Bruxer v. Bruxer, 2013 ONSC 5656

Court File No.: 121-2011 Date: 2013-09-11 Ontario Superior Court of Justice

Between: Christine Clara Bruxer (Applicant) – and – Kenneth Francis Bruxer (Respondent)

Counsel: Monique Rae Bennett, for the Applicant Elli M. Cohen, for the Respondent

Heard: September 5, 2013

Endorsement

LEACH J.:

[1] Formally, there are two motions now before me in this matrimonial litigation. In particular:

i. The Applicant brought a motion, (initially returnable on July 25, 2012, and the notice of motion for which is located at Tab 3 of the Continuing Record), for a final order pursuant to the ostensible settlement agreement of the parties dated May 4, 2012.

ii. Prior to hearing and disposition of the Applicant’s motion, the Respondent in turn brought a motion, (initially returnable on October 31, 2012, and the notice of motion for which is located at Tab 8 of the Continuing Record), for relief including an order that the aforesaid agreement be “set aside and found unenforceable”, together with other relief permitting the Respondent, in various ways, to continue with his formal defence of the litigation commenced by the Applicant.

[2] In essence, the Applicant moves for summary judgment pursuant to Rule 16 of the Family Law Rules, and Rule 16(6) in particular, arguing that there is “no genuine issue requiring a trial of a claim or defence” because the parties, each represented by independent counsel, negotiated and signed a binding and final settlement agreement formally witnessed by their respective lawyers. She relies on the manner in which the agreement was negotiated and documented, her own perceptions of that process, and various answers given by the Respondent during an extended cross-examination on his affidavit material. She says the Respondent fully understood what he was doing at the time of the agreement, (despite his acknowledged medical problems), and now simply wants to prolong the litigation because he has changed his mind.

[3] Relying on sworn evidence from himself, his new partner and his family physician, along with considerable documentation relating to his medical issues and treatment, and what he contends are self-evidently unconscionable terms of the agreement having regard to the underlying facts, the Respondent ultimately seeks to have the parties’ ostensible agreement set aside pursuant to s.56(4)(b) and/or s.56(4)(c) of the Family Law Act, R.S.O. 1990, c.F.3; in other words, on the basis he did not understand its nature or consequences, and/or otherwise in accordance with the law of contract. (For example, there are suggestions that the ostensible agreement was vitiated because the Respondent experienced duress and incapacity brought about by his physical ailments and medication.) For present purposes, the Respondent contends that there is indeed a “genuine issue requiring a trial”, insofar as the validity and enforceability of the agreement is concerned, and that it would be inappropriate and unfair to summarily decide the matter in the Applicant’s favour.

Background

[4] The parties have filed a good deal of affidavit evidence and exhibits, supplemented by an extended transcript of the Respondent’s cross-examination by the Applicant’s counsel.

[5] I have reviewed and have regard to that evidence in its entirety, despite the particular facts and considerations highlighted herein.

[6] By way of a general background and overview:

• The parties were married in 1979, remained together for at least 25 years, and had five children. At least two and perhaps three of the children were independent by the time of the parties’ separation; only one remains dependent at the present time.

• There is a dispute as to when the parties separated or, at least, as to the date of separation that should be used for determination of the parties’ respective rights. The Respondent says the parties actually separated in May of 2004. The Applicant says that, because the parties continued to co-mingle finances until August of 2006, they always have agreed to regard that as the date of separation.

• Following separation, the matrimonial home was sold, with the proceeds being divided and/or used to address debts. The Respondent continued to make monthly payments to the Applicant.

• Matters continued without formal litigation until July of 2011, when the Applicant brought her underlying application herein, seeking relief that included retroactive and current spousal and child support, as well as formal determination and equalization of the parties’ net family property.

• The formal litigation seems to have been prompted by the Respondent’s unilateral reduction of payments to the Applicant; reductions which he says were necessitated by various developments, including increasing health difficulties.

• The Respondent has a complex and troubling medical history, which I will not attempt to describe or chronicle in exhaustive detail here. For present purposes, suffice it to say that, since 1983, he has been living with a diagnosis of a long-term autoimmune disorder, (Systemic Lupus Erythematosus), and resulting complications. The most serious of these have included end-stage renal failure in 1996, a kidney transplant in 1999, and acute cellular rejection of the transplanted kidney that seems to have commenced in 2010, resulting in a progressive deterioration of the Respondent’s overall health, which in turn is complicated by additional considerations such as hypertension and sleep apnea. From October of 2010 to present, the Respondent has had weekly and monthly appointments with his family physician and/or other medical specialists in London. On many occasions throughout 2011 and 2012, he repeatedly was hospitalized, often as the result of an Emergency admission, owing to a succession of concerns. These included hypertension, rapid heart rate, fever, acute diverticulitis, (a digestive disease affecting his colon), sharp abdominal pains, high white cell counts, pronounced malaise and fatigue, and an intra-abdominal abscess secondary to the diverticulitis, (requiring draining by ongoing catheterization into a “drain bag”, strapped to the Respondent’s leg, between February and June of 2012). He continues to suffer from chronic kidney disease and a failing transplant, which are being managed with a host of medications. (In that regard, his family physician emphasizes that, on April 18, 2012, approximately two weeks before the meeting leading to the parties’ ostensible agreement of 2012, the Respondent was discharged from his latest stay in hospital on at least 12 medications, including Predniszone. He remained on those medications at the time of the meeting on May 4, 2012, described below.) At the time of the relevant meeting, he had been unable to work for some time, was collecting greatly reduced income via disability benefits, and it was unknown whether he would ever be able to return to work. After the meeting, he continued to experience health problems, leading to a further kidney transplant in August of 2013.

• Following commencement of the formal litigation in July of 2011, and both parties’ retention of counsel, successive attempts were made to address and resolve the matter through negotiation. However, it seems that a meeting between the parties and their counsel successively was postponed a number of times, owing to various reasons that included the Respondent’s ongoing health issues and repeated hospitalization.

• A “four way” meeting, (involving the parties and their respective counsel), eventually took place on the morning of May 4, 2012, at the office of the Respondent’s lawyer, in Clinton; a day when the Respondent also had a scheduled health appointment at the radiology department of the London Health Science Centre, to check on the status of his abscess and his catheter drain. The meeting in Clinton lasted several hours, and went into the afternoon. Apart from an initial greeting in the law office waiting room, the parties apparently remained in separate rooms the entire time, as the lawyers met elsewhere and then periodically with their respective clients.

• The “four way” meeting on May 4, 2012, concluded with a four page handwritten document being signed by the parties and witnessed by their respective lawyers. It begins with the words “Agreement dated May 4, 2012”, an identification of the parties, and the phrase “the Parties agree as follows”. There are then detailed provisions, the broad thrust of which is that the Respondent assumed various obligations including an equalization payment of $54,000 and a $35,000 payment representing arrears of spousal and child support, (both of which were to be paid within 60 days), together with a commitment to pay the Applicant ongoing monthly spousal support at the rate of $1,515 per month. The Respondent also undertook to designate the Applicant as the beneficiary of various insurance policies.

• It is acknowledged that the Respondent has not made the payments contemplated by the ostensible agreement. After some deviations, (including apparent failure at one point to comply with an interim order made by Justice Gorman), the Respondent apparently has made the contemplated beneficiary designations.

Party positions and evidence regarding agreement validity

[7] Both parties acknowledge that, on its face, the agreement is a “domestic contract” within the meaning of the Family Law Act, supra. However, they disagree fundamentally on whether the circumstances give rise to any concerns that might warranting setting aside the agreement, in whole or in part, pursuant to s.56(4) of the legislation.

[8] Again, the competing evidence filed before me is not insubstantial, and what follows is an overview rather than a detailed summary.

[9] The Respondent relied on affidavit and exhibit evidence that included the following:

i. His own primary affidavit and his affidavit filed in reply. They provide an extended review of the Respondent’s medical history and complications, and assert, in various direct and indirect ways, that due to the effects of the Respondent’s poor health, including severe and constant pain, inability to concentrate, increasing problems with memory, depression, stress, and a general state of mental, physical and emotional fatigue if not exhaustion, he was unable to appreciate the nature of the document he signed on May 4, 2012, such that there was no true “meeting of the minds” that day. The Respondent says his difficulties became more pronounced as the settlement meeting wore on, as he was feeling a “lot of pain”, “very unwell and ill”, “very tired”, and increasingly anxious about getting to his scheduled medical appointment in London, for which he would already be late. (The Respondent says he indicated these concerns to his counsel, and medical documentation relating to his treatment later that day indicates that his abscess drain tube had in fact become “blocked” or “plugged” such that his abscess was not draining properly, if at all.) Generally, the Respondent says that he greatly underestimated his ability to “push through” the meeting, and the reality was that he was “in no way able to mentally comprehend or physically withstand” the demands it was making on him. In particular, while the Respondent knew the handwritten document being presented to him periodically by his lawyer reflected settlement discussions, the Respondent says he did not realize the intention was to reach a final settlement agreement that day, and that the document was not presented to him as a final agreement, representing an end to further negotiations. The Respondent believed it was merely an acknowledgement of the Applicant’s position, preliminary to further review, consideration and counsel drafting before reaching and signing a final agreement. He knew the issues being discussed were important, and desired resolution, but did not think the meeting was to be a “rush to settlement”. The Respondent also points to aspects of the supposed agreement which he says are obviously inappropriate and therefore unconscionable, having regard to the underlying facts, which in turn are said to provide indirect support for his alleged understanding at the time; i.e., that the document simply reflected the Applicant’s desires rather than any final agreement to which a party in his circumstances reasonably would give any informed and proper consent. For example, he notes the document suggests that his ongoing monthly support obligation would be $1,515.00, (even after payment of alleged arrears), whereas the parties’ respective incomes and the Spousal Support Advisory Guidelines suggest a range of $211 to $260 per month in the circumstances. He also questions whehther all calculations should have used a separation date in 2006, when the parties actually separated in 2004 despite ongoing mingling of finances.

ii. An affidavit from Bonnie Groot, who has been the Respondent’s current partner for approximately five years. Her evidence confirms and provides further details about the Respondent’s health problems and associated complications, including ongoing challenges caused by severe pain, nausea, chills, shakes, and inability to sleep. She also emphasizes the Respondent’s increasing problems with confusion, inability to focus and general memory loss in the past few years, providing numerous examples of the Respondent often being “in a daze”, and falling prey to various door-to-door sales people who were able to have the Respondent sign onerous and unwanted agreements.

iii. An affidavit from the Respondent’s family physician, Dr Maureen Farrell. She confirms and provides further details of the Respondent’s problems with kidney disease and failure caused by Systemic Lupus Erythematosus, (“SLE”), hypertension and sleep apnea, and also provides details about the extensive medications being taken by the Respondent when he was discharged from hospital on April 18, 2012, (approximately two weeks before the settlement meeting). In addition to this factual evidence, Dr Farrell’s affidavit evidence effectively provides expert opinion evidence, indicating that SLE can include a negative effect on a person’s mind and memory, that the Respondent had been subjected to “an extreme amount of stress” that may negatively have impacted his “ability to discern information and make decisions”, and that the numerous medications the Respondent was on at the time, (and the predniszone in particular), “could have interfered with his ability to think clearly and make decisions”.

iv. An affidavit from a law clerk tendering, as exhibits, the substantial medical documentation that the Respondent’s counsel was able to obtain from the South Huron Hospital Association. (To date, apart from documentation relating to his treatment in London on the day of the settlement meeting, the Respondent has not yet filed further medical documentation generated by the other attending physicians and specialists outlined in his affidavit material.)

[10] The Applicant relied on affidavit and exhibit evidence that included the following:

i. Her initial affidavit, (filed in support of her motion for a final order in accordance with the settlement agreement), and a further extended affidavit addressing many of the matters raised in the evidence filed by the Respondent. In that regard:

a) She points to various developments and alleged statements and failings of the Respondent during the course of the parties’ separation and the litigation, (e.g., in relation to the provision of complete and accurate information and timely support payments), which in her view are indicative of a general reluctance of the Respondent to address his obligations and resolve the dispute in a timely way. She says this latest motion challenging the validity of the settlement agreement is consistent with the Respondent “dragging his feet” as he allegedly has done in the past. She does “not believe for one second that he did not know this was a final agreement or what he was agreeing to”.

b) She relies on the express terms of the agreement, (making clear its final and binding nature), as well as various aspects of the process leading to its being executed by the parties and witnessed by their respective counsel. She points, for example, to communications before the meeting indicating and confirming its intended purpose, the presence and participation of experienced counsel who had been involved in the matter for a number of years and provided independent legal advice, the “issue by issue” manner in which the four-way meeting proceeded, and handwriting on the agreement, (as well as her own evidence), suggesting or indicating that certain provisions were being proposed and/or confirmed by the Respondent’s lawyer.

c) She relies on her brief personal observations of the Respondent, (admittedly brief), at the outset of the settlement meeting, and the fact that neither she nor her lawyer were given any indication before or during the meeting of the Respondent experiencing any difficulties or distress; e.g., about his health, his medical appointment, stress, depression, lack of ability to concentrate, or any confusion as to why the parties were there.

d) She relies on prior documentation prepared and exchanged in the litigation, (including documents prepared and delivered by the Respondent), employing a separation date of August 2006 for the purpose of calculations. She says this not only contradicts the Respondent’s current suggestion that use of that date in the settlement agreement reflects some kind of obviously unconscionable result and corresponding lack of understanding by the Respondent, but reflects a broader lack of candour on the part of the Respondent, as far as this dispute is concerned.

e) She acknowledges that the Respondent began to experience more health issues after 2011, but also says there clearly were periods where he was feeling well, as he continued to be involved in various ways with the local fire department, (e.g., retaining the title of Acting Chief, and attending training and meetings), despite his illnesses, extended absence from work for his principal employer Sifto, and receipt of disability payments.

f) She points to certain aspects of the Respondent’s medical documentation which in her view undermine his suggestion of certain difficulties at the time of the settlement meeting; e.g., cognitive testing in January of 2012 suggesting that the Respondent had excellent memory and concentration at that time, (although the Respondent contends that his condition subsequently deteriorated), and that any issues in that regard were likely due to stress. She also says that Dr Farrell’s evidence should be given little weight, as the Respondent apparently had not seen his family physician for some time, (perhaps as long ago as July of 2011), and the Respondent had taken predniszone in the past while continuing to work at Sifto and the fire department, without experiencing the sort of detrimental memory and concentration effects now being alleged.

ii. The transcript of an extended cross-examination of the Respondent on his initial affidavit, containing many answers and admissions which are said to undermine the Respondent’s credibility and allegations. For example, the Applicant relies on answers indicating or at least suggesting that:

a) the Respondent knew he was attending a settlement meeting;

b) the Respondent does not remember telling his lawyer about any discomfort at the time;

c) the Respondent had been out of hospital for several weeks prior to the settlement meeting, was on no medication for depression, and had undergone no counselling in that regard;

d) the Respondent acknowledges that matters were discussed “issue by issue” at the meeting, and that many of the handwritten terms were prepared by his lawyer;

e) the Respondent acknowledged prior use of the August 2006 separation date, and awareness that it was also being used during the settlement meeting;

f) the Respondent reviewed the handwritten document before it was signed, and was aware of the various payment obligations set out therein; and

g) the Respondent was able to drive himself to London and back after the settlement meeting on May 4, 2010, (although the Respondent continues to emphasize this was very difficult for him and probably unwise in the circumstances).

[11] In short, the Applicant says the Respondent knew what he was doing and made a binding agreement that should be upheld, whereas the Respondent says that he has filed sufficient evidence to at least raise a triable issue as to whether the agreement should be binding in the circumstances.

Analysis

[12] Although not formally framed as a motion for summary judgment, in my view the Applicant’s motion is certainly of that nature, insofar as it seeks a final order without trial on all or part of her claim; see Rule 16(1) of the Family Law Rules. At the hearing before me, this was not disputed and the matter was argued on that basis, with both parties expressly citing authority dealing with the proper interpretation and application of Rule 16.

[13] The test for summary judgment in the family law context is set forth in Rule 16(6), which reads as follows: “If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.” [Emphasis added.]

[14] Numerous authorities have stressed that the Court’s function on such a motion is not to resolve an issue, (through a summary procedure to be applied as an adequate substitute for trial), but to determine whether a genuine issue for trial exists. See, for example, Crawford v. Crawford, [2000] O.J. No. 4746 (S.C.J.), and Julott v. Julott, 2004 34359 (ON SC), [2004] O.J. No. 1392 (S.C.J.).

[15] While a party responding to a motion for summary judgment has an obligation pursuant to Rule 16(4.1) to tender evidence and not simply rest on mere allegations, the ultimate onus remains with the moving party, who must satisfy the court that it is clear a trial is unnecessary. See, again, Crawford v. Crawford, supra, and Julott v. Julott, supra.

[16] During argument before me, considerable attention was focused on the manner in which the Court should determine whether or not there is a “genuine issue requiring a trial”, and the tools that may or may not be brought to bear in that regard.

[17] In that regard, it was not really disputed that many of the Applicant’s arguments inherently and necessarily ask that I decide the motion in her favour by:

a) weighing the evidence, (e.g., by finding that Dr Farrell had little basis for her opinions, which also are said to have little probative value in determining the Respondent’s condition on May 4, 2012);

b) evaluating the credibility of a deponent, (e.g., by finding that the Respondent’s affidavit evidence has been substantially undermined by the answers given by him on discovery, the medical documentation, and earlier court filings); and

c) drawing reasonable inferences from the evidence, (e.g., by concluding that such factors as the involvement of independent legal counsel, absence of contemporaneous complaint of difficulties, and ability to drive to London and back after the meeting, all suggest indirectly that the Respondent was not suffering from any incapacitating difficulties at the time and knew precisely what he was doing in signing the handwritten document).

[18] This raises a threshold question as to whether or not the Court has such powers in this particular context; a question which unfortunately does not seem to have been authoritatively determined by our Court of Appeal.

[19] Prior to January of 2010, the answer to that threshold question almost certainly was “no”. In particular, drawing analogies to authoritative interpretations of Rule 20 of the Rules of Civil Procedure dealing with summary judgment, (which at the time was worded in a manner similar to Rule 16 of the Family Law Rules), the authorities made it clear that Rule 16 did not permit evaluations of credibility, weighing of evidence, or the drawing of factual inferences, as these were all functions reserved for the trier of fact. See for example Yeomans v. Yeomans, [2001] O.J. No. 2174 (S.C.J.), and more importantly, Kallaba v. Bylykbashi, 2006 3953 (ON CA), [2006] O.J. No. 545 (C.A.).

[20] If that law still governs the proper interpretation and application of Rule 16 of the Family Law Rules, then it seems clear to me that this particular matter cannot be approached in the manner requested by the Applicant, and in my view, I then would be unable to find there is no genuine requiring a trial of the Applicant’s claim and/or the Respondent’s defence.

[21] In that regard, the simple reality is that the Respondent has tendered evidence which, on its face, raises and supports an assertion that the ostensible settlement agreement between the parties should not be enforced; i.e., because there are reasons why the Respondent may be entitled, (if the evidence upon which he relies ultimately is accepted), to relief pursuant to s.56(4) of the Family Law Act.

[22] Without any ability to assess the credibility of the Respondent’s evidence in the circumstances, (having regard to possibly contradictory evidence given during cross-examination), or to determine its relevant weight, (in light of other evidence and competing inferences the Applicant necessarily asks me to draw), it is impossible to summarily decide that the proper outcome concerning enforceability of the ostensible agreement is a foregone conclusion, and that a trial clearly is not required to resolve the dispute.

[23] Such a conclusion is buttressed by numerous decisions, rendered prior to January of 2010, indicating that such issues, (relating to whether there should be enforcement or court sanctioned deviations from ostensible settlement agreements between family law litigants), are not amenable to determination by summary judgment if there are disputed facts and evidence.

[24] In that regard, I am guided by cases such as Yeomans v. Yeomans, supra, Kelly v. Kelly (2002), 2004 4328 (ON CA), 72 O.R. (3d) 108 (C.A.), and Dalgleish v. Dalgleish, [2006] O.J. No. 227 (C.A.), all of which involved instances of summary judgment being rejected as a means of resolving such issues where evidence was unclear, conflicting and/or gave rise to issues of credibility.

[25] In Kelly v. Kelly, supra, for example, our Court of Appeal was faced with a situation in which a wife was requesting deviation from a domestic contract dealing with support on the grounds of her alleged health deterioration, depression, mental illness and vulnerability at the time of the ostensible agreement. Pursuant to Rule 20 of the Rules of Civil Procedure, (as it then stood), the husband moved for summary judgment dismissing the wife’s claim, relying on the agreement and the wife’s receipt of independent legal advice prior to the agreement being signed. It was common ground that determination of whether the court should permit deviation from the ostensible agreement required application of the analysis mandated by the Supreme Court of Canada in Miglin v. Miglin, 2003 SCC 24, [2003] 1 S.C.R. 303, which directed a two stage inquiry; i.e., successive consideration of whether the agreement was negotiated fairly, and then whether the agreement conformed to legislative objectives.

[26] The motions judge in Kelly v. Kelly granted the husband’s motion for summary judgment, dismissing the wife’s claim. However, the Court of Appeal then overturned that ruling at first instance, emphasizing that it generally was inappropriate to resolve such issues by way of summary judgment. Its comments in that regard included the following observations at paragraph 22 of the decision:

No case is immune from an order for summary judgment. Rule 20, however, is often poorly suited to dispose of claims that must be resolved by applying the detailed analysis required in Miglin. That analysis typically requires the court to draw inferences, determine credibility and find facts in the face of disputed evidence. These determinations lie in the domain of the trial judge, not the motions judge.

[27] So again, to the extent the law regarding proper interpretation and application of Rule 16 of the Family Law Rules remains unchanged, and prohibits resort to credibility determinations, weighing of evidence and drawing of inferences in addressing motions for summary judgment, I think it impossible to embark on the exercise requested by the Applicant, summarily rejecting the Respondent’s evidence and arguments, (by assessing and weighing the evidence in a manner favourable to the Applicant), and granting the final order the Applicant has requested.

[28] However, the Applicant contends that the law governing the proper interpretation and application of Rule 16 has changed, in the wake of express and significant amendments made to Rule 20 of the Rules of Civil Procedure, effective January 1, 2010.

[29] Those amendments made slight revisions to the wording of the Rule 20.04(2) test for summary judgment, making the relevant “test” now almost identical to the unchanged wording of Rule 16 of the Family Law Rules. In particular, the provisions of Rule 20.04(2) now indicate that the court shall grant summary judgment if the court is satisfied that “there is no genuine issue requiring a trial with respect to a claim or defence”.

[30] However, unlike Rule 16 of the Family Law Act, Rule 20 of the Rules of Civil Procedure also was amended to expressly confer additional powers on the motions judge, to assist in determinations as to whether evidence indicates a “genuine issue requiring a trial”.

[31] In particular, pursuant to Rule 20.04(2.1) of the Rules of Civil Procedure, a motions judge making the necessary summary judgment determination must “consider the evidence submitted by the parties” and now may exercise any of the following powers, “unless it is in the interest of justice for such powers to be exercised only at trial”:

1. Weighing the evidence.
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence.

[32] It has been argued that a similar expansive approach now is permitted by Rule 16 of the Family Law Act, notwithstanding the absence of any similar amendments to that Rule, and the Court of Appeal’s previous and binding judicial interpretation, in Kallaba v. Bylykbashi, supra, of that unchanged legislation.

[33] In particular, having regard to the accrued problems and stated policy justifications for reform underlying the Rule 20 amendments, it has been argued that the additional summary judgment powers expressly conferred by Rule 20.04(2.1) should be imported into Rule 16 of the Family Law Rules indirectly. Specifically, it is said this may be done through use of Rule 1(7) of the Family Law Rules, which reads as follows:

MATTERS NOT COVERED BY RULES – If these Rules do not cover a matter adequately, the court may give directions, and practice shall be decided by analogy to these rules, by reference to the Courts of Justice Act and the act governing the case and, if the court considers it appropriate, by reference to the Rules of Civil Procedure.

[34] Such arguments found favour and were accepted in Steine v. Steine, 2010 ONSC 4289, [2010] O.J. No. 3331 (S.C.J.); a case upon which the Applicant in the case before me strongly relies. In particular, at paragraph 56 of that decision, after consideration of Rule 1(7) of the Family Law Rules and various authorities emphasizing the policy rationale underlying the Rule 20 amendments, Justice Mulligan stated the following:

I am satisfied that FLA rule 16(6) is now bolstered by the new tools that motions judges can have regard to under Rule 20 of the Rules of Civil Procedure. The additional ability to weigh evidence, evaluate the credibility of deponents and draw reasonable inferences gives motion judges additional tools to determine and week out those cases where no genuine issue requiring a trial exists.

[35] However, numerous other decisions have rejected such a conclusion and approach, setting forth detailed reasons for their disagreement with the suggestion.

[36] For example, in Starr v. Gordon, 2010 ONSC 4167, [2010] O.J. No. 3223 (S.C.J.), Justice Perkins commented as follows:

The respondent submits that the recent amendments to the Rules of Civil Procedure governing summary judgment should be imported into the Family Law Rules, but I do not agree. The existence of civil rules provisions that are not found in the Family Law Rules or that are more detailed or specific than provisions in the Family Law Rules is not, of itself, proof or even evidence that the Family Law Rules do not “cover a matter adequately”. Sometimes the omission of a civil rules provision is deliberate: see Van de Vrande v. Butkowsky, 2010 ONCA 230 (C.A.), at par.11, where the Court of Appeal considered a provision of the Small Claims Court Rules almost identical to r.1(7) of the Family Law Rules. Each case must be looked at to see if the Family Law Rules as a whole do not respond adequately to the situation. Even if they are lacking in some respect, there are still two places to look first – the Courts of Justice Act and the statute governing the case - - to see if there is guidance there. Only then, and only if the court considers it appropriate, should there be reference to the civil rules. In family cases, there might be situations where it is preferable to adopt some other approach than that found in the civil rules, particularly in matters where the civil rules have nothing specific to say – custody, access, child protection and support enforcement matters, for example. The availability of summary judgment in family law has a very different history from its inception in civil cases. It would not be justified to assume that the Family Rules Committee has simply forgotten to catch up with the recent amendments to the civil rules. I do not consider it appropriate to go beyond rule 16.

[37] Similar comments were made by Justice McDermot in Children’s Aid Society of Simcoe (County) v. P.(O.), [2012] O.J. No. 1656 (S.C.J.), at paragraphs 31-32:

Amendments similar to Rule 20.04(2.1) were not made to the Family Law Rules, and we are left with the former law which prevents me from weighing the evidence of the parties, making judgments as to credibility or drawing inferences from the evidence. It would be tempting to utilize Rule 1(7) of the Family Law Rules to adopt by reference powers set out in Rule 20.04(2) in a motion for summary judgment under Rule 16. I do not believe that this is appropriate; the Family Law Rules are in my view intended to act as a complete code where possible governing the conduct of family law proceedings. Rule 1(7) is only intended to apply where the “rules do not cover a matter adequately” and Rule 16 has been successfully used and applied on an ongoing basis since the Family Law Rules were promulgated in 1999; there is no reason to believe that the rule is inadequate other than the fact that Rule 20.04 was amended in 2008 (sic) in order to grant the court additional powers in civil matters. If a similar amendment is required to the Family Law Rules, it is up to the Family Law Rules Committee to amend the rule respecting summary judgment if the committee feels that there is a problem with the rule that requires remedy; Rule 1(7) is not intended for that purpose. Incorporating provisions from the Rules of Civil Procedure under Rule 1(7) is only to be used sparingly in my view where there is a clear omission or deficiency in the Family Law Rules which calls for a remedy. That is not the case here.

It is accordingly clear that cases decided under Rule 20.04(2) should be viewed with caution; based upon the present state of the law, the court deciding a family law summary judgment matter does not have the tools under Rule 20.04(2.1) regarding the use and weighing of the evidence.

[38] Similar comments and conclusions have been expressed in numerous other decisions, which seem to indicate that the balance of judicial opinion in the Superior Court of Justice is now inclined largely towards rejection of the suggestion adopted in Steine v. Steine, supra. See, for example, the following additional decisions: Catholic Children’s Aid Society v. Hamilton v. M.A., 2012 ONSC 267, [2012] O.J. No. 223 (S.C.J.), at paragraphs 26-30; Children’s Aid Society of Toronto v. T.H., 2012 ONSC 3916, [2012] O.J. No. 3032 (S.C.J.) at paragraph 26; McCash v. McCash, [2012] O.J. No. 3647 (S.C.J.), at paragraph 52; Virc v. Blair, 2012 ONSC 7104, [2012] O.J. No. 5935 (S.C.J.), at paragraphs 8-12; Children’s Aid Society of London and Middlesex v. K.B.P., 2013 ONSC 5, [2013] O.J. No. 75 (S.C.J.), at sub-paragraph 21(b); and Children’s Aid Society for the Districts of Nipissing and Parry Sound v. C.L.B., [2013] O.J. No. 2162, at paragraph 21.

[39] I too prefer the approach to interpretation and application of Rule 16 adopted in Starr v. Gordon, supra, and Children’s Aid Society of Simcoe (County) v. P.(O.), for the reasons expressed therein.

[40] As I therefore do not have powers to weigh evidence, determine credibility and draw inferences in the manner suggested by the Applicant, my preliminary conclusion, set forth above at paragraph 22, remains unchanged; i.e., based on the conflicting and disputed evidence before me, I am unable to say that there is “no genuine issue requiring a trial”.

[41] Moreover, I am not convinced that summary judgment would be appropriate in this case, even if I had jurisdiction to exercise the additional powers conferred by the Rule 20.04(2.1) amendments.

[42] Those amendments were the subject of extended consideration by our Court of Appeal in Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, [2011] O.J. No. 5431 (C.A.)[^1], which addressed many aspects of the “new” Rule 20 in a detailed manner. For present purposes, I believe the observations and guidance contained therein may be summarized as follows:

a) Limitations of summary judgment - Importance of trials:

While acknowledging that the rule amendments were intended to promote summary judgment as a means of resolving litigation more expeditiously and with comparatively less cost, (removing many of the constraints established by earlier jurisprudence), the Court of Appeal emphasized that the purpose of the Rule 20 amendments was “to eliminate unnecessary trials, not to eliminate all trials”[^2]. In certain circumstances, a full trial process will still be essential to accomplish that goal; i.e., because of the many qualitative advantages it offers compared to the limitations necessarily inherent in the summary judgment process, (even in its expanded form). In the context of addressing motions for summary judgment, the guiding consideration is whether the more limited summary judgment process is capable of providing an “appropriate means for effecting a fair and just resolution of the dispute before the court”.[^3] In some cases, it will be “safe” to determine the matter via the summary judgment process. In others, neither the motion record nor a motion record supplemented via the new summary judgment “tools” will be adequate to displace the need for pursuing a just result through the full trial process. This “pivotal determination” has to be made on a “case-by-case basis”.[^4]

b) Types of cases amenable to summary judgment:

Emphasizing that the following categorization was general, non-exhaustive, not mutually exclusive, and not even necessary for proper analysis by a summary judgment motions judge, the Court of Appeal suggested there were three types of cases amenable to summary judgment:

1. Cases where the parties agree it would be appropriate to determine an action by way of a summary judgment motion, (although the court maintains an overriding discretion);
2. Cases where claims or defences are shown to be without merit, (possibly through use of the expanded powers provided by the amended rule); and
3. Cases where the motions judge is satisfied “that the issues can be fairly and justly resolved” by exercising the expanded powers provided by the amended rule.[^5]

c) “Interest of justice” considerations, and the new “full appreciation test”:

The expanded powers offered by the amended summary judgment rule, (to weigh evidence, evaluate credibility and draw reasonable inferences), may only be exercised in the “interest of justice”. The Court of Appeal regarded this as “limiting language” that “guides the determination” of when the powers should be exercised, and reflects the aim of the civil justice system to provide a “just result in disputed matters through a fair process”. Having regard to the inherent limitations of the summary judgment process compared to a full trial, the Court of Appeal held that, in deciding whether to exercise the expanded powers offered by the amended summary judgment rule, the motion judge must ask the following question: “Can the full appreciation of the evidence and issues that is required to make dispositive findings be achieved by way of summary judgment, or can this full appreciation only be achieved by way of a trial?”[^6]

d) Hallmarks of cases where such a “full appreciation” is not possible and summary judgment is inappropriate:

In cases calling for “multiple findings of fact on the basis of conflicting evidence emanating from a number of witnesses and found in a voluminous record”, a summary judgment motion generally cannot serve as an adequate substitute for the trial process. The motion judge “simply cannot achieve the full appreciation of the evidence and issues that is required to make dispositive findings”, the “full appreciation test is not met”, and the “interest of justice” requires a trial.[^7]

e) Hallmarks of cases where such a “full appreciation” is possible and summary judgment is appropriate:

Not surprisingly, satisfaction of the “full appreciation” test will be more likely in cases lacking the above complications; e.g., in “document-driven cases with limited testimonial evidence”, “cases with limited contentious factual issues”, and “cases where the record can be supplemented to the requisite degree at the motion judge’s direction by hearing oral evidence on discrete issues”.[^8]

[43] In the case before me, I am not satisfied that review of the “paper” testimony, records and transcript before me permits a “full appreciation” of the issues and evidence necessary for a fair and just adjudication of the matters raised by Mr Bruxer, in response to the Applicant’s motion for a final order.

[44] In my view, and as the record before me suggests, the issues raised by the Respondent, in relation to possible application of s.56(4) of the Family Law Act, supra, are not primarily “document driven”, but necessarily turn instead primarily on assessment of:

i. disputed lay testimonial evidence from a number of witnesses concerning events that occurred before, during and shortly after the meeting, as well as subjective and objective evidence of the Respondent’s condition at the time; and

ii. disputed expert testimonial evidence as to the implication of those events and that condition, (helping to determine the significance, if any, to be attributed to much of the medical documentation that has been placed before me).

[45] In my opinion, these are not the hallmarks of a case amenable to summary judgment under the “full appreciation” test.

[46] Rather, it seems to me that assessment of the sort of evidence already before me, in a case of this nature, without the benefit of seeing and hearing directly from the lay and expert witnesses, and without the benefit of a proper expert report or reports where appropriate, would be most unsatisfactory, and jeopardize the prospect of arriving at a fair result through a just process.

Conclusion

[47] For the reasons set out above, I feel the matter is not amenable to summary judgment or disposition, which effectively would be required to grant the motion relief requested by the Applicant. In particular, having regard to all the circumstances, I am unable to say that “there is no genuine issue requiring a trial”, as far as this matter is concerned.

[48] To the contrary, in my view the question of whether or not the parties’ ostensible agreement should be enforced according to its terms or set aside pursuant to s.56(4) of the Family Law Act, supra, properly requires determination by way of a trial.

[49] However, the parties, and the Applicant in particular, also should not be obliged to continue litigation of all issues possibly remaining between the parties, until that fundamental question has been decided. Pursuant to Rule 16(9) of the Family Law Rules, I accordingly direct a trial of the issue set forth in the previous paragraph, (i.e., paragraph 48).

[50] Pursuant to Rule 16(9)(b), and subject to any further order of the court, (including any order made by the trial judge), I also make the following additional directions:

a. pending the outcome of the trial of the issue, the Applicant’s request for relief set forth in her notice of motion dated July 9, 2012, (at Tab 3 of the Continuing Record), shall be stayed;

b. pending the outcome of the trial of the issue, the Respondent’s request for relief set forth in his notice of motion dated October 24, 2012, (at Tab 8 of the Continuing Record), apart from that set forth at paragraph 5, (requesting an Order that the handwritten settlement document signed by the parties, dated May 4, 2012, be set aside and found enforceable as per its terms), shall be stayed;

c. pending trial, the Applicant may move for interim support or other interim relief, and the Respondent shall be entitled to notice of any such motion, and be able to respond to any such motion, as if a formal Answer had been filed in response to the Applicant’s application;

d. at trial, the Respondent shall lead evidence in support of his request for relief pursuant to s.56(4) of the Family Law Act, supra, to which the Applicant then may respond prior to the Respondent’s reply, (if any);

e. documentary disclosure prior to trial shall be governed by the Family Law Rules, but limited to disclosure of documents relating to the issue to be tried;

f. within one month of the release of this decision, the parties shall exchange lists of all non-expert witnesses they intend to call at trial;

g. in relation to any expert witnesses, (from whom opinion evidence is contemplated in relation to the issue to be tried), the parties shall ensure compliance with the provisions of Rule 21 of the Family Law Rules, and Rule 21(10) in particular; and

h. at trial, if a party calls as a witness any individual who previously has sworn an affidavit served and filed in relation to the Applicant’s motion at Tab 3 of the Continuing Record, or the Respondent’s motion at Tab 8 of the Continuing Record, that party may have the witness adopt the earlier affidavit evidence as all or part of the evidence-in-chief of that witness, (in which case such affidavit evidence shall then form part of that evidence-in-chief for the purpose of cross-examination), but is not obliged to do so.

Costs

[51] Because my decision was reserved, the parties were unable to make any submissions regarding costs of the hearing.

[52] My preliminary view is that costs of the parties’ respective stayed motions, and of the hearing before me on September 5, 2013, should be reserved to the judge deciding the issue to be determined at trial.

[53] However, if the parties disagree, and/or are unable to reach an agreement on costs in that regard, the parties may serve and file written cost submissions, not to exceed three pages in length, (not including any bill of costs), within two weeks of the release of this decision.

[54] If no written cost submissions are received within two weeks of the release of this decision, costs of the parties’ motions, and of the hearing before me on September 5, 2013, shall be reserved to the judge deciding the issue to be determined at trial.

Ian F. Leach Justice

Released: September 11, 2013

[^1]: Hereinafter referred to as “Combined Air, supra”. [^2]: Combined Air, supra, at paragraphs 4, 38. [^3]: Combined Air, supra, at paragraphs 46-49. [^4]: Combined Air, supra, at paragraphs 38-39. [^5]: Combined Air, supra, at paragraphs 40-44, and 72-75. [^6]: Combined Air, supra, at paragraph 50. The Court of Appeal emphasized the “very important distinction” between “full appreciation” in the sense intended here, and achieving familiarity with the total body of evidence in the motion record”. In particular, simply being knowledgeable about the entire content of the motion record, or making a simple assessment as to whether the motion judge is capable “of reading and interpreting all of the evidence that has been put before [him or her]”, is not the same as “fully appreciating the evidence and issues in a way that permits a fair and just adjudication of the dispute”. More is required. Specifically, “a motion judge is required to assess whether the attributes of the trial process are necessary to enable him or her to fully appreciate the evidence and issues posed by the case”. In other words, the motions judge must consider if meeting the “full appreciation” test requires an opportunity to hear and observe witnesses, have the evidence presented by way of a trial narrative, and experience the fact-finding process first hand. See Combined Air, supra, at paragraphs 53-55. [^7]: Combined Air, supra, at paragraph 51. [^8]: Combined Air, supra, at paragraph 52.