Smith v. Morrison 2009

This case was heard in the Ontario Court of Justice by Justice Hoshizaki. The Applicant father, Mr. Smith, brought a motion for summary judgment for custody of his two children and supervised access to the Respondent, Ms. Morrison.

In determining whether a summary judgment should be granted, Justice Hoshizaki relied on the parties’ affidavit evidence as well as Rule 16 of the Family Law Rules.

Rule 16 states that after the Respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without trial on all or part of any claim made or any defense presented in that case. The party making the motion is required to provide affidavit evidence that set outs specific facts to demonstrate that there is no genuine issue that requires trial.

Justice Hoshizaki considered the affidavit evidence of both parties and found that the Respondent Mother’s affidavit evidence did not address the concerns that were brought forth by the Applicant Father regarding her mental health and substance abuse problems. Alternatively, the Respondent Mother focused on attacking the Applicant Father in her affidavit documents.

It was clear from the evidence that the facts significantly favored the Applicant Father in this case. The summary judgment was therefore granted as the judge felt that a trial with viva voce evidence (oral evidence) and cross examination was not necessary. The Applicant Father was granted custody of the children and the Respondent Mother was granted with supervised access every second weekend from Friday at 6:00 p.m. until Sunday at 6:00.p.m. and any other access as agreed upon.

It is important to note that generally speaking, counsel should be cautious of proceeding by way of a summary judgment as it may not be applicable in custody cases where there is the need to hear all of the oral evidence from both parties in order to determine the children’s best interests.

Andrew Feldstein

The Feldstein Family Law Group (FFLG) is one the largest family law firms that practices Family Law exclusively in Greater Toronto, with ten lawyers and counting. The boutique law firm has won the Top Choice Award for Family Law™ in Toronto for the past eleven years (2007 to 2017 inclusive).

Managing Partner Andrew Feldstein has been practicing family law for more than 20 years and frequently comments on Family Law issues through the media. The Feldstein Family Law Group offers vast written, video, and media resources on its website to those who find that they need to end their relationship.

This Post Has One Comment
  1. Justice Hoshizaki was correct in granting summary judgment in this case. A trial and the steps to reach trial would unnecessarily burden the parties and the courts in time and money. The Mother did nothing to put forth her case and, in fact ignored orders. A speedy resolution to this case was in everyone’s best interest.

    I am somewhat surprised that a 48 hour period of access was granted. I would have thought, based on the facts, that daytime supervised access might have been more appropriate under the circumstances with a gradual increase to overnight supervised. One would hope that given the foregoing order the Mother would take the necessary steps to seek help and follow through. For the sake of the children and her relationship with them perhaps she will.

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