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.

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