Relatively recent changes which came into effect of May 2, 2015 have significantly changed how summary judgment motions are determined in family law. The goal of the changes is to increase access to justice and promote the principle of proportionality, while ensuring a fair and just result. Prior to the changes, there was a general reluctance amongst the family law litigants to pursue summary judgment given the harsh cost consequences of a failed motion. Further, the likelihood of failure was high, given the limitations in respect of the evidence before the court and the court’s general inability to assess credibility and thoroughly and contextually weigh the evidence.
The changes not only eliminate the prior harsh cost consequences, but equip the court with an ability to weigh the evidence and assess credibility. It is hoped that through these expanded summary judgment rules, the family law litigant will be equipped with a tool that will significantly limit unmeritorious claims. Given the novelty of the changes, their impact is yet to be fully understood.
The Beginnings of Change
On November 20, 2007, the Honourable Coulter Osborne, Q.C. released his report titled the Civil Justice Reform Project (the “Osborne Report”). In that report, the former Associate Chief Justice of Ontario identified potential areas of reform and made recommendations to make the civil justice system more accessible and affordable. Of particular note were Justice Osborne’s recommendations in respect of summary judgment.
At the time of the Osborne Report, there was general consensus amongst the Bar that the rule governing summary judgment was not working, and consequently, very few motions for summary judgment were brought. In particular, the Osborne Report included the following observation:
Both lawyers and Superior Court judges said that the Court of Appeal’s view of the scope of motion judges’ authority is too narrow. Whether this view is correct can be debated. Whether it exists is beyond debate. The cost consequences from a failed summary judgment motion have also been said to be too onerous, deterring many litigants and their counsel from using rule 20.
Following the release of the Osborne Report, the legal community responded through the implementation of significant reform to the Rules of Civil Procedure, particularly Rules 20 and 21. Broadly stated, the changes largely followed the Osborne Report’s recommendations which were designed to:
- recognize proportionality;
- reduce delay and costs;
- promote early disposition;
- improve access to justice for self-represented litigants; and
- provide flexibility.
Of particular note are the following specific changes to the Rules of Civil Procedure which came into effect on January 1, 2010:
- The need for a finding that there is no genuine issue for trial is replaced the court being satisfied there is no genuine issue requiring a trial;
- The court's powers are expanded to permit a judge to weigh evidence, evaluate the credibility of a deponent and draw any reasonable inference from the evidence;
- To assist in exercising its powers, a mini-trial can be held at which oral evidence can be presented by one or more parties;
- If summary judgment is refused or granted in part, the court is given greater powers to control the case.
- The presumption of substantial indemnity costs against an unsuccessful moving party in a summary judgment motion is replaced with judicial discretion to order substantial indemnity costs if the moving party acted unreasonably or in bad faith for the purpose of delay.
Given the significance of the changes to the rules, litigation quickly followed the enactment of the changes.
Hryniak v. Mauldin
In May, 2010, only five months after the changes to the Rules of Civil Procedure came into effect, Justice Grace of the Superior Court of Justice heard a motion for summary judgment in Hryniak v. Mauldin. Justice Grace concluded that a trial was not required and granted judgment against Hryniak in the amount of $1 million USD. In granting summary judgment, Justice Grace remarked that he did not believe Hryniak’s evidence. On appeal to the Court of Appeal for Ontario, Hryniak argued that it was not in the interest of justice for the motion judge to exercise the expanded powers under the Rules of Civil Procedure since a trial was, in fact, required. The Court of Appeal agreed. Hryniak appealed to the Supreme Court of Canada.
On January 23, 2014, the Supreme Court of Canada released its decision. Writing for the Court, Justice Karakatsanis opened the decision with the following commentary on access to justice and how summary judgment ought to be used to ameliorate matters:
Ensuring access to justice is the greatest challenge to the rule of law in Canada today. Trials have become increasingly expensive and protracted. Most Canadians cannot afford to sue when they are wronged or defend themselves when they are sued, and cannot afford to go to trial. Without an effective and accessible means of enforcing rights, the rule of law is threatened. Without public adjudication of civil cases, the development of the common law is stunted.
Increasingly, there is recognition that a culture shift is required in order to create an environment promoting timely and affordable access to the civil justice system. This shift entails simplifying pretrial procedures and moving the emphasis away from the conventional trial in favour of proportional procedures tailored to the needs of the particular case. The balance between procedure and access struck by our justice system must come to reflect modern reality and recognize that new models of adjudication can be fair and just.
Summary judgment motions provide one such opportunity.
In interpreting these provisions, the Ontario Court of Appeal placed too high a premium on the "full appreciation" of evidence that can be gained at a conventional trial, given that such a trial is not a realistic alternative for most litigants. In my view, a trial is not required if a summary judgment motion can achieve a fair and just adjudication, if it provides a process that allows the judge to make the necessary findings of fact, apply the law to those facts, and is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial.
To that end, I conclude that summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims.
Changes to the Family Law Rules
While the Terms of Reference guiding the contents of the Osborne Report did not specifically address family law, the principles and recommendations contained therein have undoubtedly shaped the current landscape of summary judgment motions in family law. On May 2, 2015 several changes to Rule 16 of the Family Law Rules, which rule governs summary judgment, went into effect. To a large extent, these changes mirror the changes to the Rules of Civil Procedure. Broadly stated, the changes include the following:
- expanding the court’s powers to weigh the evidence, evaluate the credibility of a deponent and draw any reasonable inference from the evidence;
- creating the opportunity for oral evidence or a mini trial;
- removing the provisions in respect of costs which obligated the court to decide costs on a full recovery basis in respect of an unsuccessful motion for summary judgment.
Schedule A to this paper identifies all changes.
Developing Body of Case Law and the New Approach to Summary Judgment in Family Law
Since coming into effect on May 2, 2015, the new summary judgment rules under the Family Law Rules have been judicially interpreted and applied in many cases. Early cases confirmed the principles in Hryniak apply to a motion for summary judgement in a family law matter. Four such early cases of particular note are Philion v. Philion, A.E.A. v. F.A.H., and Turk v. Turk.
One of the earliest cases decided under the new rules was Philion v. Philion. In that case, Justice Kent adopted and applied the two-part test in Hyrniak as follows:
- First, the motions judge should take a liberal approach only on the evidence before her, without using the new fact-finding powers under the second part of this test. If the summary judgment process provides the motions judge with the evidence required to justly determine the motion, it will be held that there is no genuine issue requiring a trial; and
- Second, if there appears to be a genuine issue requiring a trial, the motions judge is entitled, at his discretion, to weigh evidence, evaluate credibility, and draw reasonable inferences, in order to determine if the need for a trial can be avoided by using these new tools to come to a fair and just result.
In A.E.A. v. F.A.H., Justice Sherr helpfully expanded upon the principles enunciated in Hryniak with his definition of the approach that is to be applied on a family law motion for summary judgment:
- Determine if there is a genuine issue requiring a trial based only on the evidence before the judge, without using the judge's new fact-finding powers.
- If there appears to be a genuine issue requiring a trial, based on the record before the judge, the judge should then determine if the need for a trial can be avoided by using the new powers. These powers involve the weighing of evidence, evaluating credibility, drawing inferences, and possibly receiving oral evidence on the motion. The use of these powers is discretionary, provided that they do not run contrary to the interests of justice. Their use will not be against the interests of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.
- If there are concerns about credibility or clarification of the evidence then those issues can be addressed by calling oral evidence on the motion itself. This power should be employed when it allows the judge to reach a fair and just adjudication on the merits and it is the proportionate course of action. While this is more likely to be the case when the oral evidence required is limited, there will be cases where extensive oral evidence can be heard on the motion for summary judgment, avoiding the need for a longer, more complex trial and without compromising the fairness of the procedure.
- Where a party seeks to lead oral evidence, it should be prepared to demonstrate why such evidence would assist the motion judge in weighing the evidence, assessing credibility, or drawing inferences and to provide a "will say" statement or other description of the proposed evidence so that the judge will have a basis for setting the scope of the oral evidence.
- There will be no genuine issue requiring a trial if the summary judgment process provides the court with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and appropriate procedure.
Family law summary judgment cases have continued to apply the Hryniak principles without hesitation. Justice Kiteley’s decision in Turk v. Turk, referred to throughout this paper, is a thoughtful and thorough decision which should be read by any lawyer contemplating bringing a motion for summary judgment.
Summary Judgement and the Primary Objective of the Family Law Rules
There is no doubt the changes to the rules governing summary judgment in family law were borne of the need to promote proportionality and access to justice. That goal, however, must be balanced with the need to ensure fairness. This necessary balancing is enshrined in the primary objective of the Family Law Rules which states the following:
The primary objective of these rules is to enable the court to deal with cases justly.
Dealing with a case justly includes,
(a) ensuring that the procedure is fair to all parties;
(b) saving expense and time;
(c) dealing with the case in ways that are appropriate to its importance and complexity; and
(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.
In Turk, Justice Kiteley recognized the balance and noted the following:
At paragraph 50 [of Hyrniak], the [Supreme] Court observed that those principles are interconnected and all speak to whether summary judgment will provide a fair and just adjudication. When a summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost effective. Similarly, a process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve a dispute. The court held that it bears reiterating that the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.
The judge’s need for confidence in his or her decision underscores the importance of the principle of fairness of the procedure. Without the requisite confidence, summary judgment will, simply put, not be granted. Counsel would be wise to step back from their motion and query whether the evidence being relied upon will give the judge sufficient confidence in granting summary judgment.
The Onus on a Motion for Summary Judgment
According to Justice Kiteley in Turk v. Turk:
The moving party has the burden of establishing a prima facie case that there is no genuine issue requiring a trial. If that burden is met, the onus shifts to the responding party "to set out specific facts that there is a genuine issue that requires a trial". It is this evidentiary burden that "enables the motions judge to assess . . . whether he or she is confident that the factual record provides the evidence required by the court to take a good hard look at whether the claim or defence can be adjudicated justly without requiring a trial".
The Mini Trial
Oral evidence was not contemplated under the old summary judgment rules. Rule 16(6.2) now provides for the following under the heading “Oral Evidence (Mini-Trial)”:
The court may, for the purposes of exercising any of the powers set out in subrule (6.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.
In Turk, Justice Kiteley considered whether a mini-trial was appropriate. In declining to order a mini-trial, Her Honour observed the following:
Given that inevitability, I see no point in ordering a mini-trial on any of the issues raised in this notice of motion. It would not be in the interest of justice to order a mini trial on whether the separation agreement should be set aside and duplicate much of that evidence in the trial of the s. 15.2 issues; nor would it be consistent with the primary objective to deal with a case justly because of the need to conserve the limited judicial resources and maximize their output. A trial is the only process that will allow a fair adjudication of the issues that will lead to a just result and at the same time, maximize judicial resources. Furthermore, a trial is proportionate to the complexity of the issues and is timely and cost-effective.
The principles on which Justice Kiteley relies in declining to make an order for a mini-trial seemingly dovetail into the considerations a court will make in deciding if a case should be split. In Simioni v. Simioni, Justice Quigley identified the following considerations when decision whether to sever an issue from a case:
- Whether the issues for the first trial are relatively straightforward and the extent to which the issues proposed for the first trial are interwoven with those that will arise in the second;
- Whether a decision from the first trial will likely put an end to the action, significantly narrowing the remaining issues or significantly increasing the likelihood of settlement;
- The extent to which resources have already been devoted to all issues;
- The possibility of delay; and
- The advantages or prejudice the parties are likely to experience and whether the severance is sought on consent or over the objections of one or more parties.
While there is a general reluctance to split a case in family law, a court may be inclined to do so where the resolution of a threshold issue could eliminate further litigation. That said, fairness and justice always remain the dominant considerations.
Counsel may be wise to frame the relief sought on a motion for summary judgment with regard to not only the circumstances in which a mini-trial will be ordered, but also with regard to the considerations that will be made in splitting a case.
Evidence on a Motion for Summary Judgment
While not a new principle, it is imperative that all parties, not just the moving party, put their best foot forward on a motion for summary judgment. Given that the onus shifts to the responding party in the event the moving party establishes a prima facie case, the quality and thoughtfulness of the responding party’s evidence is just as important. Indeed Justice Kukurin observed the following in Children's Aid Society of Algoma v. E.W.
One of the principles in the body of case law dealing with summary judgment is that simple denials by respondents on such motions are not enough. The reply must provide some detailed responses to the pertinent factual allegations that the motion applicant puts before the Court. In other words, the respondents on a summary judgment motion must put their "best foot forward" and cannot rely on bald assertions or mere denials. This "best foot forward" requirement is mentioned in many decisions, some recently such as Bruvels v. Guindon (2000), 95 A.C.W.S. (3d) 699,  O.J. No. 875 (Ont. Fam. Ct.), and R.A. v. Jewish Family and Child Services (2001), 102 A.C.W.S. (3d) 554,  O.J. No. 47 (Ont. S.C.). These and other decisions are, of course, concerned with rule 20 of the Rules of Civil Procedure.
It may well be that the Family Law Rules may be deficient in not having a provision like subrule 20.04(1) of the Rules of Civil Procedure which codifies the "best foot forward" principle. Subrule 20.04(1) provides:
20.04(1) In response to affidavit material or other evidence supporting a motion for summary judgment, a responding party may not rest on the mere allegations or denials of the party's pleadings, but must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue for trial.
In Children's Aid Society of Toronto v. K.T. and C.W., supra, Justice Jones resorted to subrule 1(7) of the Family Law Rules to fill this gap by referring to, or importing, the requirements of subrule 20.04(1) of the Rules of Civil Procedure for summary judgment motion in this Court. Quite appropriately, she pointed out at paragraph :
In order successfully to winnow out cases that do not require a trial, a court must have before it a full evidentiary record. If the moving party were to present a prima facie case for summary judgment to the court, only to be defeated by a mere allegations or denials by a responding party, the rule would have no teeth. In order to have a useful and effective summary judgment rule, the responding party, faced with a prima facie case for summary judgment, must provide evidence of specific fact showing that there is a genuine issue for trial or risk losing. Mere allegations or blanket denials, or self-serving affidavits not supported by specific facts showing that there is a genuine issue for trial must be insufficient to defeat a claim for summary judgment in such cases.
The responding party’s evidentiary obligation is enshrined in the Family Law Rules which provides that in response to the affidavit or other evidence served by the moving party, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial.
While similarly not novel, it is worth noting that hearsay evidence on a motion for summary judgment is treated differently than hearsay evidence on a regular motion. Recall that the Family Law Rules provide the following in respect of the admissibility of hearsay evidence on a regular motion:
The affidavit may also contain information that the person learned from someone else, but only if,
(a) the source of the information is identified by name and the affidavit states that the person signing it believes the information is true; and
(b) in addition, if the motion is a contempt motion under rule 31, the information is not likely to be disputed.
In the context of a motion for summary judgment, however, the rules governing hearsay evidence are much more strict and reliance on such evidence will likely be unhelpful. In particular, the Family Law Rules provide that if a party's evidence is not from a person who has personal knowledge of the facts in dispute, the court may draw conclusions unfavourable to the party.
Discussing this issue very issue, Justice Kukurin stated the following:
On the other hand, on a summary judgment motion, the Court cannot avoid its proper function of weighing the evidence before it. That this is so is confirmed by subrule 16(5) of the Family Law Rules, which is phrased somewhat differently from rule 20.07 of the Rules of Civil Procedure. This provision is from the Family Law Rules:
16.(5) Evidence not from personal knowledge.-- If a party's evidence is not from a person who has personal knowledge of the facts in dispute, the court may draw conclusions unfavourable to the party.
and this from the Rules of Civil Procedure:
20.02 An affidavit for use on a motion for summary judgment may be made on information and belief as provided in subrule 39.01(4), but on the hearing of the motion an adverse inference may be drawn, if appropriate, from the failure of a party to provide the evidence of persons having personal knowledge of contested facts.
This makes it abundantly clear that the quality of the evidence before the Court is very definitely a basis for the weight to be assigned to such evidence. In fact, if the words in subrule 16(5) "the court may draw conclusions unfavourable to the party" do not expressly permit the Court to make adverse findings of credibility, I am at a loss to understand what they do mean.
Counsel should be careful to ensure evidence is properly before the court and, to the greatest extent possible, avoid the use of hearsay evidence. In addition, particular attention should be paid to Justice Bondy’s helpful list of thirteen evidentiary considerations on a motion for summary judgment. Those considerations are reproduced at Schedule B.
Costs Under the New Summary Judgment Rules
The changes to the Family Law Rules which came into force on May 2, 2015, eliminated specific costs provisions in respect of a summary judgment motion. Prior to the changes, there was a presumption of full recovery of costs following an unsuccessful motion for summary judgment. Rule 16 is now silent in respect of costs. In the result, reliance must be had on the traditional principles in respect of costs together with Rule 24 of the Family Law Rules. For example, the traditional costs analysis was applied in A.P. v. F.D. without any mention of the prior presumption of full recovery. Similarly, in Booth v. Booth, Justice Sheard also applied a traditional costs analysis (although, in that motion, the moving party was successful).
Perhaps the most comprehensive costs decision since the changes to the Family Law Rules went into effect is Justice Kiteley’s decision Turk v. Turk. After embarking upon a traditional costs analysis, Justice Kiteley notes the following of particular relevance to costs following an unsuccessful motion for summary judgment:
(g) in the context of recent amendments to the Family Law Rules with respect to summary judgment motions, the court ought to be cautious about establishing rigid principles as to consequential costs orders too soon
(h) in a motion for summary judgment that is dismissed and therefore the case will continue, it is difficult, if not impossible, to decide at this stage, the extent to which services rendered ostensibly in relation to the motion will also be relevant to the balance of the proceeding. Furthermore, assuming the matter does not settle and is resolved after a judgment at trial, the trial judge will be met with the challenge of deciding which of the costs contained in the bill of costs were ordered compensable at the stage of the motion for summary judgment and which were not and which might be compensable depending on the outcome of the trial. The burden of proving to the satisfaction of the trial judge which services and disbursements have already been paid and which were not should fall on the party who received compensation following the motion for summary judgment. To facilitate that later process, the motions judge should clarify, in a summary manner, what is compensable;
(i) this motion for summary judgment started before the Family Law Rules were amended and, as motions are pursued after the amendment, counsel will be attuned to providing a bill of costs that distinguishes between those services rendered solely as a result of the motion (such as responding affidavits and factum) and those rendered in the context of the motion but which, should the motion be dismissed, will also be relevant to the continuation of the proceeding.
Justice Kiteley’s comments are instructive insofar as the preparation of a Bill of Costs is concerned following a motion for summary judgment. Counsel must be careful to identify those costs which were incurred for the sole purpose of the motion and those which, if the motion is unsuccessful, will be relevant to the ongoing proceedings.
The Unsuccessful Motion for Summary Judgment – Next Steps
A motion for summary judgment does not end following its dismissal. Rather, the court is given discretion to make an order in accordance with Rule 1(7.2) and give directions or impose conditions on how the case should proceed. This is an opportunity for counsel to obtain orders from the court and submissions should likely be made on this point.
About the author
Adam Black, Torkin Manes LLP
This paper was originally prepared for The Law Society of Upper Canada’s Continuing Professional Development program titled, 11th Annual Family Law Summit, held on March 6 & 7, 2017.
 Civil Justice Reform Project: Summary of Findings and Recommendations (2007) (the “Osborne Report”).
 Osborne Report, supra note 1, at page 33.
 Osborne Report, supra note 1, at page 40.
 Despite finding that summary judgment was not appropriate in this case, the Court of Appeal for Ontario embarked upon a determination of whether a sufficient evidentiary record existed to support Justice Grace’s finding that Hryniak had perpetrated a fraud. Such a record was found to exist and the judgment against Hryniak was upheld.
 Hyrniak v. Mauldin, supra note 5, at paras. 1 to 5.
 As defined by the, then presiding, Attorney General of Ontario, Michael Bryant.
 As set out in O. Reg. 69/15.
  O.J. No. 3587.
  O.J. No. 3291.
  O.J. No. 5099.
 Philion, supra note 9, at para. 17.
 A.E.A. v. F.A.H., supra, at paras. 8 to 13.
 Family Law Rules, O. Reg. 114/99, R. 2(2) and (3).
 Turk, supra note 11, at para. 37.
 Turk, supra note 11, at para. 47.
 Family Law Rules, O. Reg. 114/99, R. 16(6.2).
 Turk, supra note 11, at para. 102
 Simioni v. Simioni,  O.J. No. 174.
 J.L.L. v. S.B.L.,  O.J. No. 1703.
 General Refractories Co. of Canada v. Venturedyne Ltd.,  O.J. No. 746, at para. 10
  O.J. No. 2746, at paras. 33 to 36.
 Family Law Rules, O. Reg. 114/99, R. 16(4.1).
 Family Law Rules, O. Reg. 114/99, R. 14(19).
 Family Law Rules, O. Reg. 114/99, R. 16(5).
 Children's Aid Society of Algoma v. E.W.,  O.J. No. 2746, at paras. 27 and 28.
  O.J. No. 2320.
  O.J. No. 2320.
 Turk v. Turk,  O.J. No. 597, at para. 20.
 Family Law Rules, O. Reg. 114/99, R. 16(9).