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Ulysses101, Lawyer
Category: Canada Law
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Experience:  11 years experience in Canada family law, plus criminal, civil, and employment
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Initiates a Summary Judgement Motion against. The judge

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Mary initiates a Summary Judgement Motion against John. The judge awards a the motion to John even though he did not initiate it. The Judge does not specifically order anything as part of his decision and leaves his decision to interpretation of the parties as to what the order should state. The parties exchange draft orders. Who is responsible for filing the orders consented to? Is there a time limit deadline for filing the orders?

Thank you for the question.

Did either of you have a lawyer at the time of the hearing?

And Mary brought a motion for summary judgement, that was the only thing argued at the hearing?

Customer: replied 25 days ago.
I found my answers in the Family Law Rules. Mary had a lawyer and hence the lawyer is responsible for initiating the draft order. John has to reply on whether he agrees or disagrees within 10 days.Hence allow me to extend on the question to leverage your engagement. If the judge stated in his conclusions of the summary judgment "although the mortgage is valid, I find that there have been no advances under the Mortgage", then would it be appropriate for John to suggest a more complete statement that is enforceable as an order by suggesting the following text "although the Mortgage with a principal of $X registered on dd/mmm/yyyy against property 123 Street Name, City, Province is valid, the court finds that there have been no advances under the Mortgage"Thank you.

Yes, the Applicant/Moving party, if they have a lawyer, is to draft the order. If no lawyer, the other party's lawyer. If no lawyers, the court will draft the order.

If the only subject of the hearing was Mary's summary judgement motion, and the court found that there is a triable issue, then the motion is dismissed and the case moves on to trial. It's rare that the court will make any changes to the interim order, or substitute a final order for the one being requested. The bar for success on a summary judgement is high, and if it's not met then there are usually costs consequences as we discussed.

I mention all of that to clarify the results of a summary judgement motion. It's not a trial. If the court dismissed the motion, then the order will likely just be:

1. Motion of Summary Judgement dismissed

2. Costs to John of a hundred million dollars.

3. Parties to file updated financial statements.

4. Matter adjourned to ...whatever (could be further settlement conference, or trial management conference, or adjourned sine die for examinations out of court, whatever the next step is).

Your suggestion is logical, because you want to be able to rely on these conclusions. But that doesn't mean that it's part of the order. It's in the reasons for judgement which you can refer to later of course, but not all conclusions and reasons go into the court order.

Look at it this way. Were you asking for an order that there be a finding that there have been no advances under the mortgage? I suspect that you weren't asking for that, at least not in writing by bringing a motion of your own.

That finding clearly helps you and the conclusion can be relied upon because it's in the judge's written reasons. However, I don't know that you're going to get far demanding it to be in the order itself.

You're not drafting the order anyway. Have you got the draft? If you have the draft and the court's endorsement you could attach them and send them to me if you wish, but you probably don't have to. Look at the reasons for judgement after hearing. At the end, it usually says "order to go as follows:..." or something similar. And what's after that is what the judge intends to be in the order itself.

Does that make sense?

Customer: replied 25 days ago.
Great insight Ulysses. Bonus certainly earned.Mary (her lawyer) initiated the Summary Judgement with the requested order to find the mortgage valid and dismiss John's claims stated in his initial Response materials for the case. Among John's (among them that there were no advances on such mortgage). John succeeded in proving there were no advances and hence the judge, although recognized that the mortgage is valid as all the paper work was done properly including an acknowledgement of funds transfer signed by John to keep peace in the family, the fact remains that there were no advancements.The draft order was initiated by Mary's lawyer with the initial proposed statements which are basically every sentence the judge wrote in his conclusion statements as such: Summary Judgment is granted for the John. This motion raises no genuine issues that require a trial. Although the mortgage is valid, I find there have been no advances under the mortgage. John shall provide his costs submissions within X weeks of today’s date and Mary shall provide her costs
submissions within Y weeks of today’s date. Such submissions shall be no more than Z pages, exclusive of their outline of costs.So based on your insight none of the sentences above constitute orders? Even the request to submit costs by the dates requested or the page limit on cost submissions? To me they do not seem to be required to be registered as orders as they're just procedural endorsements to determine costs.Thanks again.

Yes, all of those things after the colon would be part of the order in my view.

Although it was Mary's motion, so the order should say that Mary's motion is dismissed rather than granted for John.

If you want, take the draft to the court and see if you can speak to the registrar/clerk who issues orders, who will have to look it over anyway, and ask what they think. Even as Mary's lawyer has drafted it, that seems weird to me.

Or write to Mary's lawyer and ask the lawyer to review the draft, which you assume was prepared and send to you by that lawyer's office, and ask specifically if that lawyer believes that this draft accurately reflects the Judge's endorsement.

How's that? Just don't sit on it, if you don't act within 10 days then they can have the order issued on the presumption that you're fine with it.

Customer: replied 25 days ago.
I am confused a bit. Before you suggested that since those sentences in the judge's CONCLUSION section of his SJM decision they do not constitute orders, they're just conclusions. But on your last note you agree that they should be "part of the order" to be registered formally. The judge has yet to decide on costs btw.Would it not be prudent to ask Mary's lawyer to consent until the costs ruling is released to register both orders with content that makes sense?

The judge might also right a summary of the evidence in the Reasons for Judgement, but that doesn't all go into the order.

The judge may well conclude many things, only some of which go into the order. The judge is likely to repeat themselves if they lead to a conclusion earlier, then reiterate in the "order to go as follows:... " section.

The costs decision will lead to a different order made on a different date. Right? Orders should be issued as quickly as reasonably possible so that the parties can be held to them.

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