judge to grant summary judgment by default. They must still ensure that the evidence is persuasive enough that they can resolve the issue justly.

Financial Disclosure Still Important in Summary Judgment Motions

Depending on the circumstances, proper financial disclosure is a paramount consideration within family law, and this extends within a motion for summary judgment, where courts encourage disclosure. In Hevey v. Hevey, the former wife appealed an order granting summary judgment. The former wife claimed to have recently discovered that her former spouse had failed to make financial disclosure and had misrepresented his wealth. She alleged this was not an appropriate case for summary judgment.

During the motion for summary judgment, the former wife was concerned that the respondent had not filed an answer and financial statement as required by the Family Law Rules. The motion judge was prepared to proceed without the filing of an answer, believing that it would have done little to enhance the record. The Court of Appeal agreed with the former wife and found that it was indeed an error to proceed with the summary judgment motion.

Rule 16 of the Family Law Rules specifically provides that summary judgment is available after the respondent has served an answer. The former wife argued that this rule is mandatory and that the appeal should be allowed on that basis alone. The Court of Appeal cited Frick v. Frick, which emphasizes that family law litigation is different from civil litigation, and that the Family Law Rules recognize that the most basic obligation in family law is the duty to disclose financial information.

The heart of the former wife’s claim was that she received inadequate disclosure. She also advanced some evidence in the form of a sworn financial statement to substantiate her claim. While the financial statement valued the former husband’s assets at $0, he was representing himself to banks as having a net worth of $21 million. The court did not decide whether an answer is always needed under Rule 16, but agreed that it was required in these circumstances. The respondent could have been cross-examined on his new financial statement, and in the absence of that disclosure the appellant was at a significant disadvantage in the summary judgment motion.

Courts Cautious in Granting Partial Summary Judgment

Courts may be asked to grant a partial summary judgment, where certain claims will still remain to be tried. Courts are particularly careful dealing with these cases as there are particular risks in these circumstances, including the possibility of delay, inconsistent findings, and increased expense for the parties.

These limitations were recognized in Malik v. Attia. In that case Justice Brown explained that a summary judgment is a procedural tool that can give litigants timely and affordable access to civil courts. In each request for summary judgment, parties should:

1. Demonstrate that dividing the determination of this case into several parts will prove cheaper for the parties;
2. Show how partial summary judgment will get the parties’ case in and out of the court system more quickly;
3. Establish how partial summary judgment will not result in inconsistent findings by the multiple judges who will touch the divided case.

Judges may prefer to determine the entirety of the case rather than dividing the issues into a series of partial summary judgments. This is particularly true when property division and spousal support issues are at play. For example, in Hartshorne v. Hartshorne, the Supreme Court of Canada found that property division and spousal support are linked to each other, and a specific sequencing of claims should occur when both arise. Property division should be determined first before making a determination on spousal support. Furthermore, in Greenglass v. Greenglass, the Ontario Court of Appeal noted that the equalization payment can have an impact on the spousal support analysis, since the amount of the payment and possible income generation resulting from the division of assets can affect the level of support a party requires.

Judges Must Resolve Family Issues Justly

Summary judgments can provide swift access to justice in cases where there is no genuine issue for trial, and can save parties to family law litigation time and money. Courts still need to properly assess each case, however, which requires that all relevant evidence be brought before the judge, including proper financial disclosure.

The lawyers at Boulby Weinberg LLP in Toronto focus exclusively on family law matters for clients in Ontario and internationally and advise clients on complex family property and support strategies tailored to your unique situation. To discuss your matter further or arrange a consultation please complete our online questionnaire or contact the firm at 647-494-0113 ext. 102.