Court File and Parties

Guelph Registry No: D-11-12 Date: 2015-06-25 Ontario Court of Justice

Between: Kari Ann Nichols Applicant

— And —

Craig Anthony Nichols Respondent

Counsel: Brian McCann, counsel for the applicant mother, Kari Ann Nichols Respondent father, Craig Anthony Nichols, on his own behalf

Justice: Jane E. Caspers (Endorsement)

1: Introduction

[1] This matter was referred to me following receipt of a written request from the applicant, Kari Ann Nichols, dated 18 June 2015, that the motion to change brought by the respondent, Craig Anthony Nichols, issued on 2 June 2015, be dismissed as it does not meet the threshold test of a material change in circumstances. Appropriately a copy of that correspondence was delivered to Mr. Nichols.

1.1: The Order of 10 September 2013

[2] The order that Mr. Nichols seeks to vary is dated 10 September 2013. It is a very detailed and comprehensive order made pursuant to executed minutes of settlement. At the time of the consent order, both parties were represented by counsel.

[3] While the order was comprehensive amounting to some 38 paragraphs, the relevant terms of the negotiated resolution provide that Ms. Nichols has sole custody of the couple's three children, namely Griffin Anthony James Nichols, born on 10 June 2008 ("Griffin"), Halle Sarah Ann Nichols, born on 16 May 2003 ("Halle") and Zane Earl Griffith Trow, born on 12 May 1996 ("Zane"); that access by Mr. Nichols to Griffin and Halle was to be on an alternate week about basis; and that Zane was to determine his own residential arrangements although it was understood that he would continue to reside with Ms. Nichols "pending further notice". Extended/holiday access between the parties was clearly defined. Terms incidental to custody and access were also comprehensively addressed.

[4] With respect to the issue of support, Mr. Nichols was to pay $300.00 per month commencing on 1 September 2013 for the support of the three children. The amount represented an offset of the table child support pursuant to the Child Support Guidelines, O. Reg. 391/97, as amended, with Ms. Nichols paying child support to Mr. Nichols for the two children, Griffin and Halle based on an income of $51,700.00, and Mr. Nichols paying child support to Ms. Nicholls for three children based on an income of $55,000.00. The obligation of both parents with respect to section 7 expenses was also addressed in an all-inclusive manner.

2: Motion to Change

2.1: Position of Mr. Nichols

2.1(a): Custody and Access

[5] In his motion to change dated 2 June 2015, Mr. Nichols seeks to vary the custodial order to one of joint custody with respect to Griffin and Halle and seeks primary residence of the children with him. According to his pleadings the material change in circumstances is based primarily on a potential move by Ms. Nichols, with the children, to Cambridge, Ontario which, he argues, will be destabilizing for the children and will interfere with his generous access.

[6] In addition, he appears to seek some minor amendments to the prevailing order with respect to health benefits, the children's extracurricular activities, an accounting with respect to section 7 expenses and arrangements with respect to travel with the children. In his motion to change, Mr. Nichols states that he:

". . . is the children's father and has the children 50% of the time . . . [and] deserves parental rights over his children."

2.1(b): Support

[7] Mr. Nichols also seeks to terminate his child support obligations for Zane.

2.2: Position of Ms. Nichols

2.2(a): Relocation to Cambridge

[8] According to the correspondence received from Mr. McCann, counsel for Ms. Nichols, his client does not intend to relocate to Cambridge and has, with her share of the property settlement, purchased a residence at 308 Watson Parkway North, Unit 101, Guelph, which is apparently within close proximity to the residence of Mr. Nichols at 114 Law Drive, Guelph.

2.2(b): Support for Zane

[9] With respect to the issue of a variation of child support for Zane, Ms. Nichols is in agreement and consents to the relief sought.

3: The Law

[10] In addressing this issue of the most expeditious way to resolve legal issues without protracted litigation, rule 2 and subrule 1(8.2) of the Family Law Rules, O. Reg. 114/99, as amended (the "rules") are worthy of consideration.

[11] Rule 2 of the Family Law Rules outlines the primary objective of the Rules and how the primary objective is to be achieved:

(2) Primary objective. — The primary objective of these rules is to enable the court to deal with cases justly. O. Reg. 114/99, r. 2(2).

(3) Dealing with cases justly. — Dealing with a case justly includes,

(a) ensuring that the procedure is fair to all parties;

(b) saving expense and time;

(c) dealing with the case in ways that are appropriate to its importance and complexity; and

(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases. O. Reg. 114/99, r. 2(3).

(4) Duty to promote primary objective. — The court is required to apply these rules to promote the primary objective, and parties and their lawyers are required to help the court to promote the primary objective. O. Reg. 114/99, r. 2(4).

(5) Duty to manage cases. — The court shall promote the primary objective by active management of cases, which includes,

(a) at an early stage, identifying the issues, and separating and disposing of those that do not need full investigation and trial;

(b) encouraging and facilitating use of alternatives to the court process;

(c) helping the parties to settle all or part of the case;

(d) setting timetables or otherwise controlling the progress of the case;

(e) considering whether the likely benefits of taking a step justify the cost;

(f) dealing with as many aspects of the case as possible on the same occasion; and

(g) if appropriate, dealing with the case without parties and their lawyers needing to come to court, on the basis of written documents or by holding a telephone or video conference. O. Reg. 114/99, r. 2(5).

[12] Subrule 1(8.2) of the rules requires the court to consider whether there is a proportionate, expeditious and less expensive means to achieve an end result in any litigation:

(8.2) Document that may delay or is inflammatory, etc. — The court may strike out all or part of any document that may delay or make it difficult to have a fair trial or that is inflammatory, a waste of time, a nuisance or an abuse of the court process. O. Reg. 322/13, s. 1.

[13] In my view, these provisions of rule 2 and subrule 1(8.2) are analogous to the amended rule 2.1 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as amended, which contemplates a summary dismissal process for claims without merit as long as the process for doing so is fair.

[14] The principle was recently articulated in the summary preamble to Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, a decision of the Supreme Court of Canada:

Our civil justice system is premised upon the value that the process of adjudication must be fair and just. This cannot be compromised. However, undue process and protracted trials, with unnecessary expense and delay, can prevent the fair and just resolution of disputes. If the process is disproportionate to the nature of the dispute and the interests involved, then it will not achieve a fair and just result.

[15] This notion of summary judgment as noted at paragraph [34] of Hryniak v. Mauldin is an important tool for enhancing access to justice because it can provide a "cheaper, faster alternative to a full trial."

[16] However, subrule 16(1) of the rules dealing specifically with motions for summary judgment contemplates the filing of an answer [emphasis mine] before a party can make a motion for summary judgment without a trial on the basis of affidavit evidence filed:

16. When available. — (1) 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 a trial on all or part of any claim made or any defence presented in the case.

(4) Evidence required. — The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial.

(4.1) Evidence of responding party. — In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial.

(5) Evidence not from personal knowledge. — If a party's evidence is not from a person who has personal knowledge of the facts in dispute, the court may draw conclusions unfavourable to the party.

(6) No issue for trial. — If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.

(6.1) Powers. — In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence. O. Reg. 69/15, s. 5(1).

[17] This entails a lengthy process of inquiry which requires the court to assess pleadings.

4: Issue

[18] At paragraph [66] of Hryniak v. Mauldin, as a preliminary matter, it is suggested that:

[66] ". . . the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact finding powers [under the amended rule 20.04 of the Rules of Civil Procedure]."

[19] How does the court determine whether there is a genuine issue requiring a trial based on the evidence, in a manner that is fair and proportionate, at the early stages of a proceeding without resort to lengthy and protracted litigation? Or, as Justice Frederick L. Myers queried in Gao v. Ontario (Workplace Safety and Insurance Board), 2014 ONSC 6497, at paragraph [6], how does the court "bring fair and just resolutions to a particular category of disputes in a proportionate, timely and affordable way?"

5: Decision

[20] Upon reviewing the order, I note that for the most part, the issues raised by Mr. Nicholls are comprehensively dealt with in the order of 10 September 2013.

[21] The order of 10 September 2013 provides for active participation by Mr. Nichols in the lives of the children. He has:

• clearly defined, generous access with the children, which he does not dispute (paragraphs 7-17);
• access to the children's health cards (paragraph 18);
• the right to obtain medical and educational information about the children as well as information about their extra-curricular activities (paragraph 19);
• 60 days written notice by Ms. Nichols of any intention to relocate to a residence in Guelph or 20 kilometres from the City of Guelph municipal boundaries (paragraph 5);
• one month's notice of out-of-country travel (paragraph 20); and
• participation in the arranging of counselling for the children "to assist them in dealing with their issues of grief as well as helping them to deal with changes in their family" (paragraph 21).

[22] Mr. Nichols has raised a concern about Ms. Nichols' relocation. She is not relocating and in fact currently resides, with the children, very close to his residence.

[23] I cannot conclude that Mr. Nichols has, in any way, been excluded from the lives of his children. What I do see is an effort to re-litigate issues that have already been resolved. The court cannot be expected to adjudicate every issue upon which parents cannot agree in their day-to-day lives.

[24] With respect to the issues of terminating support for Zane, Ms. Nichols is in agreement.

[25] In this emerging area, the court is assisted greatly by the decision of Justice Myers in Raji and Leandre v. Borden Ladner and Gervais LLP, 2015 ONSC 801. At paragraph [8], Justice Myers noted as follows:

[8] . . . Imposing a quick and limited written process that provides one opportunity to the plaintiff to show why the claim should not be dismissed is an important advance toward meeting the goals of efficiency, affordability, and proportionality in the civil justice system as discussed by the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7.

[26] I propose to adopt this practice in this proceeding before the court.

[27] Therefore, as the court is considering making an order dismissing the motion to change brought by Mr. Nichols and in keeping with the articulated principles of fairness to both parties, there shall be an order as follows:

6: Order

1. Craig Anthony Nichols shall, within 7 business days, serve and file with the court a written response to the correspondence of Kari Ann Nichols, dated June 18th, 2015 addressing specifically why his motion to change ought not to be dismissed. The response shall be no more than two pages in length, double spaced and shall address solely the threshold issue of material change in circumstances as raised in his motion to change.

2. Upon receipt of the written response to the correspondence of Mr. Nicholls, the court will render a decision whether this matter is to proceed based on the documentary evidence filed by the parties.

3. Should the court decide to proceed on the merits, Kari Ann Nichols, shall be permitted to file responding materials.

Signed: Justice Jane E. Caspers

Released: 25 June 2015