“Under r. 16(6) of the Family Law Rules, O. Reg. 114/99, the court “shall make a final order” if there is no genuine issue of a claim or defence requiring trial. Pursuant to r. 16(6.1), the court may exercise special fact-finding powers in determining whether there is a genuine issue requiring a trial unless it is in the interest of justice that these powers only be exercised at a trial. If the only genuine issue is a question of law, the court shall decide the issue and make a final order.
Rule 16 is a codification of the summary judgment principles articulated by the Supreme Court of Canada in Hyrniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87; see also Phillion v. Phillion, 2015 ONSC 4255.
In Hryniak, at para. 45, the Supreme Court of Canada confirmed that summary judgment is “a significant alternative model of adjudication.” The fact-finding rule provides judges the power to weigh evidence, evaluate credibility, and draw inferences to resolve claims without the need for a trial.
The focus in a summary judgment motion is not on what further evidence could be adduced at trial, but rather, on whether a trial is required. A trial will not be required when the summary judgment 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”: Hryniak, at para. 49.
The determination of a motion for summary judgment involves a two-step approach. The judge should first determine whether there is a genuine issue requiring a trial based only on the evidence before her, without using the fact-finding powers. If there is no genuine issue requiring a trial, summary judgment must be granted. However, if there appears to be a genuine issue requiring a trial, the judge should then determine whether “the need for a trial can be avoided” by using the fact-finding powers to weigh evidence, evaluate credibility, and draw inferences: Hryniak, at paras. 66-68.
On a motion for summary judgment, the moving party must establish a prima facie case that there is no genuine issue requiring a trial. Only then does the onus shift to the responding party. However, it is not sufficient for the responding party to simply rely on allegations in their pleadings. The responding party must set out, in affidavit material or other evidence, specific facts showing there is a genuine issue requiring a trial. Both parties must put their “best foot forward”, and the court is entitled to assume that the record contains all the evidence that the parties would present if the matter proceeded to trial.
In this case, the Respondent must establish that there is no genuine issue requiring trial in relation to the Applicant’s claim that the Separation Agreement ought to be set aside in its entirety, or in part. If he does, then the onus shifts to the Applicant to demonstrate that there is a genuine issue requiring a trial based on competing evidence that throws material facts into dispute, the assessment of which should be deferred to a trier of fact because, for example, assessment of credibility is warranted.”