Court File and Parties

Court File No.: FC-19-60109 Date: 2025-10-16 Ontario Superior Court of Justice

Between: Elizabeth Williams McCormack, Applicant And: Recardo McCormack, Respondent

Counsel: Matthew Tubie, Counsel for the Applicant Peter B. Cozzi, Counsel for the Respondent

Heard: October 15, 2025

Summary Judgment Ruling

D.A. Jarvis, J.

Introduction

[1] The respondent has brought a motion for summary judgment based on the terms of a Separation Agreement ("the Agreement") between the parties dated November 24, 2023. The applicant opposes the motion. For the reasons which follow, the motion is granted.

The Facts

[2] The parties signed the Agreement on November 24, 2023. The applicant was represented by counsel; the respondent represented himself. The Agreement was prepared by the applicant's lawyer.

[3] The following terms of the Agreement and facts are relevant:

(a) The Agreement was purposed to settle all outstanding issues from the parties' marriage. There are no children of the relationship.

(b) The Agreement was intended to be a final disposition of spousal support obligations between the parties and was to be "used as evidence and incorporated into a final decree of divorce or dissolution."

(c) The respondent agreed to pay to the applicant $800 monthly spousal support for three years from August 30, 2021, after which the applicant's entitlement would be "exhausted and terminated on August 30, 2024." There is no dispute that the respondent made the required payments.

(d) The Agreement contained a General Release, a signed waiver of Independent Legal Advice by the respondent and was accompanied by a Consent to the discontinuance of the application started by the applicant signed by her counsel and the respondent.

(e) Before the respondent's support obligation terminated pursuant to the Agreement the parties discussed extending its payment terms. The respondent said that he could extend his support obligations to December 2024. He paid $1,000 monthly to the applicant for the months of September to December 2024. There is no evidence that he agreed to anything else.

(f) There is no evidence of anything in writing such as an amending agreement or email whereby the respondent agreed to a full year extension of his support obligation as suggested by the applicant after the obligation was terminated by the Agreement.

(g) In January 2025, Mr. Cozzi wrote to the applicant's lawyer and forwarded Minutes of Settlement the terms of which finalized the extant proceedings, confirmed the terms of the Agreement and provided for the parties' divorce to be severed from the balance of the relief claimed in the application so that an undefended divorce could be obtained. The respondent signed the proposed Minutes; the applicant declined.

(h) On May 19, 2025, Bateman J. granted leave to the respondent to bring this motion. It was originally scheduled to be heard during the forthcoming November trial sittings of the court but was rescheduled to this date. The respondent's principal affidavit had been served on the applicant shortly after February 18, 2025, but his motion is dated May 29, 2025. The applicant delivered her responding affidavit on October 7, 2025.

[4] The respondent submits that the applicant is bound by the terms of the Agreement whereas the applicant submits that the parties agreed to orally vary the Agreement to provide her with a further year of spousal support and that the four months of payment made by the respondent varied the Agreement. The respondent says that the payments were gratuitous and that there is no evidence that he agreed to do more than provide the respondent with some limited additional support.

Summary Judgment

[5] A Summary Judgment motion can fulfill very important objectives in family law proceedings. It enables the court to make an expeditious, less expensive and proportionate disposition of a case in whole or in part.

[6] The procedure governing a motion for summary judgment is set out in Rule 16 of the Family Law Rules, the relevant provisions of which provide as follows:

RULE 16: SUMMARY JUDGMENT

WHEN AVAILABLE

16. (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.

EVIDENCE REQUIRED

(4) 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.

EVIDENCE OF RESPONDING PARTY

(4.1) 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.

EVIDENCE NOT FROM PERSONAL KNOWLEDGE

(5) 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.

NO GENUINE ISSUE FOR TRIAL

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

POWERS

(6.1) 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.

[7] As stated by the Supreme Court of Canada in Hyrniak v. Maudlin, to succeed on a summary judgment motion, an applicant must prove that there is no genuine issue requiring a trial. "No genuine issue for trial" has been equated with "no chance of success" and "plain and obvious that the action cannot succeed."

[8] A two-step analysis is required. The judge must first determine if there is a genuine issue requiring a trial on the evidence without using the additional fact-finding powers set out in Rule 16(6.1) of the Family Law Rules. If, after this initial determination, there remains a genuine issue for trial, the judge may resort to the additional fact-finding powers to decide if a trial is required. These powers involve the weighing of evidence, evaluating credibility, drawing inferences and possibly receiving oral evidence on the motion. The use of these powers is discretionary.

Analysis

[9] There is no genuine issue for trial. At no time does the applicant allege that she misunderstood the terms of the Agreement. Nor can she point to any statement or representation by the respondent that he agreed to financially assist the applicant beyond December 31, 2024. What is clear is that after the Agreement was signed, nothing appears to have been done to conclude the application, the only outstanding issue being a divorce. That, in my view, was what the respondent was attempting to conclude earlier this year.

[10] The applicant contends that promissory estoppel should apply because she relied on representations made by the respondent that he would provide greater financial assistance to her than he did. There is no persuasive evidence of any such representation. Nor does she say anything more than that she needed to arrange her financial obligations. She knew in November 2023 that her entitlement would be ending on August 31, 2024, in any event. I agree with the respondent that his financial assistance was gratuitous.

[11] Mr. Tubie contends that there are serious credibility issues and that cross-examinations and a trial are needed for what is, at most, $8,000, and much less if credit is given to the respondent for those payments made after August 31, 2024. I disagree. The applicant was required to put forward her best case and she has failed to do that.

[12] Even should there be an issue for trial, the best that the applicant can establish on the evidence before this court is that the parties were having ongoing discussions in July 2024 and that the respondent made four payments after August 31, 2024, after indicating that he could extend support payments to December 31, 2024. Based on that evidence, the applicant's claim must fail.

Costs

[13] As required, each party delivered a Costs Outline and copies of their client's Offer to Settle. The respondent's outline provides a description of the services rendered, time spent and partial indemnity ($3,751) and full recovery ($5,627.40) rates, inclusive of HST. Mr. Cozzi's hourly rate is reasonable for a senior counsel. An Offer to Settle compliant with the Family Law Rules was delivered on or about October 7, 2025. It provided that if the applicant agreed to summary judgment there would be no costs claimed if the offer was accepted before October 14, 2025, and that, if accepted after that date, then the applicant would pay the respondent's costs on a partial indemnity basis.

[14] The applicant's outline did not differ substantially from that of the respondent, although it was lower (about $1,000 less overall with respect to each scale of fees recorded). Mr. Tubie's hourly rate is reasonable. The applicant proposed that the respondent pay to her $2,500, all-inclusive, to finalize the proceedings between them. The Offer is dated October 14, 2025, and was made within twenty-four hours of the return of the motion and so cannot be considered.

[15] The respondent is not entitled to full recovery costs but is entitled to more than the partial indemnity amount claimed. In my view a fair and reasonable award is $4,250 inclusive of disbursements and HST.

Disposition

[16] The respondent's motion for summary judgment is granted.

[17] The divorce shall be severed from the balance of any other outstanding claim in this proceeding and either party may proceed to obtain an undefended divorce.

[18] The applicant shall pay to the respondent all-inclusive costs of $4,250.

[19] All other claims in this proceeding are otherwise dismissed.

The Honourable Justice D.A. Jarvis

Released: October 16, 2025