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  • Summary Judgement

    So as I have just been made aware from the other party of their desire to take this matter all the way to trial even though we havn't done a Case Conference yet, I am hoping to gain some assistance if a Summary Judgement may be appropriate in this case. I know they are extremely rare, but I'd like to seek out any assistance or opinions on the matter. I did hint on this in another post I made, however I felt it may be better to make this its own thread for an easier way of searching for information.

    Background

    1. The Respondent and I began our relationship in 2011 which subsequently ended in 2013.

    2. After separating with the Respondent, I moved away with my Son, while the Respondent remained in Petawawa.

    3. Between 2013 and 2016 there was no Court Order established.

    4. In 2014 The Respondent and I agreed to parenting-time being afforded through supervised visits. Additionally, various other conditions were imposed on the Respondent such as:
    • No contact from the Respondent outside of email correspondence;
    • Removal of parenting-time if child support is not paid;
    • Supervised visitations; and
    • The Respondent’s Mother was not allowed to be present due to the arguments that would ensue between the Respondent and her in front of my Son.


    5. In 2016, due to the Respondent’s supervised parenting-time becoming more and more sporadic and the Respondent refusing to pay child support, I submitted an Application to the court to begin this present Family Court case.

    6. At the conclusion of the 2016 Case Conference, the following orders were provided on consent in addition to standard clauses:
    • I obtained primary residence of My Son;
    • I obtained full decision-making responsibility in context that I had to consult with the Respondent, however if there was a disagreement with respect to the decision, I was at liberty to make the final decision; and
    • The Respondent obtained 20-22% parenting-time dependant on the year.


    7. In April 2019, the Respondent submitted a Motion to Change seeking a decrease in support for my Son. During this time, the Respondent provided me with the ability to have the term “sole custody” on the 2019 Order for $1000.00 off of his arrears.

    8. On November 11th, 2019, the Respondent informed me he was voluntarily quitting his job within the Canadian Armed Forces and was moving in with his mother. As a result, the Respondent stated he was going to be seeking to have 50/50 decision-making responsibility and parenting-time with my Son due to being in the same town.

    Circumstances of Current Motion to Change

    9. On May 4th, 2021, after over a year of failed negotiations between the Respondent and I, a Motion to Change was submitted by me seeking the following amendments:
    • Increase of the geographical radius in which I could live from 100km to the Province of Ontario; and
    • Increase of Child Support to be based on the Respondent’s new income of $171,187.


    10. Between May and June 2021, the Respondent and I began further negotiations and came to an agreement which resulted in a Consent Motion to Change being signed by both parties on July 16th, 2021. This Order would provide the following;
    • Increase of the geographical radius in which I could live from 100km to 150km;
    • The Respondent acquires an extra weekend if I moved to outside of 100km;
    • The Respondent obtained open communication with my Son via his cellphone;
    • My Son acquired the ability to make the final decision on additional parenting-time with the Respondent;
    • The Respondent acquired the Friday or Monday of long weekends that fell within his parenting-time;
    • The Respondent obtained an extra week of parenting-time with my Son during his summer vacation; and
    • The Respondent was required to pay $7,500 in arrears to equate to the increase of his income to $171,187.

    11. The Consent Motion was submitted to the court and the Respondent had paid me the $7,500 in arrears. Additionally, the Respondent utilized his additional week of parenting-time with my Son as well as the open communication and the utilization of my Son having the final decision-making power with regards to the Respondent’s additional parenting-time.

    12. On August 10th, 2021, both parties received an endorsement from a Judge stating “The Motion to Change and Consent Motion to Change do not match on the issue of child support arrears, parties are to clarify. Both parties should file a 14A Affidavit to confirm the amount of arrears.”

    13. I had submitted my Affidavit and informed the Respondent and his lawyer of their responsibility to do so many times.

    14. On November 26th, 2021, the Respondent initiated Court proceedings seeking to have split decision-making responsibility, majority parenting-time, and having my Son reside at his residence.

    15. As there is currently a 10 year status quo in which the Respondent has not held court ordered decision-making of my Son since birth, nor has the Respondent had more than 25% parenting-time, I had questioned the motive behind this change.

    16. It was noted in the Respondent’s Motion to Change the following material change of circumstances that warranted the drastic removal of the 10 year status quo:
    • That beginning September 2021, my Son began living with his maternal grandparents;
    • That my Son only resides with me during alternative weekends due to my attendance of post-secondary education;
    • That the Respondent had my Son “at least 50% of the time”; and
    • That reasonable additional parenting-time requested by the Respondent has been refused on a frequent basis.


    17. It should be noted that I have used my parents as before and after school care as well as occasional child care for both my Son and my Daughter. The Respondent is quiet aware of this as the Respondent had frequently used my parents as child care despite the limited him he has. This ended after he threatened physical violence toward my 75 year old Father in front of my Son resulting in a trespass order being placed on him.

    18. Both parties agreed to seek out the Office of the Children’s Lawyer prior to conducting a Case Conference on this matter. However, the Office of the Children’s Lawyer declined to accept the file.

    19. During the waiting period for the OCL, Family and Children’s Services were contacted three times. Once by me due to my son informing me the Respondent was physically abusing his dog, once by the Respondent a week later stating I was withhold court ordered access, and once by a third unidentified party (I believe it was a teacher) after my son informed someone he was being emotionally abused by the Respondent.

    20. All three Family and Children’s Services reports were provided to me after a disclosure request. As of today, the investigation into the emotional abuse is still ongoing, however all three reports state my Son does not want to spend any time with the Respondent as well as other statements such as my Son claiming he hates the Respondent.

  • #2
    Summary Judgement

    21. I am hoping to seek an Order for summary judgement dismissing the Respondent’s motion on the basis that the Respondent has not provided a single piece of evidence through Affidavits, or other mean, substantiating any of the claims outlines in his Response Motion to Change.

    22. I have submitted three Requests to Admit obtaining substantial information in relation to the Respondent’s allegations that indicate the Respondent has no evidence in support of his claim of material change.

    23. The claims the Respondent has made, with the evidence provided as per the Response to the Request to Admit is as follows:
    a) My Son currently lives with his Maternal Grandparents.

    i. Respondent claims his evidence to support this claim is “personal observations, which can be corroborated by third parties”.

    ii. I have security camera footage within, and outside of my house proving the Respondent is wrong.

    iii. I have an Affidavit from the Maternal Grandparents stating the Respondent is wrong and they are willing to testify to that notion.

    iv. The “third parties” is believed to be the Respondent’s Mother.

    v. Family and Children Services has stated in their reports that my Son resides with me and not his grandparents.

    vi. Vast amount of documentation from hockey and school registration, medical and dental documents, as well as ServiceOntario documents all have my address for my Son and not his maternal grandparents.

    b) I fail to consult with the Respondent on important parenting decisions and rely on the “sole custody” provision to make unilateral parenting decisions.

    i. Respondent stated this was based on “personal observations”

    ii. We use an app suggested through the Family Court for all correspondence which I have submitted an Affidavit showing I have consulted with the Respondent on all matters.

    c) I unreasonably refuse additional parenting-time.

    i. I have submitted an Affidavit showing I have offered more time than the Respondent has sought out, I have only refused additional time three times in 2021 with reasonable reasons such as planned trips, and the Respondent has only sought additional parenting-time 9 times in 2021.

    d) Stated I refuse additional parenting-time because I get angry at the Respondent and I am “concerned about losing primary care for my Son for child support purposes”.

    i. Claims this is “a belief and not necessarily a fact”

    e) Claims I make negative remarks about him to my Son.

    i. Stated this is a “a belief and not necessarily a fact”

    24. The Respondent is additionally seeking child support to be based on the residency of the child (only if he obtained residency of the child) in order for him to not “pay the Applicant full table amount of child support as she will not be the primary care provider of the child anymore”

    25. I have requested the Respondent disclose any evidence proving any of his claims and he has refused to do so.

    Supporting Case Law

    26. In Chapman v. Chapman (2001), 141 O.A.C. 389 (CA), the Court held that in the absence of evidence that demonstrates a parent’s inability to act in the best interests of his or her children, a parent’s right to make decisions on his or her children’s behalf should be respected. These decisions include those about whom the children see, how often, and under what circumstances. This affirms that I am able to make the decision to allow my Son to visit his grandparents as I deem fit as, at no point, did this time affect the Respondent’s parenting-time.

    27. In Hryniak v. Mauldin, 2014 SCC 7 (CanLII), the Supreme Court of Canada established a road map outlining how a motions judge should approach a motion for summary judgment. The Court must first determine whether there is a genuine issue requiring a trial based only upon the evidence filed with the Court and without using the new factfinding powers set out in the 2010 amendments. It is my position that there is “no genuine issue requiring a trial with respect to the above information as the Respondent has claimed it is based on observations and beliefs while I am able to provide evidence in contradiction to the Respondent’s claims.

    28. In Children’s Aid Society of Toronto v. R.H., [2000] CanLII 3158 (Ont CJ) it was determined that specific facts reflecting a genuine issue for trial must be provided, not simply a heartfelt expression of a desire to resume care of the child. Mere denials do not raise triable issue of fact. The Respondent has failed to provide and evidence in support of his claims. Additionally, he stated his claims were based on belief and personal observations.

    29. In Children’s Aid Society of the Regional Municipality of Waterloo v. R.S., 2007 CanLII 13504 (Ont SC), it was determined that the court must review the entire evidentiary record in deciding whether a genuine issue for trial exists. The evidentiary record only contains items submitted my me. The Respondent has not submitted a single document in support of his allegations.

    30. In R.A. v. Jewish Family and Child Services, [2001] O.J. No. 47 it was determined that not every disputed fact or question gives rise to a finding that there is a genuine issue for trial. Even such, all of the disputed facts have been supported with evidence.

    Conclusion

    31. In this case, the Respondent has not provided a single piece of evidence through Affidavits or other means substantiating any of the claims outlined in his Response Motion to Change. On the other hand, I have provided evidence via Affidavit, planned testimony, security footage, documentation, and message logs effectively disproving and/or contextualizing the Respondent claims.

    32. As there is sufficient evidence to justly and fairly adjudicate the dispute, a Summary Judgement would thus be available due to the motion being an affordable, timely and proportionate procedure. Even so, it is understood that the motions judge must still take a “hard look” at the evidence to determine whether it raises a genuine issue requiring a trial, and as a result each party must still put its “best foot forward” and submit cogent and compelling evidence to support or oppose the relief sought.

    33. Throughout the entire process that began on November 26th, 2021, I have made multiple attempts to request disclosure of any evidence with negative results. Due to this, in combination with the Office of the Children’s Lawyer declining the conduct an assessment, and the three reports from Family and Children’s Services, it would be in the best interest of all to expedite and resolve this case by avoiding an unnecessary trial, thus reducing the legal costs of both parties.

    It should be noted that at this point we have not participated in our Case Conference yet. We were waiting to see of OCL would accept this file and we had just learned they will not. However, the Respondent has inferred his desire to take this matter to trial so due to this, I am seeking to prepare as much information as I can.

    I know Summary Judgements are extremely rare as I am effectivly asking a Judge to remove the other parties right to their day in court, but I personally believe this matter would fit the threshold for one.

    I am currently self-representing and due to my very limited funds, I am obtaining as much information as possible before seeking the assistance of a lawyer. If I can establish if a Summary Judgement would be appropriate for this, I will obtain a lawyer to do it, but I'd rather not spend the funds if it is not an appropriate option. This is why I am seeking assistance.

    Comment


    • #3
      Ok you and your wife (or you and your husband—whichever you are posting this) need to both take a deep breath and stop letting this consume you. It is way too early to start thinking of anything else but the upcoming case conference. Plenty of people on this forum have already told you multiple times you need to take a step back and do the conference first where a judge will more than likely advise how this case is going to go.

      Everything that has been said indicates the other party does not have enough for a material change in circumstances so unless you aren’t posting something else, there really isn’t much you can do but wait.

      Summary judgement is reserved for specific cases and yours does not even come close to any I have seen in my search of canlii. Your matter does not have any indication it requires it and the opposing party has a right to present their case. Stop stressing about this or at least get a lawyer to tell you the same.

      Comment


      • #4
        That was a good read. You have been thinking a lot.
        I think of case conferences as free legal opinion from the bench.
        A motion for a Summary Judgement costs you money if you lose and the CC nada unless the judge really thinks your court behavior is very bad.

        You can make offers now, offer less time and have them take counselling too.

        You can include a draft settlement offer in your brief that is basically what you want and stick to your principals; one a judge will hopefully not give a "this is not reasonable" to. Make sure you ask and do so as if you are asking royalty.

        So if the OCL will not take the case does that mean the VOC will not either?
        Last edited by pinkHouses; 02-20-2022, 01:28 PM.

        Comment


        • #5
          I believe VOC can only be ordered by a judge.

          Comment


          • #6
            I believe OCL is the same, which by the repeated "prior to a cc" makes me think police or cas were involved in a motion.

            OPs- I know it sucks to hear, but you really need a lawyer. A lot of that doesn't make sense and/or could be used against you. You may have a case for summary judgement, but a proper understanding of the file is needed by a lawyer or maybe flic could offer quick advice.

            Comment


            • #7
              Strategy:
              Stop communicating anything about the items in question to your ex or their lawyer. Even if you are 100% right they can twist it to increase the mess and cost.

              To save money a limited retainer lawyer, but I guess you know that.

              Comment


              • #8
                Originally posted by StillPaying View Post
                OPs- I know it sucks to hear, but you really need a lawyer. A lot of that doesn't make sense and/or could be used against you. You may have a case for summary judgement, but a proper understanding of the file is needed by a lawyer or maybe flic could offer quick advice.
                Doesn’t suck to hear at all I just wanted to make sure I had a case for a summary judgement before spending the money on a lawyer to hear otherwise. I may still hear otherwise but if there is 100% chance I won’t bother right now but if there is a chance then I will likely do it after some more research.

                Comment


                • #9
                  Originally posted by Hide on Bush View Post
                  Doesnâ€[emoji769]t suck to hear at all I just wanted to make sure I had a case for a summary judgement before spending the money on a lawyer to hear otherwise. I may still hear otherwise but if there is 100% chance I wonâ€[emoji769]t bother right now but if there is a chance then I will likely do it after some more research.

                  You are getting really deep into themes and possible outcomes before anything had happened with a first conference. The judge may end up giving you a better idea of how this will play out going forward. I know you are worried about your wife and your wife is terrified of what her ex will do but you both would benefit from a little patience. A lawyer would tell you the same thing.

                  Comment

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