ONTARIO

SUPERIOR COURT OF JUSTICE

Court File No.: 11-278
Date: 20131011

Between:

A.P.

Ms D. Lyons-Batstone, for the Applicant

Applicant

• and -

K.B.

Erroll G. Treslan, for the Respondent

Respondent

Heard: October 11, 2013

REASONS FOR DECISION

ON MOTION FOR SUMMARY JUDGMENT

Conlan J.

Introduction

1The Respondent father, K.B., moves for summary judgment dismissing the spousal support, property and custody claims advanced by the Applicant mother, A.P.

2There are two children: a seven year old boy and six year old girl.

3The mother commenced her Application in Barrie, however, the proceeding was subsequently transferred to Owen Sound.

4On September 1, 2011, Justice Healey made a consent Temporary Order providing, among other things, that the parties share joint custody of the children; that the children would continue to attend school in Port Elgin; and that the children would reside with the father through the week and one out of every three weekends, while the children would reside with the mother two out of every three weekends.

5The father lives in Port Elgin. The mother lives in Stayner.

6The mother filed no responding materials on the father’s motion for summary judgment. Neither she nor her counsel bothered to even show up in Court in Owen Sound on October 11, 2013, despite proper and timely service of the motion materials.

7In fact, it appears to me that the mother has done very little on this file since the issuance of Justice Healey’s Temporary Order.

The Law

8As the moving party, the father bears the burden of proving, on a balance of probabilities, that there is no genuine issue requiring a trial.

9The paramount consideration in matters of custody and access are the best interests of the children.

10Justice Chappel, in Catholic Children’s Aid Society of Hamilton v. A.(M.), [2012] O.J. No. 223 (S.C.J.), has provided a thorough analysis of the law of summary judgment in the family law context. I agree with Her Honour’s analysis.

11In my opinion, the expanded powers in Rule 20 of the Rules of Civil Procedure do not apply to cases governed by the Family Law Rules (“FLR”). There is no reason to look beyond Rule 16 of the FLR and the jurisprudence decided thereunder.

12I must ask myself whether a full appreciation of the evidence and the issues that is required to make dispositive findings may be achieved by way of summary judgment, or can it only be achieved through a trial?

13I am required to take a good hard look at the evidence. Practically speaking, I should consider whether the mother has any realistic chance of success.

Analysis

14Largely because of the failure of the mother to provide proper financial disclosure, the record before me is incomplete on the spousal support and property issues.

15This is not the fault of the father.

16On the basis of the evidence provided by the father, however, I am not satisfied on balance that the spousal support and property matters do not raise genuine issues requiring a trial. I do not have a full appreciation necessary to make dispositive findings of fact on those issues.

17As such, the father’s motion for summary judgment is dismissed regarding the mother’s claims for spousal support and property.

18The failure of the mother to “play ball” and comply with reasonable disclosure requests made by the father will be dealt with by way of costs and an Order that I am prepared to make today compelling the mother to disclose certain things by specific dates, failing which the father may bring a motion to strike her pleadings and/or find her in contempt. I will hear further submissions from counsel for the father as to the ingredients sought in the disclosure Order.

19My conclusion is different on the issues of custody and access.

20The Report of the Office of the Children’s Lawyer (“OCL”) is thorough and completely uncontradicted by any evidence from the mother. The OCL recommends, unequivocally, that the father have sole custody of the children.

21That recommendation is consistent with the uncontradicted evidence of the father that the children have been thriving in his primary care since the date of Justice Healey’s Temporary Order. The Affidavit evidence of the father is detailed, credible and reliable.

22There is nil evidence before me that the mother has any realistic plan to be the sole custodial parent of the two children, as she seeks in her Amended Application.

23I am satisfied on balance that there is no genuine issue requiring a trial on the matters of custody and access. Clearly, on the evidence before me, it is in the best interests of the children that the father be granted sole custody. So ordered.

24The father’s motion for summary judgment dismissing the mother’s claim for sole custody of the children is granted.

25Regarding access, the children deserve to have their mother in their lives. Maximum contact with both parents, provided it is meaningful and beneficial to the children and in their best interests, ought to be encouraged.

26The recommendations of the OCL achieve just that.

27Subject to the relatively minor amendments suggested by the father and outlined in his Notice of Motion at tab 22 of the Continuing Record (clause 3 on page 1 and clause 8 on page 2), which changes I find to be eminently reasonable, I am satisfied that the recommendations of the OCL regarding access between the two children and their mother ought to be implemented, in the best interests of the children. So ordered, including the changes suggested by the father and referred to immediately above.

28There is no genuine issue requiring a trial on the issue of access. The father’s motion for summary judgment on that issue is granted.

Conclusion

29The father’s motion for summary judgment on the issues of custody and access is granted. A Final Order shall issue accordingly.

30Otherwise, the father’s motion is dismissed. The mother’s spousal support and property claims shall proceed to trial, unless of course they are disposed of by way of settlement or future Court Order.

31I will hear submissions on costs.

Conlan J.