Hi, Debra. An update and a question. Stepdaughter's mom has now been told she will not get Costs for our filing for Contempt. Judge said given the history our filing was understandable. Also, SD's mom apparently has no more Legal Aid funding. The mom didn't tell us or give us the filed change, but when the mom made a proposal and my husband copied the attorney and said for her to go through her attorney to file a proper proposal addressing all issues, the former attorney had a copy of Form 4 to drop attorney couriered to us. Now my question is: If the mom decides to try to go to trial, having been told she has ZERO chance and not having changed how much she sees the child (though the judge said that's the only way things would change), do you think we could go into this Speak To on Monday and ask for a Summary Judgement?
Province/Territory relating to question: Ontario
I cannot give legal advice but only information.
And I also don't know all the details.
But Summary Judgments in family law matters are extremely hard to get.
Essentially you can succeed in the following cases/
1) where it can be shown that there is no genuine issue requiring a trial
2) where a party’s pleading sets out no reasonable claim or defence, or
3) where the only genuine issue before the Court is a question of law.
There has been a revision of Rule 20 of the Rules of Civil Procedure.
Is there a genuine issue when the mom is asking the child be able to see her abuser? Not see the mom, but see the abuser? There is no reasonable claim or defence. The mom has been told that she has ZERO chance at trial and she hasn't been seeing the child anymore, even though told that the only way anything will ever change is if, over time, she sees the child more.
Hmmm. Question of law. I guess that's more open-ended. It's not a question of law, it's a question of potentials and risk. Is it risky to let a child see someone who has abused her the last 3 times that she was allowed to see him?
Rule 20 essentially makes it somewhat easier to succeed on a summary judgment application. It also provides for potential less onerous cost consequences should the application fail and so makes a summary judgment application a bit easier to consider.
One of the main differences in the revised Rule is that the old Rule only allowed for a summary judgment when there was no genuine issue for trial. Now, if there is no genuine issue “requiring a trial” then the Court should grant the motion.
And, now the motion Judge can actual consider evidence during the motion for summary judgment. In fact the Judge can actually hold a “mini-trial” and even go so far as to hear oral testimony. The Judge can then grant the judgment, dismiss it, or make an order that specifies which facts are in dispute and what issues need to be tried.
In terms of costs the new Rule says that cost may be ordered on a substantial indemnity basis if one party brought the motion unreasonably on in bad faith.
Your points are well taken but what you are arguing is likely for a Judge to determine based on evidence.
Also, a reminder that there are over 100 pages of documentation of abuse and mom allowing abuse now in the files from CAS.
You can try it but it won't be easy to win.
I know there is but that doesn't mean there are not facts that a Judge must consider when making a decision.
You can try it but may get stuck with a lot of her costs.
Can't see any facts on the mother's side. None at all. She's allowed to see the child now 7 days per week, on request, and doesn't use it.
She doesn't have any costs. Legal Aid is gone and all she'd have is parking and gas. Meanwhile, we have lost wages, plus parking and travel.
Hmmm. So if they don't allow Summary Judgement, we'd be liable for her costs?
She will get 1/3 or 2/3 of her costs and the Court will order costs for her time regardless of whether she has out of pocket expenses or not.
The Court will not give her costs the same way it would if she had a lawyer but self-representing parties get compensated for their time if they win.
Is saying no to Summary Judgement considered a win?
We're already there for a Speak To that her lawyer requested, and the lawyer is no longer representing her.
Can you please hold on one minute?
Sorry. I had to take a call.
If you lose the motion for summary judgment then she wins the motion.
It used to be you would have to pay 2/3 of her costs. Now it could be 1/3 or 2/3s.
Okay. We won't do that, then. We'll just wait it out. We don't want to give her any momentum.
You are very welcome.