CITATION: Walsh v. Tober, 2023 ONSC 7111

DIVISIONAL COURT FILE NO.: DC-23-177

DATE: 20231221

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

Lococo, Emery and Schabas JJ.

BETWEEN:

Charlene Walsh

Applicant (Respondent in appeal)

– and –

Anthony Tober

Respondent (Appellant)

Edwin W. Paget, for the Applicant (Respondent in appeal)

Anthony Tober, Respondent (Appellant), acting in person

Shelley D. McIntyre, for the parties’ child

HEARD in Hamilton: November 1, 2023, by video conference

REASONS FOR JUDGMENT

R. A. LOCOCO J.

I. Introduction

[1] The appellant Anthony Tober appeals the following orders of Justice Giulia Gambacorta of the Superior Court of Justice: (i) the final order dated December 6, 2022, granting summary judgment to the respondent in appeal Charlene Walsh, and (ii) the order dated January 13, 2023, awarding costs to Ms. Walsh. The motion judge provided written reasons for the summary judgment decision (“SJ reasons”) and for the costs decision (“costs reasons”), which are unreported.

[2] The parties were in a common law relationship for 14 years. The orders under appeal were made in the context of a family application that Ms. Walsh brought after leaving the family home in 2020 with the parties’ son. The child is now16 years old and has no relationship with his father.

[3] Mr. Tober brought a summary judgment motion, seeking a final order for joint decision-making responsibility for the child and shared/equal parenting time. The motion judge dismissed Mr. Tober’s motion and granted Ms. Walsh’s cross motion for summary judgment, under which Ms. Walsh has sole decision-making responsibility and the child’s primary residence is with her. The final order also provides that Mr. Tober shall not have any parenting time with the child unless initiated by the child and only in accordance with the child’s wishes.

[4] Mr. Tober seeks to set aside the orders under appeal, alleging errors of law and fact in the motion judge’s decisions. He requests an order for, among other things, supervised parenting time with the child, joint decision-making responsibility with Ms. Walsh, and an investigation into Mr. Tober’s claims of parental alienation.

[5] For the reasons below, I would dismiss the appeal.

II. Background

A. Parties’ separation and subsequent events

[6] The parties began living in a common law relationship in 2006. Their son was born the following year. At the time of the summary judgment hearing in December 2022, the child was in grade ten but was unable to attend class due to a diagnosed anxiety disorder: SJ reasons, at paras. 6-7.

[7] The parties separated in November 2020, when Ms. Walsh left the family home to move to a women’s shelter. Ms. Walsh had moved out of the family home on previous occasions but the parties reconciled each time.

[8] Prior to the final separation, Ms. Walsh asked their son if he wanted to leave with her or stay with his father. The child left with Ms. Walsh and has not been in physical contact with his father since then: SJ reasons, at para. 8.

[9] In the period from November 8 to December 19, 2020, Mr. Tober sent inappropriate electronic communications to the child, who then blocked his father from further virtual communication. When the child unblocked his father in January 2021, Mr. Tober resumed inappropriate messages, which included emotional manipulation, suicidal expressions and messages berating Ms. Walsh: SJ reasons, at para. 9.

[10] During the period from November 2020 to March 2021, Mr. Tober contacted Niagara Regional Police on multiple occasions to complain that Ms. Walsh assaulted him on the day she left the family home. The police investigated those allegations and found no basis for laying criminal charges against Ms. Walsh. As well, Family and Child Services Niagara (“FACS”) found that the allegations were not verified and closed their child protection file: SJ reasons, paras. 10-11.

[11] In February 2021, Mr. Tober was arrested and charged with criminal harassment by telecommunication by way of numerous harassing text messages sent to Ms. Walsh. In June 2021, he was found guilty of that charge. He received a conditional discharge and an 18-month probation order with terms that included no communication with Ms. Walsh and participating in counseling: SJ reasons, at paras. 12, 14.

[12] In June 2021, at the child’s request, police met with Mr. Tober and advised him of the child’s request that Mr. Tober have no further electronic communication with the child. Mr. Tober complied with that request: SJ reasons, at pars. 13.

B. Family proceedings

[13] Ms. Walsh commenced a family application in December 2020, seeking “custody” of the child, child support and other relief. As requested by order of Gregson J. dated March 8, 2021, the child has had legal representation in these proceedings since April 13, 2021, through the Office of the Children’s Lawyer (“OCL”): see Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”), s. 89(3.1). A clinician with the OCL was assigned to assist the OCL lawyer who represented the child.

[14] The lawyer and the clinician interviewed the child on four occasions in the period from July 2021 to May 2022. They also met with the parties to share the child’s views and preferences regarding parenting time and primary residence. They advised the parties that the child was consistent in his wishes to (i) reside with Ms. Walsh, (ii) not have any parenting time with Mr. Tober, (iii) not to receive any communication with Mr. Tober by email or phone, and (iv) not to participate in counselling with his father or try to re-establish a relationship with him. They also noted that the child was dealing with anxiety issues: SJ reasons, at paras. 16-17.

[15] In preparation for the summary judgment motion hearing referred to below, the child’s lawyer and the clinician interviewed the child again in October 2022 to see if the child’s views and preferences had changed. His views had not changed. The child continued to suffer from anxiety, having been diagnosed by a psychiatrist (in April 2022) with “social and generalized anxiety disorder and functional impairment.” The child had been accepted into a treatment program and was to begin counselling shortly: SJ reasons, at paras. 17-18.

C. The parties’ summary judgment motions

[16] In October 2022, Mr. Tober brought a summary judgment motion, seeking a final order that included joint decision-making responsibility for the child and shared/equal parenting time. Ms. Walsh brought a cross motion for summary judgment, seeking a final order that included sole decision-making responsibility, the child’s primary residence with Ms. Walsh, and parenting time with the father at the child’s initiation and in accordance with the child’s views and preferences: SJ reasons, at paras. 2-3.

[17] The motion judge heard both summary judgments motions together on December 1, 2022. Mr. Tober was self-represented. Ms. Walsh was represented by counsel. An OCL lawyer represented the child.

[18] In the Summary Judgment Decision dated December 6, 2023, the motion judge dismissed Mr. Tober’s summary judgment motion and granted Ms. Walsh’s cross motion for summary judgment. In doing so, the motion judge determined that there was no genuine issue requiring a trial, applying the test set out in r. 16(6) of the Family Law Rules, O. Reg. 114/99 (“FLR”).

[19] The terms of the final order included the following: (i) Ms. Walsh has sole decision-making responsibility; (ii) the child’s primary residence is with Ms. Walsh; and (iii) the child shall not have any parenting time with Mr. Tober unless initiated by the child and only in accordance with the child’s wishes. Mr. Tober was also ordered to pay retroactive and ongoing child support to Ms. Walsh.

[20] Following written costs submissions (in which Ms. Walsh sought costs of $10,000), Mr. Tober was ordered to pay Ms. Walsh’s costs fixed at $6,000 within 45 days: costs reasons, at paras. 4, 20. Of that amount, $3,000 was deemed a support order enforceable by the Director of the Family Responsibility Office: see Family Responsibility and Support Arrears Enforcement Act, S.O. 1996, c. 31, ss. 1(1), 5-6.

[21] In the SJ reasons, when considering the parties’ competing claims, the motion judge noted that the child’s primary residence had been with Ms. Walsh for more than two years since the separation and found that Ms. Walsh had met all the child’s needs. The motion judge also noted that the child’s anxiety disorder continued to be monitored by medical professionals and that he was to commence a counselling program to address his anxiety issues. The motion judge found that it was in the child’s “best interest that the status quo continues to be maintained to provide him with the stability and consistency he needs, particularly while coping with an anxiety disorder”: SJ reasons, at para. 34.

[22] The motion judge also noted that Ms. Walsh, as the child’s primary caregiver since the separation, had made all decisions regarding the child and found that Ms. Walsh should continue to do so. The motion judge also found that Mr. Tober’s irresponsible conduct and harassing communications with the child following separation explained the breakdown of Mr. Tober’s contact with the child, rather than Mr. Tober’s allegations of alienating conduct by Ms. Walsh: SJ reasons, at para. 35. The motion judge also expressed the view that “the father’s behaviour has disentitled him from making important decisions” relating to the child: SJ reasons, at para. 36.

[23] With respect to parenting time, the motion judge found that after a “fulsome review of the evidence and having regard to the child’s best interests”, any parenting time between the child and Mr. Tober should be in accordance with the child’s wishes and at the child’s initiation: SJ reasons, at para. 38. In reaching that conclusion, the motion judge considered (among other things) the child’s age (soon to be 16), his anxiety disorder (which caused him to be aggravated when forced to do things against his will) and his consistent and clear wishes not to have any communication or counselling with his father. The motion judge noted that the child’s “emotional wellbeing, psychological safety, and security are the paramount consideration.” The motion judge also found that “forced parenting time would only serve to advance [Mr. Tober’s] own personal desire rather than the best interests of the child”: SJ reasons, at para. 38.

III. Jurisdiction and standard of review

[24] Mr. Tober appeals from the motion judge’s orders. As explained below, the Divisional Court has jurisdiction to hear this appeal.

[25] An appeal lies as of right to the Divisional Court from a final order of a judge of the Family Court (a branch of the Superior Court of Justice) made only under a provision of an Ontario Act or regulation: CJA, ss. 19(1)(a.1), 21.1. Since the orders under appeal were final orders made in Welland (a Family Court jurisdiction), the orders were made by a judge of the Family Court: CJA, ss. 21.2. As well, the orders were made only under Ontario statutes, being the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”) and the Family Law Act, R.S.O. 1990, c. F.3: see CJA, s. 21.8. Therefore, the Divisional Court has jurisdiction to hear this appeal.

[26] The appellate standards of review apply, as set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 8, 10, 19, 26-37.

[27] The standard of review is correctness for questions of law, including legal principles extricable from questions of mixed fact and law.

[28] The standard of review is palpable and overriding error for questions of fact and for questions of mixed fact and law (except as above), including with respect to the application of correct legal principles to the evidence. A palpable and overriding error is an obvious error that is sufficiently significant to vitiate the challenged finding: Longo v. MacLaren Art Centre, 2014 ONCA 526, 323 O.A.C. 246, at para. 39. The appellant must show that the error goes to the root of the challenged finding such that it cannot safely stand in the face of the error: Waxman v. Waxman (2004), 2004 39040 (ON CA), 186 O.A.C. 201 (C.A.), at p. 267, leave to appeal refused, [2004] S.C.C.A. No. 291.

[29] In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at paras. 80-84, the Supreme Court of Canada addressed the application of the appellate standards of review in the context of a summary judgment motion. Relying on the principles in Housen, the Supreme Court found as follows:

a. Absent an error of law, the motion judge’s exercise of powers under the summary judgment rule attracts deference;

b. Where the motion judge exercises their statutory powers and determines whether there is a genuine issue requiring a trial, that is a question of mixed fact and law, reviewable on the standard set out in Housen; and

c. Such deference is also owed to the determination of whether it is in the “interests of justice” for the motion judge to exercise their fact-finding powers in determining whether to grant summary judgment: see FLR, rr. 16(6), 16(6.1); Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“RCP”), rr. 20.04(2), 20.04(2.1).

[30] To warrant an appellate court’s intervention, an error in a decision under appeal must be material to the result. An appellate court shall not order a new trial unless some substantial wrong or miscarriage of justice has occurred: CJA, s. 134(6).

IV. Issues to be determined

[31] In this appeal, Mr. Tober seeks to set aside the motion judge’s orders, alleging errors of law and fact in the motion judge’s reasons. He requests an order for, among other things, supervised parenting time with the child, joint decision-making responsibility with Ms. Walsh, and an investigation into Mr. Tober’s claims of parental alienation.

[32] Mr. Tober submits that in refusing to grant summary judgement to him and granting summary judgment to Ms. Walsh, the motion judge erred in several respects, including the following:

a. Mr. Tober’s conduct (family violence): The motion judge erred in accepting Ms. Walsh’s inaccurate characterization of his conduct as family violence. Mr. Tober did not engage family violence as defined in the CLRA.

b. Ms. Walsh’s conduct: The motion judge erred in failing to give effect to Mr. Tober’s allegations of perjury, abuse, stalking and alcoholism against Ms. Walsh.

c. Parental alienation: The motion judge erred in failing to give effect to Mr. Tober’s claims of parental alienation against Ms. Walsh.

d. OCL’s performance of its duties: The OCL failed to perform its duties and exhibited bias against Mr. Tober. The motion judge should have required further investigation by an expert.

e. Decision-making authority and parenting time: The motion judge erred in granting Ms. Walsh sole decision-making authority and ordering the child’s parenting time with Mr. Tober to be at the child’s initiation and in accordance with his wishes.

f. Costs: The motion judge erred in the costs award to Ms. Walsh.

[33] I will address the above issues in turn.

V. Analysis

A. Mr. Tober’s conduct (family violence)

[34] Mr. Tober submits that the motion judge erred in accepting Mrs. Walsh’s inaccurate characterization of his conduct as family violence. Mr. Tober says that he did not engage in family violence as defined in the CLRA.

[35] As explained below, I see no reversible error in the motion judge’s findings.

[36] As the motion judge noted in the SJ reasons, at paras. 24-30 (under the heading “Best Interests of the Child”), the court in making a parenting order is required to “only take into account the best interests of the child”: CLRA, s. 24(1). In determining the child’s best interests, the court is required to consider all factors relate to the child’s circumstances, including any “family violence” and its impact on (i) the willingness of any person engaging in family violence to care for and meet the needs of the child, and (ii) the appropriateness of making an order that would require that person to cooperate in issues affecting the child: CLRA, ss. 24(2), 24(3)(j). The CLRA also sets out factors the court is required to take into account in considering the impact of family violence, including (i) whether there is a pattern of coercive and controlling behaviour in relation to a family member, and (ii) the physical, emotional and psychological harm or risk of harm to the child: CLRA, s. 24(4).

[37] In her decision, the motion judge highlighted the fact that Mr. Tober sent persistent manipulative electronic messages to the child and that Mr. Tober was found guilty of harassment by telecommunication against Ms. Walsh: SJ reasons, at paras. 9-14. After reviewing the CLRA provisions relating to the child’s best interests and family violence, the motion judge considered the evidence of Mr. Tober’s conduct (as well as the child’s vulnerable emotional and psychological state) when deciding the parenting issues before her: SJ reasons, at paras. 34-36, 38.

[38] In these circumstances, I see no palpable and overriding error in the motion judge’s findings of fact relating to such conduct nor was there any such error of mixed fact and law relating to the application of the statutory provisions to the evidence.

B. Ms. Walsh’s conduct

[39] Mr. Tober submits that the motion judge erred in failing to give effect to Mr. Tober’s allegations of perjury, abuse, stalking and alcoholism against Ms. Walsh.

[40] I do not agree.

[41] In his evidence and submissions on the summary judgment motion, Mr. Tober made various allegations of criminal and other improper or reprehensible behaviour by Ms. Walsh including providing false evidence, physical abuse, and alcoholism. While the motion judge did not address all these allegations in her decision, it is clear from her reasons that she was aware of Mr. Tober’s repeated allegations relating to her behaviour, including alleged violence against him on the day that she left the family home in November 2020: SJ reasons, at paras. 10-11. As the motion judge noted, at para. 10, those allegations were investigated by the police and FACS, without any resulting criminal charges or other action against Ms. Walsh. As indicated further below, the motion judge was also aware of Mr. Tober’s allegation that his lack of relationship with the child was the result of alienating behaviour by the Mr. Tober. The motion judge gave no credence to those allegations: SJ reasons, at para. 35.

[42] In these circumstances, I see nothing to indicate that the motion judge failed to consider Mr. Tober’s allegations relating to Ms. Walsh’s conduct or that she made any palpable and overriding errors in considering those allegations.

C. Parental alienation

[43] Mr. Tober submits that the motion judge erred in failing to give effect to his claims of parental alienation that he made against Ms. Walsh.

[44] At the summary judgment hearing, Mr. Tober alleged that under Ms. Walsh’s influence, the child had been alienated from Mr. Tober. On that basis, he requested that the court place less weight on the child’s wishes.

[45] Apart from Mr. Tober’s own assertion that Ms. Walsh was responsible for the child’s estrangement from Mr. Tober, there was no other evidence of alienating behaviour by Ms. Walsh. In the OCL interviews of the child, there was no indication that the child’s views and preferences had been influenced. The motion judge found that the child expressed strong and consistent views and remained firm in his wish not to have any contact with his father: SJ reasons, at para. 38. The motion judge also stated that despite Mr. Tober’s allegations of alienation by the mother, Mr. Tober’s many harassing messages “provide insight as to what has led [the child] to no longer have contact with his father”: SJ reasons, at para. 35.

[46] To the extent that the motion judge addressed Mr. Tober’s allegations against Ms. Walsh relating to parental alienation, the motion judge’s conclusions were findings of fact. Based on the evidence before her, I see no palpable and overriding error in the motion judge’s findings.

D. OCL’s performance of its duties

[47] Mr. Tober submits that the OCL failed to perform its duties and exhibited bias against him. He also argues that the motion judge should have required a further investigation by an expert.

[48] Mr. Tober alleges that OCL failed to properly perform its duties by conducting an insufficient investigation of the child’s views and preferences and exhibiting bias against Mr. Tober. Among other things, he argues that (i) the OCL’s investigation was based on Ms. Walsh’s demonstrably false allegations against him, and (ii) the investigation failed to address his allegations of parental alienation by Ms. Walsh. In the absence of a proper OCL investigation, Mr. Tober says that the motion judge should have required an investigation by an expert, especially in light of the parental alienation allegations.

[49] As the child’s counsel notes in her submissions, Mr. Tober’s submissions reflect in part a misunderstanding of the OCL’s role in these proceedings. As previously noted, the OCL became involved at the court’s request as set out in Gregson J.’s endorsement dated March 8, 2021. Once such a request is made, it is open to the OCL to determine whether or to what extent it becomes involved in the proceedings, in the allocation of its scarce resources to carry out its statutory obligations. It is open to the OCL to become involved as legal representative of a non-party child: CJA, s. 89(3.1). It is also open to the OCL under s. 112 of the CJA to cause an investigation to be made with respect to any matter concerning decision-making, parenting time or contact with the child and, if so, to provide a written report that would form part of the evidence before the court.

[50] As the child’s counsel notes in her submissions, the OCL became involved in this matter under s. 89(3.1) as legal representative of the child. In order to take a position on behalf of the child, the OCL lawyer together with the clinician met with the child and communicated his views and preferences to the parties and the court. However, as is its prerogative, the OCL did not cause an investigation to be made nor to provide a report under s. 112 of the CJA.

[51] On the record before the motion judge and this court, the OCL has diligently and properly carried out its role as the child’s legal representative in these proceedings. The OCL lawyer and clinician met with the child on several occasions and communicated the child’s views and preferences to the parties and the court. The motion judge considered those views and preferences in reaching her conclusions, as previously outlined. In these circumstances, I see no credible evidence that the OCL has failed to perform its duties or demonstrated bias against him, as Mr. Tober alleges. As well, there is nothing in the evidence to suggest that the motion judge required expert evidence relating to parental alienation in order to reach her decision.

E. Decision-making authority and parenting time

[52] Mr. Tober submits that the motion judge erred in granting Ms. Walsh sole decision-making authority and ordering the child’s parenting time with Mr. Tober to be at the child’s initiation and in accordance with his wishes.

[53] I disagree.

[54] In the SJ reasons, at paras. 17-18, 24-30, the motion judge considered the relevant facts and law when making her order with regards to decision-making power and parenting time. The motion judge reviewed s. 24 of the CLRA and noted case law that supports the paramountcy of the child’s best interests over the need or wants of a parent: see Gordon v Goetz, 1996 191 (SCC), [1996] 2 S.C.R. 27, at paras. 20, 24; Cox v. Stephen (2002), 2002 78080 (ON SC), 30 R.F.L (5th) 54 (Ont. S.C.), at para. 45. In applying the best interests test, the motion judge properly considered the child’s views and preferences as required by s. 24(3)(e) of the CLRA. By giving effect to the views of a child who was nearly 16 years old, the motion judge also recognized that the importance of the child’s input is commensurate with his age: A.C. v Manitoba (Director of Child and Family Services), 2009 SCC 30, [2009] 2 S.C.R. 181, at paras. 92-93.

[55] Other factors that are relevant in assessing the significance of the child’s views and wishes include (i) how clear and unambivalent the wishes are, (ii) how informed the expression is; (iii) the strength of the wish, (iv) the length of time the preference has been expressed for, (v) the overall context, and (vi) the circumstances of the preferences from the child’s point of view: Decaen v. Decaen, 2013 ONCA 218, 303 O.A.C. 261, at para. 42.

[56] In this case, the child has made clear his preference that he remain living with his mother, and that his parenting time with Mr. Tober be in accordance with the child’s wishes. He deserves to have his views respected by the court. I see no palpable and overriding error in the motion judge’s decision to give effect to the child’s wishes. The motion judge’s decision also provides stability by preserving the status quo, which is desirable in this case, given the child’s anxiety disorder.

F. Costs order

[57] Mr. Tober submits that the motion judge erred in awarding “full costs” to Ms. Walsh.

[58] In support of his submission, Mr. Tober concedes that he did not prevail on the issue of parenting time but agues that success was otherwise divided since all parties acknowledged that there was no genuine issue requiring a trial.

[59] I disagree. It is clear from the SJ reasons that Ms. Walsh was substantially successful in the result achieved on the summary judgment motions. The successful party has a reasonable expectation of being awarded costs in the absence of special circumstances: see Bell Canada v. Olympia & York Developments Ltd. (1994), 1994 239 (ON CA), 17 O.R. (3d) 135 (C.A.), at p. 142. I see no special circumstances that would warrant a different result in this case.

[60] An appellate court should set aside a costs award only if the court below made an error in principle or if the costs award is plainly wrong: Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, [2004] 1 S.C.R. 303, at para. 27. There was no error of principle in this case. The amount awarded (being 60 per cent of the amount requested) was not clearly wrong, but rather was reasonable in the circumstances. I see no basis for interfering with the costs award.

G. Other considerations

[61] There is one aspect of the motion judge’s summary judgment decision that should be addressed, even though Mr. Tober did not specifically raise it. As indicated below, I am referring to the motion judge’s references in her reasons to establishing a “prima facie case”.

[62] In the SJ reasons, at para. 22, the motion judge set out in full r. 16 of the FLR relating to summary judgment in family proceedings. As is the case with the corresponding rule that governs other civil proceedings (being r. 20 of the Rules of Civil Procedure), the motion judge is required to grant summary judgment if there is no genuine issue requiring a trial: FLR, r. 16(6); RCP, r. 20.04(2)(a). In both cases, the motion judge has enhanced fact-finding powers that entitle the judge to weigh the evidence, evaluate credibility of a deponent and draw any reasonable inference from the evidence, unless it is in the interest of justice for such powers to be exercised only at a trial: FLR, r. 16(6.1), RCP, r. 20.04(2.1). In the SJ reasons, at para. 23, the motion judge appropriately relied on Hryniak, at paras. 47, 49, 50, 53 and 67, in which the Supreme of Canada provided guidance as to how the relevant requirements in r. 20 of the RCP should be applied. The same considerations clearly apply in family proceedings under r. 16 of the FLR.

[63] As outlined previously, the motion judge then went on to consider the statutory provisions relating to the paramount question of the best interests of the child, including consideration of the issue of family violence: SJ reasons, at para. 24-30.

[64] Earlier in the SJ reasons, at para. 5, the motion judge outlined “issues to be determined” in her consideration of whether summary judgment should be granted to either Mr. Tober or Ms. Walsh. She then posed several questions for consideration, appropriately starting with the question of whether Mr. Tober or Ms. Walsh had produced “evidence that sets out specific facts showing that there is no genuine issue requiring a trial”, as required by r. 16(4) of the FLR. She then posed four additional questions relating to the matters about which the parties were requesting summary judgment, that is, decision-making responsibility, the child’s primary residence, parenting time and child support. In each case, the question she posed was whether Mr. Tober or Ms. Walsh had established a “prima facie case” that it would be in the child’s bests interests to grant the order requested by that party.

[65] In the circumstances of this case, the relevance of determining whether there is a “prima facie case” relating to the listed matters escapes me. When considered in isolation, posing the questions in those terms may give rise to concern about whether the motion judge understood the required legal test and properly applied the test to the evidence in this case.

[66] As explained below, after considering the SJ reasons as a whole, I have concluded that there is no reversible error arising from the motion judge’s references to establishing a “prima facie case”. As the motion judge correctly indicated elsewhere in the SJ reasons, the issue for determination is whether there is a genuine issue requiring a trial. The evidence before the motion judge overwhelming supports the conclusion that she did not err in making that determination in Ms. Walsh’s favour.

[67] As well, while not determinative, it is notable that it was Mr. Tober who brought the initial summary judgment motion, which was heard together with Ms. Walsh’s subsequent cross motion. Under r. 20 of the RCP, there is an alternative basis under which the motion judge is required to grant summary judgment, that is, if “the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment”: RCP, r. 20.04(2)(b). Although that language is not included in r. 16 of the FLR, the parties’ agreement that summary judgment was appropriate in this case militates against interfering with the motion judge’ decision.

VI. Disposition and costs

[68] Accordingly, I would dismiss the appeal.

[69] In their factums, Mr. Tober and Ms. Walsh each indicated that they were seeking costs of the appeal. However, neither of them provided a costs outline, which a party seeking costs is required to do prior to the hearing. The child’s lawyer took no position on costs of the appeal.

[70] As the successful party, Ms. Walsh should be entitled to her costs of the appeal from Mr. Tober, if demanded. If Ms. Walsh is seeking costs of the appeal (and the parties are unable to agree), Ms. Walsh’s counsel shall serve and file brief written costs submissions (not to exceed three pages) together with a costs outline within ten days. Mr. Tober may respond by brief written submissions (not to exceed three pages) within a further ten days. The submissions are to be provided by email to the Divisional Court office and uploaded to CaseLines. If no submissions are received within the specified timeframe, the parties will be deemed to have settled costs and no costs order will be made.

___________________________ Lococo J.

I agree: ___________________________ Emery J.

I agree: ___________________________ Schabas J.

Date: December 21, 2023

CITATION: Walsh v. Tober, 2023 ONSC 7111

DIVISIONAL COURT FILE NO.: DC-23-177

DATE: 20231221

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Lococo, Emery and Schabas JJ.

BETWEEN:

CHARLENE WALSH

Applicant (Respondent in appeal)

– and –

ANTHONY TOBER

Respondent (Appellant)

REASONS FOR JUDGMENT

R. A. LOCOCO J.

Date: December 21, 2023