Court File and Parties

Court of Appeal for Ontario Date: 20241009 Docket: COA-23-CV-1231

Miller, Harvison Young and Gomery JJ.A.

Between Thuy Bich (Michelle) Thi Le Applicant (Appellant)

and

Richard Norris Respondent (Respondent)

Counsel: Allan Rouben, for the appellant Richard Norris, acting in person

Heard: July 19, 2024

On appeal from the order of Justice Gisele M. Miller of the Superior Court of Justice, dated November 7, 2023, with reasons reported at 2023 ONSC 6303.

Harvison Young J.A.:

Overview

[1] The appellant, Michelle Le, appeals from an order allowing the respondent’s, Richard Norris, motion for summary judgment that dismissed her claim for spousal support. The same judgment also dismissed the respondent’s motion for summary judgment with respect to child support, ordering that the question of whether Mr. Norris stood in the place of a parent proceed to trial. The judgment additionally dismissed each party’s claims for damages related to the purchase of a property. Mr. Norris has not cross-appealed the order regarding child support.

[2] For the reasons that follow, I would allow the appeal in part and order that, in addition to the issues regarding child support, the parties’ claims for damages related to the purchase of the property should be considered at trial.

Factual Background

[3] The appellant and the respondent met in 2014. The pair engaged in a romantic relationship characterized as “on and off”. They broke up in January 2016, after which Ms. Le had an intimate relationship with another man. The parties then resumed their relationship in March 2016. In June 2016, Ms. Le became pregnant with a child, Abby, who was born in February 2017. [1]

[4] The parties’ relationship remained tumultuous but continued until late summer 2019. At that point, the parties had wished to purchase a house (“Inverhuron Trail”) but were unable to agree on how to take title. Mr. Norris wanted title to be taken in common reflecting their respective contributions, while Ms. Le wanted title to be taken as joint tenants. Their relationship broke down irretrievably. Mr. Norris ultimately proceeded with the purchase of the house on his own.

[5] Ms. Le commenced an application for spousal support and child support and parenting authority with respect to Abby. She also claimed recovery of costs related to the failed joint purchase of Inverhuron Trail.

[6] Mr. Norris initially paid child support for Abby after the parties ceased living together, and sought orders for parenting time and parenting authority. In the summer of 2021, however, a DNA test established that he is not Abby’s father. At that point, he broke off all contact with Abby and ceased paying support.

[7] Mr. Norris brought the summary judgment motion in which he sought the dismissal of Ms. Le’s claims for spousal support and child support on the basis that they did not disclose a genuine issue requiring a trial. He also sought an order for expenses incurred as a result of Ms. Le’s alleged breach of the Agreement for Purchase and Sale (“APS”). In his notice of motion, Mr. Norris did not seek summary judgment on his claim for emotional damages and the return of an engagement ring he had given to Ms. Le, although he seeks this relief in his response to her application.

Decision Below

(1) Spousal Support

[8] The motion judge allowed the respondent’s summary judgment motion on the spousal support issue. She found that the combined effect of ss. 29 and 30 of the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”), and s. 4 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”) is that the respondent did not qualify as a “spouse” within the meaning of the FLA and therefore cannot be liable for spousal support.

[9] Section 29 of the FLA defines “spouse” as follows:

“spouse” means a spouse as defined in subsection 1 (1) [married], and in addition includes either of two persons who are not married to each other and have cohabited,

(a) continuously for a period of not less than three years, or

(b) in a relationship of some permanence, if they are the parents of a child as set out in section 4 of the Children’s Law Reform Act.

[10] At para. 38, the motion judge stated:

Mr. Norris and Ms. Le never married. They did not, at any point, cohabit continuously for a period of three years. I find they did have a relationship of some permanence over the period from when they met in 2014 to their final separation in September 2019, even if it was “on and off’. However, for the reasons set out below, I find Mr. Norris is not the [sic] parent of the child as set out in section 4 of the Children’s Law Reform Act.

[11] However, as the motion judge noted, the definition of spouse for the purpose of spousal support also requires a consideration of s. 4 of the CLRA:

4 (1) A person is the child of his or her parents. (2) A parent of a child is, (a) a person who is a parent of the child under sections 6 to 13, except in the case of an adopted child…

[12] The motion judge maintained that ss. 6 to 13 were not applicable in this case because they address various ways in which a person may become a parent of a child, including assisted reproduction and surrogacy. She found that none of those provisions applied to these circumstances. Rather, the only section under which the respondent could be found to be the parent of the child is s. 7 of the CLRA:

7 (1) The person whose sperm resulted in the conception of a child conceived through sexual intercourse is, and shall be recognized in law to be, a parent of the child. (2) Unless the contrary is proven on a balance of probabilities, there is a presumption in respect of a child conceived through sexual intercourse that a person is, and shall be recognized in law to be, the parent referred to in subsection (1) if any of the following circumstances applies:

3. The person was living in a conjugal relationship with the child’s birth parent before the child’s birth and the child is born within 300 days after they cease to live in a conjugal relationship.

4. The person has certified the child’s birth, as a parent of the child, under the Vital Statistics Act or a similar Act in another jurisdiction in Canada. (3) If circumstances exist that give rise to a presumption by more than one person under subsection (2), no presumption shall be made under that subsection.

[13] The motion judge also found that none of the circumstances set out in s. 7 applies in the present case. Section 7(1) is inapplicable as the DNA tests establish that the respondent was not the contributor of the sperm that resulted in the child’s conception. While the presumptions set out in ss. 7(2)3 and 7(2)4 would apply, these are presumptions that the respondent was the contributor of the sperm resulting in the child’s birth. The uncontested DNA evidence proved otherwise.

[14] Accordingly, the motion judge concluded that the appellant was not a “spouse” as defined by the FLA and has no entitlement to spousal support. She granted the respondent’s motion for summary judgment in respect of spousal support and dismissed the appellant’s claim for spousal support and arrears.

(2) Child Support

[15] The motion judge, however, dismissed the respondent’s motion for summary judgment on the child support issue, finding that the application raises a genuine issue which requires a trial. She began by noting that it was common ground that the respondent was not the biological father of the child, and made an order to that effect. This is not under appeal.

[16] The motion judge next identified the central and determining issue as to whether the respondent “demonstrated a settled intention to treat the child as a child of his family” in accordance with s. 1 of the FLA, finding that this was “less clear”. She explained her reasons as follows:

[30] The evidence, sadly, is that Mr. Norris cut off all contact and support of the child once he learned through the DNA results that he was not the biological parent of the child. Mr. Norris submits that Ms. Le cannot prove that he parented the child while he knew he was not the father of the child. He relies on this, in conjunction with the decisions in Kristoff v. Kristoff, (1987) 59. O.R. (2d) 464, and K.L.B.V. v. J.M., 2005 ONCJ 68, 2005 OJ No. 998, to support his position there is no genuine issue for trial. Mr. Norris relies on his evidence that Ms. Le deceived him as to the child’s biological parentage.

[31] Ms. Le, in her evidence, denies that she deceived Mr. Norris as to the child’s biological parentage. Her evidence is that Mr. Norris knew from the time she first discovered she was pregnant with the child that there was uncertainty about the identity of the biological father but he decided, at the moment the child was born, to sign the Statement of Live Birth as the biological father of the child and committed to support her financially and to be a father in her life. If this is found to be true, the ratia in Kristoff and in K.L.B.V. v. J.M. would not apply.

[17] Further, the motion judge observed that the determination of whether a non-biological parent has shown a settled intention to treat the child as a member of their family is highly fact dependent, relying on Chartier v. Chartier, [1999] 1 S.C.R. 242, 1999 SCC 10, as well as subsequent cases: Ballmick v. Ballmick, 2005 ONCJ 101, 18 R.F.L. (6th) 10; Cornelio v. Cornelio (2008), 94 O.R. (3d) 213 (S.C.), 2008 ONSC 68884; and Boivin v. Smith, 2013 ONCJ 426. She noted that the case law repeatedly indicates that it is the relationship with the child that existed prior to the break-up of the family that is relevant to the analysis.

(3) Property Claims

[18] The motion judge dismissed both the appellant’s and respondent’s damages they each allegedly incurred as a result of the failed joint purchase of the Inverhuron Trail house, finding that the claims did not raise a genuine issue which requires a trial. She accepted that each party incurred additional costs when the parties failed to purchase the property together. She additionally accepted that this failure was because the parties could not agree on whether to take title as joint tenants or tenants in common.

[19] At para. 52, however, she held:

I find that the disagreement over how to take title, or some other disagreement, was entirely foreseeable given the history of the relationship between these parties. It is incomprehensible how either or both could reasonably have expected that the deal would close. I find therefore there is no basis for either party’s claim for damages, or costs or compensation from the other due to the breach of the APS for the property at 16 Inverhuron Trail.

Law and Analysis

[20] The issue under appeal is whether the motion judge erred in granting partial summary judgment dismissing the spousal support application and the property claims while ordering that the child support application proceed to trial.

[21] The appellant makes two related arguments. First, she argues that the trial judge failed to give effect to the general rule that cautions motion judges to avoid awarding partial summary judgment. Second, she argues that the finding that the appellant does not meet the statutory definition of “spouse” within the meaning of the FLA for the purpose of spousal support is inconsistent with the finding that the respondent could be a “parent” within the meaning of the CLRA for the purpose of child support. She submits that these conclusions are inconsistent and increase the risk of a conflicting result following a trial. She argues that the “circumstances that caused the motion judge to find that the respondent could be a parent for the purposes of child support, ought to have given rise to the appellant’s potential entitlement for spousal support.” I disagree.

(1) The award of partial summary judgment

[22] Partial summary judgment “should be granted only in the clearest of cases and only if doing so does not give rise to any of the associated risks of delay, expense, inefficiency, and inconsistent findings”: Truscott v. Co-Operators General Insurance Company, 2023 ONCA 267, 428 D.L.R. (4th) 113, at para. 54. Further, partial summary judgment should not be granted where there is a real risk of inconsistent or duplicative facts in the context of the litigation as a whole: Canadian Imperial Bank of Commerce v. Deloitte & Touche, 2016 ONCA 922, 133 O.R. (3d) 561, at para. 38.

[23] That does not mean, however, that partial summary judgment should never be granted. It is appropriate to grant partial summary judgment where three conditions are established:

(i) The determination of the case in several parts will prove cheaper for the parties; (ii) Partial summary judgment will get the parties’ case in and out of the court system more quickly; and (iii) Partial summary judgment will not result in inconsistent findings by the multiple judges who will touch the divided case.

(Malik v. Attia, 2020 ONCA 787, 29 R.P.R. (6th) 215, at para. 62)

[24] Appellate courts must be cautious in reviewing orders for partial summary judgment. In Malik, for example, it was likely that the claims involved in the partial summary judgment motion would not result in inconsistent findings, but the motion would increase both costs and delay. However, at para. 67, the court noted that setting aside partial summary judgment for adding cost and delay would only add further cost and delay, and dismissed the appeal. Additionally, in VP Auto Sales & Service Ltd. v. Ahmed Inc., 2024 ONCA 507, at para. 26, this court has previously found no error in granting partial summary judgment where the adjudicator instructed himself properly on the principles of trial efficiency and proportionality.

[25] Motion judges in family law matters must consider the factors that weigh for and against granting partial summary judgment. As a matter of best practices, they should explain why they find it appropriate.

[26] I would also note that when unrepresented parties are involved, as in this case, concerns about the efficiency of the process may take on particular importance. In such matters, however, it may be particularly important to narrow the issues for trial, particularly where one or more parties are self-represented.

[27] I am satisfied that an order of partial summary judgment was appropriate in this case for two principal reasons. First, the costs of litigating this matter have been high and disproportionate. For example, Ms. Le filed 882 pages of exhibits to her affidavit. As the motion judge noted, “[c]ourts do not have the resources to weed through such excessive material in order to glean what is and what is not necessary and relevant.” Second, the issue of spousal support involves the application of statutory language to uncontested facts. There is no risk of inconsistent findings or outcomes because, as I will explain, the legal definitions of spouse and parent are distinct and serve different purposes. The resolution of the damage claims arising from the property dispute on summary judgment is problematic for other reasons. They are also, however, independent of the child and spousal support issues.

(2) The definitions of “spouse” and “parent” are distinct

[28] As the terms themselves indicate, the legal definition of a spouse is quite distinct from that of a parent. A parent may or may not be a spouse and a spouse may or may not be a parent. The status may, and frequently does, overlap as the traditional nuclear family model illustrates. But the rationale for the legal status as well as the rights, interests, and obligations that flow from each are distinct.

[29] In her consideration of the statutory framework, the motion judge set out the distinct nature of the legal frameworks underlying the obligations for spousal support and child support, finding that the definition of spouse as set out in the FLA (including the limited extent to which it refers to the CLRA) is exhaustively defined by the statute, and the appellant had not referred the court to any authority to the contrary. In fact, there appears to be no caselaw in which the FLA definition of spouse has been interpreted to include someone who simply does not meet the statutory criteria.

[30] In addition, the appellant’s submissions do not reflect the differing rationale between spousal support and child support. The definition of parent for the latter purpose is child centred; the fundamental concern of the law relating to children is the best interests of the child.

[31] Accordingly, the notion of parent has been expanded both in the case law and most recently in statutory reforms which have recognized the changing nature of both the way in which families are created and those who are recognized as parents: A.A. v. B.B., 2007 ONCA 2, 83 O.R. (3d) 56, at para. 38; All Families Are Equal Act (Parentage and Related Registrations Statute Law Amendment), 2016, S.O. 2016, c. 23; Julien D. Payne and Marilyn A. Payne, Canadian Family Law, 9th ed. (Toronto: Irwin Law, 2022), at p. 2. When introducing the All Families Are Equal Act in Ontario’s Legislative Assembly, the Honourable Yasir Naqvi stated that “[i]mportantly … this bill recognizes that in the year 2016, family structures are diverse and that there is no one way to start a family”: Legislative Assembly of Ontario, Official Report of Debates (Hansard), No. 10, 2nd Sess., 41st Parl., September 29, 2016, at p. 468 (Hon. Yasir Naqvi).

[32] These changes reflect the significant evolution in the nature of family over the last few decades. They recognize that there may be one or more parents of a child, that there are various forms of assisted reproduction, and that a gamete donor may or may not be legally defined as a “parent” of a child. A child may have one or more than two parents, and whether or not those people have or had relationships with one another has become an increasingly separate consideration from whether those persons are parents for the purpose of child support. As L’Heureux-Dubé J.A. (dissenting) recognized in February 1993 in Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554, 1993 SCC 16, at p. 634, “[t]he traditional family is not the only family form, and non-traditional family forms may equally advance true family values.”

[33] The appellant’s submission implies that any time there is a potential claim for child support such that there is a genuine issue for trial, there must also be a genuine issue for trial with respect to spousal support. The appellant cites no authority in support of that proposition, and it is not consistent with the different (though frequently overlapping) foci of the respective legislative frameworks.

[34] The foundational principle of child support is that it is the right of the child, and the obligation is owed to the child, not to the parents: Richardson v. Richardson, [1987] 1 S.C.R. 857, 1987 SCC 58, at p. 869; D.B.S. v. S.R.G., [2006] 2 S.C.R. 231, 2006 SCC 37, at para. 28. As Bastarache J. found at para. 38 in D.B.S.:

[T]he right to support survives the breakdown of a child’s parents’ marriage; child support should, as much as possible, provide children with the same standard of living they enjoyed when their parents were together…

The starting point is the child, not the relationship between the parents and whether or not they are spouses. As Wilson J. explained in Richardson, at p. 870, “the fact that child support will indirectly benefit the spouse cannot decrease the quantum awarded to the child.”

[35] Given the broad policy considerations placed on children’s right to support, it should not be surprising that the definition of child and parent has been interpreted expansively or inclusively over time to give effect to the child’s right to be supported by their parent or parents, and of course to recognize these relationships for purposes of inheritance, insurance, etc.: A.W.M. v. T.N.S., 2014 ONSC 5420, 54 R.F.L. (7th) 155. As Julien D. Payne and Marilyn A. Payne, the authors of Canadian Family Law, note at p. 2, “[t]raditional notions of the family must clearly be re-examined in the search for rational and equitable social and legal policies. In the final analysis, it may be impractical for the law to endorse a monolithic definition of “family” that applies for all legal purposes.” For example, in 2020, Canada amended the definition of parent in the Citizenship Act, R.S.C. 1985, c. C-29, to include legal parent-child relationships without a biological link for the purpose of citizenship.

[36] The same social (and technological) developments that have led to the increasingly inclusive or expansive definition of parent have had a different effect with respect to the notion of “spouse”. Formal marriage is no longer necessary. Over time, the notion of dependency has increased in significance while marriage as a triggering factor has become less important. Thus, the motion judge held that the only way that the respondent may be a parent does not arise from the statutory framework but from the case law developed by Chartier and the cases which followed it. These cases do not expand the definition of “spouse” as set out in the FLA.

[37] I do not see where the risk of inconsistency in the final analysis lies. If the child support claim is dismissed at trial, there could be no inconsistency. If it is upheld, there is similarly no inconsistency because the notion of settled intention does not depend on the status of another parent as a spouse. The facts that are in dispute in this case relate to the appellant’s underlying claim that the respondent showed a settled intention, despite his claims that he did not show such an intention, that he did not want to be a parent to begin with, and that any such settled intention after the birth of the child was vitiated by the allegedly deceptive conduct of the appellant in leading him to believe that he was the biological father. As the motion judge correctly observed, the question of whether the respondent demonstrated a settled intention is highly fact specific. For example, a trial judge will consider all the evidence that may go to settled intention, including the respondent’s application for parenting time with the child after the parties’ separation, and potentially including the fact that he signed the certificate of live birth.

[38] In short, the appellant has not shown any error on the part of the motion judge’s finding that she was not a spouse within the meaning of the FLA in the circumstances of this case. This conclusion is drawn from undisputed facts. The parties’ relationship, though it was a relationship of some permanence, was tumultuous and they only lived together for six months, a finding of fact that is not challenged on appeal. Moreover, while a child was born, she was not born or conceived during that period of cohabitation. The appellant does not fall under the definition of spouse for the purpose of spousal support.

(3) Inverhuron Trail property

[39] There is no genuine issue requiring a trial when the judge can make the necessary findings of fact, the judge can apply the law to the facts, and the process is a proportionate, more expeditious, and less expensive means to achieve a just result: Hyrniak v. Mauldin, [2014] 1 S.C.R. 87, 2014 SCC 7, at para. 49. While the motion judge identified the correct test, I find that the assessment of whether damages related to the purchase of Inverhuron Trail were owed did not make the necessary findings of fact nor was any law applied to these facts.

[40] The appellant claims she is owed damages in the amount of $150,570.49 flowing from the failed joint purchase of Inverhuron Trail. Additionally, she claims damages and costs for legal fees, moving fees, lender fees, babysitting costs, travel costs, home rental costs, storage rental fees, lost/sold furniture, and payment for mental distress and pain and suffering.

[41] The respondent, in turn, claims costs for the additional expenses incurred as a result of the appellant’s breach of the APS resulting in the respondent being the sole purchaser to avoid legal action by the vendor. In doing so, he claims he was required to obtain a mortgage that was $150,000 higher and 10 years longer than anticipated. He also claims damages and costs for legal fees, moving fees, and storage fees.

[42] The record indicates factual disagreement that was not appropriately addressed in the motion judge’s decision. The motion judge acknowledged that disagreement on the property issue was likely. However, this is not an assessment of whether damages are owed on the evidence. Accordingly, I find the motion judge erred in dismissing both parties’ claims related to Inverhuron Trail and find there is a genuine issue which requires a trial.

Conclusion and Costs

[43] In conclusion, I would find that the issues of child support and damages in relation to the Inverhuron Trail property are genuine issues requiring a trial. Accordingly, the appeal is allowed in part and the issue of damages shall be determined along with the claim for child support. The appeal with respect to the spousal support claim is dismissed.

[44] Given the divided success of the appeal, there will be no order for costs.

Released: October 9, 2024 “B.W.M.” “A. Harvison Young J.A.” “I agree. B.W. Miller J.A.” “I agree. S. Gomery J.A.”

[1] Abby is a pseudonym.